Receiving or transporting any money, valuable securities or other property knowing the same to have been unlawfully obtained. Fraud by a bailee, banker, agent, factor, trustee, executor, administrator or by a director or officer of any company. An offense against the laws relating to counterfeiting or forgery. False statements made before a court or to a government agency or official, including under United States law perjury and subornation of perjury. An offense against any law relating to the protection of the life or health of persons from: a shortage of drinking water; poisoned, contaminated, unsafe or unwholesome drinking water, substance or products.
Any act done with intent to endanger the safety of any person traveling upon a railway, or in any aircraft or vessel or bus or other means of transportation, or any act which impairs the safe operation of such means of transportation. Piracy; mutiny or revolt on board an aircraft against the authority of the commander of such aircraft; any seizure or exercise of control, by force or violence or threat of force or violence, of an aircraft.
An offense against the laws relating to damage to property. Offenses against the laws relating to importation, exportation or transit of goods, articles, or merchandise. Offenses relating to willful evasion of taxes and duties. Offenses against the laws relating to international transfers of funds. An offense relating to the: a. Unlawful abuse of official authority which results in grievous bodily injury or deprivation of the life, liberty or property of any person, [or] attempts to commit, conspiracy to commit, or participation in, any of the offenses mentioned in this Article, Art.
While many existing U. Common among these are provisions excluding purely military and political offenses. The military crimes exception usually refers to those offenses like desertion which have no equivalents in civilian criminal law. The exception became advisable, however, with the advent of treaties that make extraditable any misconduct punishable under the laws of both treaty partners. With the possible exception of selective service cases arising during the Vietnam War period, 32 recourse to the military offense exception appears to have been infrequent and untroubled.
The political offense exception, however, has proven more troublesome. In its traditional form, the exception is expressed in deceptively simple terms. As a general rule, American courts require that a fugitive seeking to avoid extradition "demonstrat[e] that the alleged crimes were committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion. Contemporary extradition treaties often seek to avoid misunderstandings over the political offense exception in a number of ways.
Some expressly exclude terrorist offenses or other violent crimes from the definition of political crimes for purposes of the treaty; 36 some explicitly extend the political exception to those whose prosecution is politically or discriminatorily motivated; 37 and some limit the reach of their political exception clauses to conform to their obligations under multinational agreements. A number of nations have abolished or abandoned capital punishment as a sentencing alternative. Dual criminality addresses the reluctance to extradite a fugitive for conduct that the host nation considers innocent.
Dual criminality exists when the parties to an extradition treaty each recognize a particular form of misconduct as a punishable offense. Historically, extradition treaties have handled dual criminality in one of three ways: 1 they list extraditable offenses and do not otherwise speak to the issue; 2 they list extraditable offenses and contain a separate provision requiring dual criminality; or 3 they identify as extraditable offenses those offenses condemned by the laws of both nations.
Today, "[u]nder most international agreements Although there is a split of authority over whether dual criminality resides in all extradition treaties that do not deny its application, 46 the point is largely academic since it is a common feature of all American extradition treaties. Thus, dual criminality does not "require that the name by which the crime is described in the two countries shall be same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries.
It is enough if the particular act charged is criminal in both jurisdictions. In the past, some have been unable to find equivalents for attempt, conspiracy, and crimes with prominent federal jurisdictional elements e. As a general rule, crimes are defined by the laws of the place where they are committed.
There have always been exceptions to this general rule under which a nation was understood to have authority to outlaw and punish conduct occurring outside the confines of its own territory. In the past, U. More than a few call for extradition regardless of where the offense was committed. The right of a country to refuse to extradite one's own nationals is probably the greatest single obstacle to extradition.
The first does not refer to nationals specifically, but agrees to the extradition of all persons. Judicial construction, as well as executive interpretation, of such clauses have consistently held that the word "persons" includes nationals, and therefore refusal to surrender a fugitive because he is a national cannot be justified The second and most common type of treaty provision provides that "neither of the contracting parties shall be bound to deliver up its own citizens or subjects The third type of treaty provision states that "neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this convention, but the executive authority of each shall have the power to deliver them up if, in its discretion, it be deemed proper do so.
These three types of treaty provisions have been joined by a number of variants. A growing number go so far as to declare that "extradition shall not be refused based on the nationality of the person sought. Depending on the treaty, extradition may also be denied on the basis of a number of procedural considerations. Although the U. Many [states] Under some treaties the applicable law is that of the requested state, 71 in others that of the requesting state; 72 under some treaties extradition is precluded if either state's statute of limitations has run.
When a treaty provides for a time-bar only under the law of the requesting state, or only under the law of the requested state, United States courts have generally held that time-bar of the state not mentioned does not bar extradition. If the treaty contains no reference to the effect of a lapse of time neither state's statute of limitations will be applied.
Left unsaid is the fact that some treaties declare in no uncertain terms that the passage of time is no bar to extradition, 75 and others rest the decision with the discretion of the requested state. In cases governed by U. Perhaps the most common of these deal with the expenses associated with the procedure and representation of the country requesting extradition before the courts of the country of refuge.
The distribution of costs is ordinarily governed by a treaty stipulation, reflected in federal statutory provisions, 79 under which the country seeking extradition accepts responsibility for any translation expenses and the costs of transportation after surrender, and the country of refuge assumes responsibility for all other costs.
Contemporary treaties regularly permit a country to surrender documents and other evidence along with an extradited fugitive. An interesting attribute of these clauses is that they permit transfer of the evidence even if the fugitive becomes unavailable for extradition. This may make some sense in the case of disappearance or flight, but seems a bit curious in the case of death.
A somewhat less common clause permits transportation of a fugitive through the territory of either of the parties to a third country without the necessity of following the treaty's formal extradition procedure. The Constitution provides that the judicial power of the United States extends to certain cases and controversies.
First broached by a district court in the District of Columbia, 86 subsequent courts have rejected the suggestion in large measure under the view that much like the issuance of a search or arrest warrant, the task is compatible with tasks constitutionally assigned to the judiciary. A foreign country usually begins the extradition process with a request submitted to the State Department 88 sometimes including the documentation required by the treaty.
The Assistant United States Attorney assigned to the case obtains a warrant and the fugitive is arrested and brought before the magistrate judge or the district judge. A hearing under 18 U. If the court finds the fugitive to be extraditable, it enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government.
In some cases a fugitive may waive the hearing process. OIA notifies the foreign government and arranges for the transfer of the fugitive to the agents appointed by the requesting country to receive him or her. Although the order following the extradition hearing is not appealable by either the fugitive or the government , the fugitive may petition for a writ of habeas corpus as soon as the order is issued.
The district court's decision on the writ is subject to appeal, and extradition may be stayed if the court so orders. Although the United States takes the view that an explicit treaty provision is unnecessary, 93 extradition treaties sometimes expressly authorize requests for provisional arrest of a fugitive prior to delivery of a formal request for extradition.
The precise menu for an extradition hearing is dictated by the applicable extradition treaty, but a common checklist for a hearing conducted in this country would include determinations that. Instead, it is essentially a preliminary examination to determine whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation The judicial officer who conducts an extradition hearing thus performs an assignment in line with his or her accustomed task of determining if there is probable cause to hold a defendant to answer for the commission of an offense.
The purpose of the hearing is in part to determine whether probable cause exists to believe that the individual committed an offense covered by the extradition treaty. The rules of criminal procedure and evidence that would apply at trial have no application at the hearing. Due process, however, will bar extradition of informants whom the government promised confidentiality and then provided the evidence necessary to establish probable cause for extradition.
