Contents

Chapter 7
Categorisation of countries

Standard and simplified procedures

Overview

7.28We propose two extradition procedures: the simplified procedure will be reserved for approved countries, and the standard procedure will be used by all other countries. The principal difference between the two procedures will be that approved countries will not be required to produce evidence of the alleged offending. This replicates one of the current divisions in the present Act.186 Our proposal, however, differs from the current Act in not further delineating countries that must use the standard procedure as to how, for instance, they must establish a sufficient case to justify extradition.

Criteria for approval to use the simplified procedureTop

7.29The 1999 Act has little guidance as to how to evaluate whether a country should be a designated country that can use the backed-warrant procedure. In our Issues Paper, we suggested that the new Act include specific criteria. We proposed criteria that focused on a range of factors centred on the nature of New Zealand’s previous extradition relationship with a particular country, including extradition treaties, the nature of a particular country’s legal system, and that country’s commitment to the protection of human rights.187 The criteria we have included in the Bill have been carefully chosen so as not to preclude civil law jurisdictions, which might have significant differences to the way in which New Zealand conducts its own criminal trials, or indeed Common Law jurisdictions to which a ground of refusal such as the death penalty might apply unless there are sufficient undertakings.188 The essential question that ought to remain is whether the nature of the foreign country’s legal procedure makes unnecessary the added stage of a New Zealand evaluation of whether there is a case to answer.

A universal approach to the grounds for refusalTop

7.30We also considered whether the person sought ought to be able to raise grounds for refusal in the simplified procedure. In our Issues Paper, we suggested that it was unlikely that grounds for refusal arguments would succeed in the case of an approved country, due to the nature and values of that country’s criminal justice system. However, it would be difficult, and perhaps undesirable, to prohibit the making of such an argument.189 We also suggested that there should not be separate subcategories of approved countries.190 We were concerned that removing the grounds for refusal might prevent countries from being added to the approved country category in the first place. It still seems to us better, as a matter of principle, that a country with the potential to impose the death penalty might nevertheless be considered an approved country, if it were to otherwise satisfy our criteria. In the case of such a country an extradition would still not occur unless there was sufficient undertaking that the death penalty would not be imposed, but the country would not have to establish in each case that there was sufficient evidence to justify the extradition.
186Extradition Act 1999, pts 3 (standard) and 4 (backed warrant).
187Issues Paper, above n 172, at [6.37]–[6.43].
188Extradition Bill, cl 123.
189Issues Paper, above n 172, at [8.137]–[8.138].
190At [8.137]–[8.138].