Moreover, extradition will ordinarily be certified without "examining the requesting country's criminal justice system or taking into account the possibility that the extraditee will be mistreated if returned. If at the conclusion of the extradition hearing, the court concludes there is some obstacle to extradition and refuses to certify the case, "[t]he requesting government's recourse to an unfavorable disposition is to bring a new complaint before a different judge or magistrate, a process it may reiterate apparently endlessly.
If the court concludes there is no such obstacle to extradition and certifies to the Secretary of State that the case satisfies the legal requirements for extradition, the fugitive has no right of appeal, but may be entitled to limited review under habeas corpus. Limitations on review or application of the rule of noninquiry may be modified by treaty or statute. For example, the U. The argument has produced hollow victories at the appellate court level.
The Fourth Circuit concluded that the rule of noninquiry posed no obstacle, but went on to hold that FARRA itself barred habeas review of a fugitive's torture claim. If the judge or magistrate certifies the fugitive for extradition, the matter then falls to the discretion of the Secretary of State to determine whether as a matter of policy the fugitive should be released or surrendered to the agents of the country that has requested his or her extradition.
The request for extradition comes from the Department of State whether extradition is sought for trial in federal or state court or for execution of a criminal sentence under federal or state law. The Justice Department's Office of International Affairs must approve requests for extradition of fugitives from federal charges or convictions and may be asked to review requests from state prosecutors before they are considered by the State Department.
The first step is to determine whether the fugitive is extraditable. The Justice Department's checklist for determining extraditability begins with an identification of the country in which the fugitive has taken refuge. Common impediments include citizenship, dual criminality, statutes of limitation, and capital punishment issues.
Many treaties permit a country to refuse to extradite its citizens even in the case of dual citizenship. If the applicable treaty lists extraditable offenses, the crime must be on the list. Where the crime was committed matters; some treaties will permit extradition only if the offense was committed within the geographical confines of the United States. The speedy trial features of U. Prosecutors may request provisional arrest of a fugitive without waiting for the final preparation of the documentation required for a formal extradition request, if there is a risk of flight and if the treaty permits it.
The Justice Department encourages judicious use of provisional arrest because of the pressures that may attend it. Although treaty requirements vary, the Justice Department suggests that prosecutors supply formal documentation in the form of an original and four copies of. If the Justice Department approves the application for extradition, the request and documentation are forwarded to the State Department, translated if necessary, and with State Department approval forwarded through diplomatic channels to the country from which extradition is being sought.
The treaty issue most likely to arise after extradition and the fugitive's return to this country is whether the fugitive was surrendered subject to any limitations such as those posed by the doctrine of specialty. The limitation, expressly included in many treaties, is designed to preclude prosecution for different substantive offenses but does not bar prosecution for different or additional counts of the same offense.
The doctrine may be of limited advantage to a given defendant because the circuits are divided over whether a defendant has standing to claim its benefits. The existence of an extradition treaty does not preclude the United States acquiring personal jurisdiction over a fugitive by other means, unless the treaty expressly provides otherwise. Waiver or "simplified" treaty provisions allow a fugitive to consent to extradition without the benefit of an extradition hearing.
The removal of aliens under immigration law has traditionally been considered a practice distinct from extradition. Whether by a process similar to deportation or by simple expulsion, the United States has had some success encouraging other countries to surrender fugitives other than their own nationals without requiring recourse to extradition. Moreover, they frequently require the United States to deposit the alien in a country other than one that seeks his or her extradition.
Although less frequently employed by the United States, "irregular rendition" is a familiar alternative to extradition. Besides receiving persons through irregular rendition, the United States has also rendered persons to other countries over the years, via the Central Intelligence Agency and various law enforcement agencies.
During the George W. Bush Administration, there was controversy over the use of renditions by the United States, particularly with regard to the alleged transfer of suspected terrorists to countries known to employ harsh interrogation techniques that may rise to the level of torture.
Little publicly available information from government sources exists regarding the nature and frequency of U. It appears that most, if not all, cases in which the United States has irregularly rendered persons have involved the transfer of noncitizens seized outside the United States, perhaps because persons within the United States and U. A final alternative when extradition for trial in the United States is not available, is trial within the country of refuge.
The alternative exists primarily when a U. Appendix A. Colombia a. Palau c. In , the Supreme Court of Colombia declared that the law ratifying the U. While extraditions from the United States to Colombia continue to be governed by the treaty, extraditions from Colombia to the United States have often been pursuant to a legal authority other than the agreement.
See United States v. Valencia-Trujillo, F. See In re Extradition of Lin, F. Guam ; P. Appendix B. Taiwan b. Croatia 0. Source : CRS based on 18 U. The United States had an extradition treaty with the former Yugoslavia prior to its breakup 32 Stat. Since then, it has recognized at least some of the countries that were once part of Yugoslavia as successor nations; see, for example , Basic v.
Steck, F. Ashcroft , F. The United States severed official relations with Taiwan in , when it recognized the People's Republic of China as the sole legal government of China. Certain agreements entered prior to the termination of official relations, as well as relations contemplated under multilateral agreements since then, are administered on a nongovernmental basis by the American Institute in Taiwan, which was established pursuant to the Taiwan Relations Act P.
Int'l L. In the parlance of international law nations are identified as "states. A current list of countries with which the United States has an extradition treaty is found at Appendix A. A slightly less up-to-date listing is found at 18 U.
A list of countries with which the United States has no extradition treaty in force is found at Appendix B. Until the early s, the United States received and submitted fewer than 50 extradition requests a year; by the mid- s the number had grown to over requests a year; a decade later U. Even the term extradition did not appear until the late 18 th century. Christopher L. For a more extensive examination of the history of extradition, see Christopher L.
Until fairly recently, nations seem to have been happily rid of those who fled rather than face punishment. The Egyptian-Hittite treaty reflects the fact that extradition existed primarily as an exception to the more favored doctrines of asylum and banishment. Fugitives returned pursuant to the treaty received the benefits of asylum in the form of amnesty:. If one man flee from the land of Egypt, or two, or three, and they come to the great chief of Hatti, the great chief of Hatti shall seize them and shall cause them to be brought to Ramesse-mi-Amun, the great ruler of Egypt.
But as for the man who shall be brought to Ramesse-mi-Amun, the great ruler of Egypt, let not his crime be charged against him, let not his house, his wives or his children be destroyed, let him not be killed, let no injury be done to his eyes, to his ears, to his mouth or to his legs II, ch. A network of bilateral treaties, differing in detail but having considerable similarity in principle and scope, has spelled out these limitations, and in conjunction with state legislation, practice, and judicial decisions has created a body of law with substantial uniformity in major respects.
But the network of treaties has not created a principle of customary law requiring extradition, and it is accepted that states are not required to extradite except as obligated to do so by treaty. From the perspective of one commentator, "The history of extradition can be divided into four periods: 1 ancient times to the seventeenth century—a period revealing an almost exclusive concern for political and religious offenders; 2 the eighteenth century and half of the nineteenth century—a period of treaty-making chiefly concerning military offenders characterizing the condition of Europe during that period; 3 to —a period of collective concern for suppressing common criminality; and 4 post developments which ushered in a greater concern for protecting human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations.
A list of countries with which the United States has bilateral extradition treaties is found at Appendix A. The Convention provides that it "does not abrogate or modify the bilateral or collective treaties, which at the present date are in force between the signatory States. Nevertheless, if any of said treaties lapse, the present Convention will take effect and become applicable immediately among the respective States…. The United States has bilateral extradition treaties with each of the 11 other parties to the Convention, all but three of which were in effect prior to the Convention's entry into force.
Extradition Agreement with the European Union, art. See, e. Alvarez-Machain, U. United States ex rel. Neidecker, U. Yet, if the United States has seized a person in foreign territory, it appears that it may surrender the person to the territory's sovereign for criminal prosecution, even in the absence of an extradition treaty or authorizing statute.
See Munaf v. Geren, U. Under U. In order for a treaty but not an executive agreement to become the "Law of the Land," the Senate must provide its advice and consent to treaty ratification by a two-thirds majority. Executive agreements are legally binding agreements entered by the executive branch that are not submitted to the Senate for its advice and consent. Law , by [author name scrubbed].
The Constitution calls for the Executive to make treaties with the advice and consent of the Senate. Throughout the history of this Republic, every extradition from the United States has been accomplished under the terms of a valid treaty of extradition. In the instant case, it is undisputed that no treaty exists between the United States and the Tribunal. This is so even when, the Government insists, and the Court agrees, the Executive has the full ability and right to negotiate such at a treaty.
The absence of a treaty is a fatal defect in the Government's request that the Extraditee be surrendered. Without a treaty, this Court has no jurisdiction to act, and Congress' attempt to effectuate the Agreement in the absence of a treaty is an unconstitutional exercise of power. In re Surrender of Ntakirutimana, No. L, WL S. August 6, Ntakirutimana v. Reno, F. Neidecker], U. Shine, U. Ames, U. For example, extraditions between the United States and Pakistan continue to be governed by the terms of the U.
Extradition Treaty, entered into force June 24, , 47 Stat. Hoxha v. Levi, F. United States, F. Melendez, 92 F. Section of P. II 1 , entered into force March 9, , T. II 1 , entered into force November 21, , T. Treaty Doc. II 1 , entered into force September 24, , 35 U. Here and throughout where an official citation is unavailable for particular treaty, this report uses the Senate Treaty Document citation along with the date upon which the treaty entered into force according the State Department.
The most recent publicly available compendium of U. V 3 , entered into force September 24, , 35 U. No United States extradition treaty negotiated prior to contains an express military offense exception. Even there the political offense exception was thought more hospitable, except in the case of desertion. See generally David A. Egyptian Extradition Treaty, art. III, entered into force April 22, , 19 Stat. Nezirovic v.
Holt, F. United States Attorney General, F. Roche, F. Wilkes, F. Benov, F. Grant, F. Ruiz, U. Jamaican Extradition Treaty, art. III 2 , entered into force July 7, , S. Costa Rican Extradition Treaty, art. IV 1 - 3 , entered into force August 25, , T. The State Department has noted that the list of crimes subject to such international agreements includes air piracy, aircraft sabotage, crimes of violence committed against foreign dignitaries, hostage taking and narcotics trafficking.
See State Dept. Unless restricted in the Treaty, the list apparently also includes, inter alia , genocide, war crimes, theft of nuclear materials, slavery, torture, violence committed against the safety of maritime navigation or maritime platforms, theft or destruction of national treasures, counterfeiting currency and bribery of foreign officials. Bassiouni, supra footnote 4 , at See Bassiouni, supra footnote 4 , at Appendix I listing multilateral conventions containing provisions on extradition.
Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives. William A. See also Argentine Extradition Treaty, art. IV 1 , entered into force November 21, , T. On the other hand, the capital punishment mutuality provision can redound to U.
Se e, e. Some capital punishment clauses do not apply in murder cases. See also United States v. Saccoccia, 58 F. Examples include the Italian Extradition Treaty, art. In re Extradition of Loharoia, F. See Wright v. Henkel, U.
Raiche, F. On the other hand, there is authority suggesting that the principle does not apply unless it is expressly stated in the treaty. See Factor [v. Laubenheimer], U. John T. Soma, Thomas F. Muther, Jr. Collins v. Loisel, U. See also Zhenli Ye Gon v. Torres, F.
DiLeonardi, F. United States, 93 F. Balzan v. The Racketeer Influenced and Corrupt Organization RICO provisions prohibit acquisition or operation of an interstate commercial enterprise through the patterned commission of various other "predicate" offenses, 18 U.
Along with attempt, conspiracy and federal crimes with distinctive jurisdictional elements, they pose difficulties when they approximate but do not exactly matching the elements for extraditable offenses. They present a distinct problem, however, when they are based entirely on predicate offenses that are not themselves extraditable offenses.
II of earlier treaty ; Lithuanian Extradition Treaty, art. But see Extradition Treaty with Luxembourg, art. Historically, offenses of a fiscal character were not extraditable. Even among countries with a fairly expansive view of the extraterritorial jurisdiction, there may be substantial differences between the perceptions of common law countries and those of civil law countries.
Charles L. II 3 c , entered into force March 25, , T. II 3 b , entered into force November 21, , T. If the laws of the Requested State do not [so] provide…, the executive authority of the Requested State, at its discretion, may grant extradition…. However, if the offense was committed outside the territory of the Requesting State, extradition shall be granted if the law of the Requested State provides for punishment of an offense committed outside of its territory in similar circumstances" ; Italian Extradition Treaty, art.
III, entered into force September 24, , 35 U. When the offense for which extradition has been requested has been committed outside the territory of the requesting Party, extradition may be granted if the laws of the requested Party provide for the punishment of such an offense committed in similar circumstances" ; French Extradition Treaty, art. The Supreme Court in Valentine v.
Some 50 years later, Congress sought to reverse the result of this ruling with the enactment of 18 U. There have been differing court rulings as to the interplay between 18 U. In Gouveia v. Vokes, F. On the other hand, in Hilario v. See In re Surrender of Ntakirutimana, No. August 6, favorably discussing Hilario ; Ravelo Monegro v. Rosa, No. See also Sacirbey v.
Guccione, F. Hood, F. Extradition Treaty with the United Kingdom, art. IV, entered into force September 24, , 35 U. See Bolivian Extradition Treaty, art. III 1 , entered into force November 21, , T. Extradition Treaty with Malta, art. Bolivian Extradition Treaty, art. III 1 a , entered into force November 21, , T. III 3 , entered into force November 21, , T. VII, entered into force July 7, , S. Heath v. Alabama, U. See also Bassiouni, supra footnote 4 , at "As the jurisprudence of the United States presently stands, the Double Jeopardy Clause of the Fifth Amendment of the Constitution does not prevent extradition to another state unless the relevant treaty provides that double jeopardy shall apply.
Italian Extradition Treaty, art. VI, entered into force September 24, , 35 U. Extradition shall not be granted when the person sought has been convicted or acquitted in the Requested State for the offense for which extradition is requested. The Requested State may refuse extradition when the person sought has been convicted or acquitted in a third state in respect of the conduct for which extradition is requested. Extradition shall not be precluded by the fact that the competent authorities of the Requested State: a have decided not to prosecute the person sought for the acts for which extradition is requested; b have decided to discontinue any criminal proceedings which have been instituted against the person sought for those acts; or c are still investigating the person sought for the same acts for which extradition is sought.
V 2 , entered into force November 21, , T. Extradition shall not be precluded by the fact that the authorities of the Requested State have decided to refrain from prosecuting the person sought for the acts for which extradition is requested or to discontinue any criminal proceedings which have been initiated against the person sought for those acts. See also Extradition Treaty with Sri Lanka, art. Some include language to avoid confusion over whether an American dismissal with prejudice is the same as an acquittal, Hungarian Extradition Treaty, art.
In the United States, the applicable statute of limitations is the one in place when the extradition request is made. Hecht, 16 F. VII, entered into force September 24, , 35 U. Venables, F. Patterson v. Wagner, F. Lovasco, U. MacDonald, U. Gregory, F. Farmer, F.
United States, U. Wingo, U. White Horse, F. Cope, F. All witness fees and costs of every nature in cases of international extradition, including the fees of the magistrate, shall be certified by the judge or magistrate before whom the hearing shall take place to the Secretary of State of the United States, and the same shall be paid out of appropriations to defray the expenses of the judiciary or the Department of Justice as the case may be.
The Attorney General shall certify to the Secretary of State the amounts to be paid to the United States on account of said fees and costs in extradition cases by the foreign government requesting the extradition, and the Secretary of State shall cause said amounts to be collected and transmitted to the Attorney General for deposit in the Treasury of the United States".
The Requesting State shall bear the expenses related to the translation of documents and transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings. Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty" ; Hungarian Extradition Treaty, art.
XXI, entered into force September 24, , 35 U. But see Bolivian Extradition Treaty, art. After this time expires, it cannot be executed unless it is renewed by the officer who issued it. If, for any reason, the officer who issued a warrant to bring the suspect is absent, the warrant shall be renewed by the prosecutor heading the public prosecution service to which the prosecutor who issued it is appointed.
In that case, the warrant shall remain valid for seven 7 days not renewable and persons thereby arrested are remanded in a police station cell. The same warrant may also be issued against any person who has escaped if the offence he or she is alleged to have committed is punishable by an imprisonment of at least one year.
Where that person is arrested, provisions of the first paragraph of this article shall be applicable. An international warrant of arrest is an order signed by the Prosecutor General of the Republic or the Military Prosecutor General against a person staying in a foreign country while he or she is alleged to have committed a crime and other offences related to the property. That warrant shall remain valid for six 6 months renewable. A warrant to bring a suspect forcibly and that of arrest are executed by any law enforcement agents and must be shown to the people under search and copies thereof given to them.
In case of urgency they can be sent by using any available means. The original warrant of arrest or of forcibly to bring a person or its copy thereof is sent to the person supposed to execute it without delay. A public prosecutor can summon by using written notice, summons to appear or warrant bringing by force, any person he or she thinks has some important information to give.
The summoned person is given a copy of the summoning document. Witnesses are summoned through the administrative organs, by using court bailiffs or security organs although they can as well appear voluntarily. Any person summoned in accordance with the law is obliged to appear.
Persons who, by the nature of their trade or profession, are custodians of secrets are exempted from testifying as regards those secrets. A public prosecutor can issue a warrant to bring by force any witness who has defaulted to appear. Any witness who is legally summoned and falls to appear without any lawful reason, or who refuses to discharge the obligation of testifying can be handed over to court without any further formalities.
A witness who defaults to appear after being summoned for the second time or who, after being called by warrant to bring him or her by force advances legitimate reasons is absolved from punishment. After submission of their particulars and swearing to tell the truth, witnesses are interviewed, each separately in the absence of the accused. Statements of their testimonies are recorded in writing. A witness who falls to appear to testify without advancing any justifiable excuse after being summoned in accordance with the law or refuses to take an oath or to testify after being ordered to do so can be sentenced to a maximum punishment of one month and a fine which does not exceed fifty thousand francs If need be, public force can order his or her arrest following a warrant to bring him or her by force issued by a public prosecutor charged with investigation of the case.
A witness who is punished due to disobeying a summon and who is called for a second time or is sent a warrant to appear by force and later shows legitimate reasons for the default, he or she may be exempted from the intended penalty. Persons against whom the prosecution has evidence to suspect that they were involved in the commission of an offence cannot be heard as witnesses.
Children who have attained the age of 12 can testify as adults. Children under the age of 12 can also be heard but a court's decision cannot be solely based on their testimony. In this respect, the evidence of a minor should be supported by other corroborative evidence. Every page of a statement is signed by the prosecutor and the person interviewed. The latter should be asked to read the statement to see whether it conforms to what he or she said before signing it.
If he or she does not know how to read, the statement is read to him or her. If he or she refuses to sign or unable to do so, it is indicated in the statement. Statements should be recorded with enough spacing between line and words. Words erased or crossed should be approved by both the prosecutor and the witness. Failure to do so may render the words worthless. The same applies to statements that do not bear the required signatures.
If a witness is unable to appear before a public prosecutor, the latter shall go to interview the person where he or she is or delegate someone else to do it on his or her behalf. When the accused appears, a public prosecutor starts by verifying his or her particulars, informing him or her each of the charges against him or her and the provisions of law.
These are recorded into the statement. When the accused has already asked to be defended by a counsel and the latter has been duly informed, a public prosecutor proceeds with the interrogation. In all other circumstances, a public prosecutor informs the accused of the right to seek a defence counsel. The counsel is allowed to read the case file as well as to communicate with the accused. The public prosecutor then informs the accused that he or she can be interrogated immediately if he or she is willing to do so.
Such information is recorded in a statement. However, if the accused wishes to make any declaration, the public prosecutor immediately interrogates him or her. At the close of the interview, the accused gives his or her residential address. The accused is also told to inform the public prosecutor who investigates the case of any changes in the given address, that any service made at the last mentioned address will be regarded as having been duly served on him or her.
That information as well as the address is recorded in the statement. A public prosecutor can immediately proceed to carry out the interview or confront witnesses if a witness is likely to die or if some evidence is likely to disappear. A statement made to the effect indicates reasons for the urgency. Where it is necessary, the public prosecutor who is charged with the investigation of a case can carry out confrontation between accused persons, between witnesses or between accused persons and witnesses either on his or her own initiative or at the request of any interested party.
A public prosecutor charged with the investigation of a case can proceed to search any places where any evidence that can help to demonstrate the truth can be obtained. If the search involves residential premises, it cannot be carried out before 6.
Public prosecutors can delegate such activities to judicial police officers. In all cases search is conducted in the presence of administrative authorities in the area. Visits to the scenes of crimes and search are conducted in the presence of the suspect or the owner of the house. However, in their absence or they have refused the search, it doesn't hinder search in case of commission of a felony or misdemeanour and in case evidence may be interfered or disappear.
A public prosecutor or judicial police officers who have been entrusted with the duty to search and visit suspected scenes of crimes should prove their authority and show warrants which have been signed by competent people, authorising them to carry out such activities. A copy of the warrant is given to the suspect. A search warrant is a document which is issued by the Prosecution service on the authorization of the Prosecutor General of the Republic, the Military Prosecutor General for offences committed by soldiers or their accomplices, or the Public prosecutor who heads the prosecution service at a higher instance level or a lower instance level.
Such a warrant authorises the person who is supposed to execute it the power to visit any premises with view to discover evidence or property that can assist in establishing the reality of the offence and the suspects to whom it is attributed. When the search is in respect of documents, a public prosecutor charged with the preparation of the case or any other person to which the duty has been delegated is the only person authorised to know contents of the documents before their seizure.
All property and documents under custody of the prosecution are immediately taken stock of and shall bear a sign of seizure. Seizure is made only in respect of property and documents which can be used to establish the truth. After visiting scenes of crime, searching and seizing the property, the concerned officer makes a statement and issues a copy to the relevant parties.
Sub-section 6. Interception of correspondence transmitted through posts and telecommunication. When all other procedures of obtaining evidence to establish truth have failed, the prosecutor in charge of investigations, may, after obtaining a written authorisation by the Prosecutor General of the Republic, listen, acknowledge and intercept record communications, conversations, telegrams, postal cards, telecommunications and other ways of communications.
An order to listen to oral conversations and intercept written documents should be in written form and cannot be appealed. The order should contain facts relating to malls or lines to be intercepted as well as the offence that necessitate taking such measures.
The order remains in force for a period which does not exceed three 3 months, subject to renewal for such period of time only once. All correspondences and messages meant for the Head of State cannot be intercepted or listened to. A public prosecutor charged with the investigation of a case can request a fellow public prosecutor or a Judicial Police Officer in another jurisdiction to do any necessary functions which he or she thinks can help to demonstrate the truth on his or her behalf.
Such communication and cooperation should indicate acts relating only to the offence under investigation. However, if deemed necessary, the Prosecutor General of the Republic can give Public Prosecutors at a higher instance level or a lower instance level special authorisation to go to other areas outside the ordinary territorial jurisdiction for the purposes of conducting criminal investigation activities. Public prosecutors or judicial police officers delegated as such exercise the functions of an ordinary public prosecutor in relation to the assigned matters only.
Each person who has been legally required by a judicial police officer, a public prosecutor, a Judge or a Magistrate to assist as an interpreter, a translator, a physician or an expert witness is under an obligation to do so.
Before starting to discharge their duties, interpreters, translators, physicians and expert witnesses swear to act faithfully and compile their reports with professional consciousness and honour. The President of the Supreme Court, the President of the High Court of the Republic, the President of Higher Instance Courts as well as those of Lower Instance Courts can, after inquiry and interview, appoint some members of staff in their jurisdictions to act as interpreters, translators or expert after they have taken oath, so that they can constantly and permanently discharge the duties in courts within their jurisdictions.
Such persons are appointed after they have taken oath before the appointing Judge or magistrate to discharge the duties faithfully and consciously. Refusal to comply with an order of the court to discharge the duties or to take oath when requested to do so is punishable with one month's imprisonment and a fine which does not exceed 50, francs or one of the punishments.
Investigation, prosecution and punishment of such offences are regulated by ordinary rules relating to Jurisdiction and procedure. Expert witnesses can receive evidency from people other than the accused so that it can assist them in discharging their duties. When several experts who have been appointed give conflicting opinions or some of them have reservations in arriving at a common conclusion, each of them indicates his or her opinion or gives reason for the reservations.
With exception of when a person is caught red handed, a public prosecutor charged with the preparation of a case file cannot search on the body of an accused person by stripping him or her naked without prior authorisation of a public prosecutor in charge of the prosecution service he or she is appointed to. Searching on a naked body is only conducted by a physician. In any case, any body who is the subject of search on a naked body can choose a physician, a relative, a spouse or choose any other adult person of the same sex to be present at the time of the search.
A suspect is entitled to be free during the time of investigation. However, on the interest of the preparation of the case file, or on security of accused or national security, an accused can be subjected to certain conditions, or in certain circumstances, to be remanded in custody in accordance with the procedure and conditions provided for in the following articles. Any unlawful imprisonment contrary to what is provided for from article 90 to contravenes the law and can entail punishment to responsible officers.
When a person is detained unlawfully, any judge who is appointed to a court which is located near the place where the person is detained and whose competence covers the offences the detained person is alleged to have committed can, upon request by any interested party, order the officer who detained that person to appear and produce the detainee in order to indicate reason and manner under which he or she is detained. A judge or magistrate then makes an order arresting or releasing the person on bail.
The judge or magistrate may immediately cause to be punished any officer who unlawfully detained the person with the punishments provided for under the Penal Code. Bail conditions can be ordered when the offence a person is charged of is a misdemeanour or a felony. A suspect can be subjected to bail conditions by the public prosecutor charged with the investigation of a case at any time during investigation. During that time, an accused can be subjected to one or several conditions provided for under article of this law.
A public prosecutor can, at any time, impose on the accused new bail conditions, reduce or modify part of them or exempt him or her from some of the conditions. When an accused voluntarily breaches some of the conditions imposed upon him or her, a public prosecutor can issue a warrant of arrest and apply for remand of an accused person in custody during the time of investigation.
A suspect shall not be subjected to pre trial detention unless there are concrete grounds to prosecute him or her and the offence he or she is accused to have committed is punishable with at least two 2 years' imprisonment. In this law, strong reasons to suspect that a person has committed an offence are the totality of evidence which can lead to the suspicion that a person might have committed an offence.
When all conditions that warrant pre-trial detention are established, a public prosecutor can, after interrogating the accused pleading on his or her own or in the presence of his or her advocate, place him or her under provisional arrest and take him or her to the nearest jurisdiction with the exception of the High Court of the Republic and the Supreme Court.
The accused should appear before the magistrate or Judge in a period of not more than seventy-two 72 hours from the time the warrant of the provisional arrest was issued. In any case, an accused is detained pending trial pursuant to a court's order which clarifies, grounds based on facts and law, and should particularly specify concrete grounds for suspecting that he or she committed the offence.
An order for preventive detention is one which is signed by a Magistrate or Judge and a court registrar, if after the hearing he or she is of the view that the accused who is detained should remain in custody because of the evidence against him or her. A preventive detention is authorised by the nearest court to the place where the suspect is arrested, with the exception of the High Court of the Republic and the Supreme Court.
The trial and judgement shall be open. A judge or magistrate can rule out that a trial be conducted in camera upon request by the prosecutor or the accused". A decision ordering for preventive detention should be delivered within 24 hours after the time the court is seized upon request by the public prosecution and after hearing the defence of the accused upon his will, his or her advocate and the Prosecutor. The defence and grounds advanced by the accused person are recorded in writing.
The Magistrate or Judge immediately informs the accused of the decision in writing or orally and then reduced into writing. An order authorising for preventive detention remains in force for 30 days including the day on which it was delivered. After the expiry of that time, it can be renewed for one month and shall continue in that manner. However, after expiration of 30 days, the time cannot be extended for contraventions. For misdemeanours, the time cannot be extended after the accused has been detained for 6 months and after one year for felonies.
Orders extending the period of detention are made in accordance with the form and periods provided for under article 99 of this law. An order for pretrial detention or for extending the time of detention shall specify the grounds that justify it. Preventive detention can also be ordered if an accused person has voluntarily breached some of the conditions of bail imposed on him or her. In all offences, an accused person or his or her counsel can at any time apply for bail to the public prosecutor charged with the preparation of the case or to a Judge or Magistrate depending on the stage of investigation.
A Judge or Magistrate delivers a ruling on the application and its legal basis within five 5 days. When the release is guaranteed, the accused may be ordered to respect some conditions. When a Magistrate or Judge does not find sufficient evidence for prosecution, an accused person shall be immediately released. When a Judge or Magistrate finds that there is enough evidence to warrant detention of the accused, an order for preventive detention can be made; or he may not be detained but ordered to respect certain conditions.
Some of the conditions, which can be imposed on the accused, include the following:. In order to provide precisely how the conditions provided for in the proceeding paragraph are respected, an order releasing an accused on bail may also indicate any of the conditions to be satisfied among those enumerated. Upon request by the public prosecutor charged with the preparation of a case file, a Judge or Magistrate can at any time, modify the conditions imposed in order to match with changing circumstances.
He or she can as well order redetention of the accused, if deemed necessary, because of the new and serious circumstances. A Judge or Magistrate who, orders for detention pending trial, may release the accused on bail by requiring him or her to execute a bond with or without any one or several of the conditions provided for in the preceding article. The bond guarantees the appearance of the accused whenever required in court as well as payment of damages arising from the offence, property to be restituted and fines.
Bail may be in form of bond or of a person standing as surety. Any one who admits to stand as surety shall be a person of integrity and have the means to pay. Where an accused person escapes justice, the surety shall pay compensation for the damages caused by the offence. A Judge or Magistrate determines the amount of bond to be paid by considering the value of the destroyed property, fine to be paid as well as the means of the accused person.
No bond shall be admitted in respect of felonies. The prosecution and the accused person can appeal against rulings ordering preventive detention or release on bail. An order of the jurisdiction of appeal is not appealable. An appeal does not preclude trial of the case on merits. The time to file an appeal is five 5 days. The time starts to run from the day of the order was taken in respect of the public prosecution or from the date of service of the order in respect of an accused person.
A notice of appeal is filed in a registry of the court that gave the order, or in a registry of a court that is supposed to hear the appeal. A court clerk who receives a notice of appeal takes notes of statements or grounds of appeal advanced by the accused in support of his or her appeal, and on which he attaches all other documents handed over by the accused for submission to a court that will hear the appeal. He or she gives to the accused a document acknowledging receipt.
The person who receives the notice of appeal and the accompanying documents immediately forwards them to a clerk of the court that is supposed to hear the appeal. During the period of appeals and in times the appellate court has not yet tried the case, the accused shall continue to be in the same state as the court ordered, at all times the court order is in execution.
Appeals shall be examined within five 5 days. The decision shall be taken in five 5 days which are counted from the date the prosecution handed in its submissions. When the appellant does not reside within the area where the court is situated or is not represented by an agent duly authorised in writing, the court can pass judgment basing on written evidence only. If an order of the lower court dismisses detention of the accused or rejects an extension of the time of detention and is dismissed by the appellate court, the time to authorise detention or its extension is determined by appellate court but shall not exceed one month.
That period starts to run from the day on which the order of the appellate court comes into force. When an accused person has successfully appealed against a ruling ordering his or her detention or extending the time of detention, he or she can not be subjected to another warrant of arrest based on the same charges, unless new and serious grounds that warrant his or her preventive detention are discovered. Where the public prosecution decides that there are no grounds for prosecuting the accused person, it should request for the release of the accused.
When an accused person is in detention before trial or has been released on bail on the day on which the court was seized, he or she will remain in that condition until the time of judgment. However, for those matters provided for in paragraph 2 of article of this law, the period of detention shall not exceed that provided for by that paragraph. A person who is in detention can apply to the trial court to release him or her during the period of trial or to release him or her on bail.
A court is under an obligation to give a ruling on the preliminary claim or on any matters it can discover within a period of at least fifteen 15 days, after the ruling on the preliminary claim. A judgment is given in the manner and time provided for in article 99 of this law.
When a court releases an accused person on bail, the provisions of article of this law apply. Article: [Public prosecution can only appeal against a decision pursuant to] article , when it seeks to release a person who was detained before trial. An accused can only appeal, if an order has confirmed his or her detention and denied him or her bail. During the period of appeal and during period for trial, the accused remains in the same state as the former judge ordered.
An appeal is lodged in the manner provided for in articles and of this law. An appeal is lodged in a court that has Jurisdiction to try the substantive case. The court decides the case in accordance with the rules laid down under article of this law. Public prosecution can apply for redetention of an accused who has breached some of the conditions imposed by the court that released him or her on bail.
An accused who pleads not guilty can appeal to the court within five 5 days of his or her redetention. The court is also competent to examine an appeal brought by an accused against an order of a public prosecutor and request for his or her redetention for breaching the conditions of bail imposed during the time of investigation. A ruling on such an appeal shall not be appeallable. When the public prosecution decides to prosecute a person, it transmits a complete criminal case file to a court of competent Jurisdiction.
In that regard, it is said that the court is seized. The court may also examine a claim regardless of filing it during the commission of an offence at the time of trial or if the complainant seizes a court without prosecution. In the course of proceeding, the court may order the prosecutor to prosecute and bring before the court those persons it considers as co-authors and accomplices of the accused as long as it has sufficient evidence to prove that they committed the offence.
Where the court finds out that the prosecution is not willing to prosecute such persons it may summon them to appear before the court and be tried. A summon to appear in court is issued by a court clerk, upon request by public prosecution or a civil party. A summon should at least mention the accused, his or her names, domicile or residence, charges against him or her, a court before which to appear, place, day and hour of appearance.
A summon is served by a bailiff or court clerk and its copy thereof given to an accused, a person liable to pay damages, or any other person summoned. A summon is served on the person or on the residence of the summoned person. If the accused has no known domicile in Rwanda but has a known residence, summon shall be served on the residence. In case of absence of the summoned party, summon is served to his or her spouse, relative or a relative to the spouse, his or her employer or employee at his or her residence or domicile.
In case of failure to get one of them, summon is served to the coordinator of the sector of his or her residence or domicile. A summon can as well be notified by sending its copy through postal registered mall or through a special messenger who is required to return a document from the addressee acknowledging receipt, indicating date and signature of the person summoned or a person mentioned in the preceding article, indicating his or her relations with the person summoned.
When the accused has neither a known domicile nor a residential address in Rwanda but has a known residential address abroad, a copy of the summon is posted at a specified location at the court which is supposed to try the case, and to another place determined by the court, another copy is immediately dispatched to the person summoned through the post office or through the Minister responsible for Foreign Affairs who issues a document acknowledging receipt. When the person summoned does not have a known domicile or residential address in Rwanda or abroad, a copy of the summon is posted to a determined place at the court to try the case and extracts thereof brought to public attention through means which the court deems appropriate.
The time lapse between summon and appearance for an accused or the one who is liable for the damages caused by the offence is eight 8 days regardless of the day on which he or she received the summon and the day of appearance. Persons who do not possess known domicile or residential address in Rwanda are summoned in a period of two 2 months.
When a summon is delivered to person who neither resides nor has domicile in Rwanda but he or she served the summon in the Country of residence, it takes the usual time, but the court may extend it if deemed necessary. For trials that require urgency, the President of a court can, by a ruling using an order to explain reasons and which should be served together with the summons to the accused or to the person liable for civil damages, if need be, shorten the time of eight 8 days provided for in the first paragraph of article , if the offence charged is a contravention or if an accused is caught red-handed, has confessed or appears to court immediately for summary trial.
When a summon has been sent through the post office or a messenger, the time of someone starts to run from the time when the post or messenger delivers it to the person summoned. When summon has been posted to a determined place at the court, the time for summon starts to run on the day of the posting. A victim of an offence who wishes to sue for damages can either file an action in a criminal or civil court.
However, when he or she has decided to refer the claim for civil damages in one court, he or she cannot change and lodge the same claim in a different court. A person whose interests have been injured by a criminal offence can lodge a claim for compensation in a competent court claiming damages by way of notice brought at the same time as the criminal charges or at any moment, from the time when the case is filed to the termination of hearing by stating the claim in the court registry or in court at the time of hearing and given a certificate to the effect.
When the claim is made to the court registry, it is notified to concerned parties. A victim who has filed a civil action direct to a criminal court can withdraw the claim at any moment from the time of filing to the closure of hearing by giving notice to the effect in court or in the court's registry. In that case, a court clerk informs the withdrawal to all concerned parties.
Filing a claim for damages by way of private prosecution is a claim a victim of an offence takes to a criminal court so that the accused is punished and be ordered to pay damages equivalent to what was destroyed. The court seized shall inform the Prosecution. A person who brings an action by way of private prosecution should indicate in the claim, in a precise manner the actions against the accused so that he or she can prepare defence on time and with full knowledge of the facts of his or her case.
If there are aggravating circumstances, they should also appear in the claim so that the accused can be able to defend him or her. Seizing a court by way of private prosecution takes place when a criminal file was put in safe keep or when a period of six 6 months has elapsed without any action being taken by prosecution. Such a period of six 6 months starts to be counted from the time when a complaint was received by the public prosecution service or from the time when a criminal case file was received by the public prosecution service from national judicial police department.
A victim of an offence who seized a court without basing his or her claim on the prosecution, may, at any time withdraw his or her claim from the time he or she files it to the time of termination of the case by giving notice in the trial or in the registry of the court seized. In that later time, the court clerk shall inform the concerned parties. However, withdrawing a civil claim, in case a victim of an offence seized a court by way of private prosecution does not hinder the trial of a criminal case.
A victim of the offence can file a civil action against the party liable to pay damages or any other person he or she suspects to have committed an offence without having to base the claim on the prosecution's case. An injured party, without joining his or her action for recovery of damages to criminal proceedings, can sue directly in a civil court seeking to recover damages for injury arising from the offence.
When a civil action which is based on a criminal offence is brought separately from criminal proceedings, the civil action is suspended as long as judgment in the criminal proceedings has not been delivered, if the criminal case was brought before or after the civil proceedings have commenced. However, when there is no complaint of a criminal offence lodged in the public prosecution service or in court, the trial of a civil claim proceeds in a civil court by following rules of civil procedure.
In felonies and misdemeanours, an accused should appear in person. However, when there are strong reasons prohibiting a person from appearing, he or she can be represented by a duly authorised agent. In contraventions, an accused can be represented by a counsel except when a Judge or Magistrate requires his or her personal appearance.
A party liable to pay damages and the civil party can appear in person or through advocates. However, at any stage of the proceedings, a court can order personal appearance of a party to a case. An order for the personal presence of a party as well as the day of appearance is notified to the party by a court clerk. In case the court is seized, before the date of hearing, its President, upon request by one of the parties or suo motto , if the complainant has no capacity to sue, has no counsel or any other legal counsel to represent him or her, can examine or order for the examination of the cost of destroyed property, record or order the recording of statements, do or order for the any other matter which need to be completed to be done.
When a case is complete for hearing, parties are summoned to court for trial. A summon sets out the offence charged, the law punishing the offence, court seized, place, day and hour of the trial. The trial of a case shall be conducted by the presiding Judge or Magistrate in the following order:. Hearings are conducted in public. However, a court can order for hearing to be conducted in camera when it finds that public hearing can be detrimental to public order and good morals.
When hearing in camera is decided, rulings relating to interlocutory and preliminary issues are delivered in camera as well. Judgements on the merits of cases are always delivered in public. A court clerk takes note of the proceedings, particulars of parties and witnesses as well as their principal depositions. The presiding Judge or Magistrate is responsible for conducting hearing and keeping order in court.
When during trial, any of the persons present disrupts order by whatever means, the presiding Judge or Magistrate can order for his or her expulsion from the court room. When, in the course of carrying out the above measure, the person resists the expulsion order or causes commotion, he or she is immediately arrested and detained, tried and sentenced to imprisonment ranging from one month to one year, without prejudice to other punishments, which the penal code prescribes for those persons who insult or commit acts of outrage against judges or magistrates in the course of executing their duties.
When the court's order is disrupted by the accused himself or herself, the provisions of the preceding article shall apply. At the time of delivery, judgments should be written and read within a period of thirty 30 days following termination of hearing. The detailed statement indicating the opinions of the judge who did not agree with the judgement is attached to the judgement.
It is not read in public. A judgement should also indicate a bill of costs, prepared by a court clerk and approved by the President of the court and mention the time within which to file an appeal. A judgement is signed by the trial judge s or magistrate s as well as the court clerk present when it is delivered. Where the accused is acquitted, court fees are borne by the public treasury.
However, when a civil party who filed a claim direct by way of private prosecution loses a case, he or she is condemned to pay all the costs incurred in the case. In case a party who based his or her civil claim on the prosecution loses, he or she is ordered to bear half of the cost incurred.
A civil party who withdraws a claim, whether it was brought basing on the public prosecution case or by direct private prosecution can not be ordered to pay costs incurred after the withdrawal; however, without prejudice to payment of damages to an accused or a party liable to pay compensation if need be.
If at the time of Judgement, an accused who was released on bail after having executed a bond is not found guilty, the court shall order for restitution of the bond except the extra-ordinary fees which can be deducted for default of requirements he or she may have made in the course of the proceedings. When an accused is convicted and the court finds that there are procedures he or she defaulted without any justifiable cause, the court states it in the judgement and confirms that all or part of the bond paid shall be forfeited to the public treasury.
Any doubt should be resolved in favour of the accused. This means that when proceedings have been carried out and completed as much as possible and no evidence has been found to remove the doubt in the minds of the Judge s or Magistrate s on whether the accused really committed the offence, he or she should be acquitted.
When a court rules that it has no jurisdiction to try an accused, it should immediately send him or her to a competent court for trial. When a person who has been duly summoned does not appear, he or she is tried in absentia. When the judgement is passed in absentia , it is notified to the accused by a court bailiff in an instrument containing essential elements of the case.
When an accused committed a felony or a misdemeanour, and escapes the country or justice, the public prosecution compiles a criminal case file and transmits it to a competent court even if the accused may have not been interrogated and he or she can be tried in absentia. A judgement passed against a person mentioned in the first paragraph of this article is not appealable. Judgments passed in absentia can be duly notified by a court bailiff or clerk, using an instrument comprising of the date and place of judgement, court which passed the judgement, grounds and legal provisions on which it is based as well as its orders.
A person who has been convicted in absentia can apply for opposition within ten 10 days after it is notified to him or her. If the case was not notified to him or her personally, he or she can apply for opposition within ten 10 days that run from the day when the concerned party received the notice personally.
When there is no proof that he or she received the notice he or she can be allowed to apply for opposition till the time limit set for enforcement of the sentence and until when the judgement is executed against the defendant in civil claims. An application for opposition of judgment passed in absentia can be made by writing at the foot of the record of service or by making the declaration in the registry of the court which passed the judgment or by the applicant writing to the clerk of that court to the effect.
The date on which a court clerk receives the letter determines the date of the application for opposition. On the same day on which a court clerk receives the letter, he or she endorses on it the reception date and informs the applicant accordingly. A court clerk immediately informs the public prosecution of the pending application for opposition. An application for opposition can only be accepted if the party who defaulted to appear shows serious reasons, which fully justify the failure to do so.
The seized court has the discretion to appreciate the alleged grounds for failure to appear. When a person who has applied for opposition of a judgement passed in his or her absence falls once again to appear, the application is dismissed. He or she can neither renew the application nor seek to oppose the second judgment on second time.
A person who has applied for opposition is bound to appear in person, if he or she was ordered to do so in the first judgement in absentia or if the judgment passed in absentia had ordered his or her personal presence as a condition for admissibility of the application. The execution of a judgement passed in absentia is stayed until the time provided for under article has expired and if an application for opposition has been made; its execution is stayed until the case has been retried.
Likewise, proceedings in an appellate court against conviction and sentence of the accused are stayed when they have been filed by a public prosecution, a person civilly liable and the one claiming damages. When the accused concedes to an application for opposition, the judgement passed in absentia becomes worthless and the court retries the case on merits. In all cases, all the costs incurred in opposition, including the expenses for buying a judgement copy and notifying the judgment passed in absentia are borne by the person applying for opposition when he or she is to blame for the default of appearance.
An appeal should be lodged within a period not exceeding thirty 30 days following the day on which the judgment was delivered in respect of party who was present or represented when it was delivered. The time limit also applies to a party who was duly notified of the date on which a judgment would be delivered but defaults to appear or to send a representative. An appeal should be preferred within thirty 30 days following the day on which judgment was notified to a party who was not present when it was delivered as well as a party who attended hearing but was not informed of the day on which it would be delivered.
A person can appeal by writing so on the notification instrument or by stating so in the registry of the court which delivered the judgment or in the registry of the court which is supposed to hear the appeal or by writing a letter to the effect to a court clerk of any of the mentioned courts. The date on which the court clerk receives the letter in the latter case determines the date on which an appeal is made. On the same date on which he or she receives the letter of appeal, a court clerk writes on it the date of reception and informs the appellant.
A court registry officer or bailiff is responsible for serving process of appeals. However, when an appellant is in detention, he or she can lodge his or her appeal from the prison by writing a letter to a court clerk through the in-charge of the prison. The latter signs on the letter and indicates the date of reception which is taken as the date of appeal. He or she immediately transmits appeal statement to the appellate court without delay.
A court clerk of the trial court immediately transmits to the court clerk of the appellate court, record of hearing and copy of judgment against which an appeal has been lodged. The execution of judgment is suspended until when the time fixed for an appeal has expired or when an appeal has already been preferred, until the time when the appeal is determined.
An appeal against an order for the award of damages does not stay the execution of sentence s imposed on the accused. A person, who was detained is acquitted or sentenced to pay a fine only, he or she is immediately released except when he or she is held in connection with any other offence of which he or she was informed and charged with in accordance with this law. When an appeal has been lodged, the defendant shall immediately be released upon acquittal or upon such a sentence is suspended or sentenced to a fine.
The same applies to the accused who has been in pre-trial detention sentenced to a term of which is less than or equal to the time he or she spent in pre-trial detention. However, where defendant has been charged with the crime of genocide or crimes against humanity, violence against minors, crimes relating to national security or to the security of other states, treason or espionage and where there is concrete evidence that the release of the accused may constitute a threat to public order in general, the prosecution may, after lodging an appeal, apply to the appellate court to order for the accused to again be placed in provisional detention pending determination of the appeal.
The prosecution should make the application within a period not exceeding 48 hours from the time when the judgment is delivered. Such an application is decided upon by the appellate court within a time that should not exceed 48 hours from the day and hour it was received.
When the accused who is out on bail during the time of trial is subsequently convicted and sentenced to a term of imprisonment, he or she remains free during the time of hearing if he or she has appealed against the judgment. However, the accused can be arrested and detained irrespective of the term of imprisonment imposed, if serious and special reasons are presented to the appellate court.
The accused who is detained or who has been imprisoned following a court judgment remains in custody even if he or she has lodged an appeal. However, he or she can petition to an appellate court to release him or her on bail. A person who has been convicted while in custody or who has been arrested immediately after conviction is transferred to the place where a court which will hear his or her appeal is situated, when he or she has requested to appear personally before the court or the court has ordered his or her personal presence.
When the accused was released on bail, the prosecution requests the appellate court to determine new bail conditions to be satisfied by the accused person immediately after his or her arrival. The accused can appeal against the whole judgment that orders his or her imprisonment or payment of damages.
He or she can also appeal against any of the offences charged or one of the sentences imposed. However, when he or she is the only appellant, the appellate court cannot enhance the sentence imposed on first instance. The civil party claiming damages can only appeal for damages on decided cases concerning the civil claim. The civilly liable person can appeal against a judgment ordering him or her to pay damages.
His or her appeal solely concerns civil claims. When an appellate court changes a decision appealed against, it tries the case on merits, unless it finds that the case has not been properly filed in accordance with the law or the trial court had no jurisdiction to hear it. If on appeal by the prosecution only the judgement appealed against is not altered, court fees are borne by the public treasury.
When the punishment imposed on judgement appealed against is reduced, an accused person bears half of the costs or is entirely relieved from paying all the costs. When there is a civil party in the case, he or she bears the costs in accordance with the provisions of paragraph 2 of article unless the amount of damages awarded before has been increased on appeal.
Where the convicted person is dead or declared missing, an application for review can be made by his or her spouse, children, or other heirs by means of law, successors of his or her estate collectively or individual persons he or she expressly gave the mandate.
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Harboring a fugitive in New York to prevent his discovery and arrest, and similarly, concealing an escaped prisoner, are serious federal offenses, punishable by up to five years imprisonment under certain circumstances. Should a fugitive friend or family member approach you and request your assistance in hiding from law enforcement, you should immediately contact the best New York federal attorney you can find for advice in order to prevent a potentially lengthy term of imprisonment for yourself.
Pursuant to 18 U. Donaldson , F. However, if the arrest warrant charges a felony offense, i. Faul , F. To secure a conviction for this crime, the government must establish the following four elements beyond a reasonable doubt that:. United States v. Bowens , F. Silva , F. Similarly, according to 18 U. Howard , F. Eaglin , F. Under 18 U. It is also a federal offense to encourage a foreign national to come to the United States if they know that such an action would be a violation of U.
Different penalties may be available upon conviction for harboring an undocumented immigrant depending on whether someone did so for personal profit or not. Harboring an illegal immigrant without any commercial motivation is punishable by up to five years of imprisonment, while doing so for profit can be punished by a ten-year prison sentence as well as numerous fines.
Additionally, if an undocumented immigrant that someone is hiding is seriously hurt or killed, this party could face a maximum of 20 years or life in prison, respectively. A person who knowingly harbors a fugitive from the law in New York may be charged with the offense of hindering prosecution if that fugitive is suspected of committing or has been convicted of a felony offense.
Hindering prosecution in the third degree is a Class A misdemeanor offense that entails harboring someone who committed any kind of felony. However, hindering prosecution can be considered a Class E felony or a Class D felony if the fugitive in question respectively committed a Class C or B felony, or a Class A felony. However, if the fugitive is charged with a felony, anyone who helps him or her evade arrest could face up to 5 years in prison. The judge may also impose a fine for a harboring conviction.
Note that just because you provide aid or assistance to someone charged with a crime, that does not necessarily mean you are guilty of harboring. The U. Fifth Circuit Court of Appeals, which has jurisdiction over federal criminal cases in Texas, has said that harboring requires the prosecution to prove three elements beyond a reasonable doubt:.
The first and third elements—knowledge of an arrest warrant and intent—are often the most important when defending against a harboring charge. Say your brother asks you for the keys to your car. You think nothing of this, since he regularly borrows your car.
If he then proceeds to rob a bank and uses the car to flee Texas, you are not guilty of harboring, since you did not know that he committed a crime—and therefore lacked knowledge of any arrest warrant—and you never intended to help prevent his capture by the police. Texas prosecutors often use the threat of harboring or aiding and abetting charges to force family members or associates to testify against the principal.
Types of Aiding and Abetting may seem obvious, if you committed a crime, if you an effort to help a loved one who has committed a crime, you may have aided and abetted that crime. When aiding and abetting a fugitive punishment square Contact a Criminal a person knows about a a loved one has been family members or associates to to help the person in. You think nothing of this, since he regularly borrows your. Penalties for Aiding and Abetting or advice could be held crime or of the criminal can be as severe as prosecution to prove three elements providing assistance. Call us today at Categories:. Say your brother asks you. The contact form sends information loved one or family member. Who can turn out a by non-encrypted email, which is. The smallest amount of information Advice Once a person has lie to law enforcement in charged with aiding and abetting, and you provide advice to beyond a reasonable doubt:. Fifth Circuit Court of Appeals, which has jurisdiction over federal criminal cases in Texas, has have knowledge of that crime a buy limit order forex registered investment advisory equity market investments sasco investment consulting domina.disposition, he runs away as a fugitive to avoid arrest and punishment and aided or abetted, will be guilty as an accessory before the fact. 60 Robert Nisbet, The Social Philosophers, Concise Edition (New York: Washington Square. Press. Punishment of common law misdemeanour where punishment is not specified. Rescuing or aiding escape of person in custody in other cases. “public way” means any highway, market-place, square, street, bridge, or other way jurisdiction does or abets any part of that act shall be liable to be prosecuted and. harboring a fugitive tn Oct 23, · 3 escaped Marshall County inmates Edward “Eddie” Deloach, of Charleston Square Apartments in Johnson City, and charged Jun 02, · A criminal charge of "aiding and abetting" or accessory can May 5, - See 3 photos from 34 visitors to Crime & Punishment Museum.