India-Portugal Extradition

Source: The Indian Express 

Introduction 

Extradition represents a crucial mechanism in international criminal law that enables countries to cooperate in bringing fugitive criminals to justice across national boundaries. The case of gangster Abu Salem, extradited from Portugal to India in 2005, exemplifies the complexities and legal intricacies involved in extradition proceedings. This case has brought significant attention to the bilateral extradition framework between India and Portugal, particularly regarding the enforcement of extradition conditions and prisoner rights. The ongoing legal battle over Salem's early release has highlighted important questions about the interpretation and implementation of extradition agreements between sovereign nations. 

What was the Abu Salem Incident and What were the Court Observations? 

• An absconding accused in the 1993 Bombay blasts case, where he was allegedly tasked with transporting and concealing weapons as part of a terrorist conspiracy that resulted in 257 deaths across Mumbai.  
• Salem fled India and remained a fugitive until his detention in Lisbon, Portugal in 2002, where he had undergone plastic surgery to alter his appearance but was identified through fingerprint records. 
• Following his extradition to India in November 2005, Salem was convicted and sentenced to life imprisonment in both the 1993 Bombay blasts case and the 1995 murder of builder Pradeep Jain. In recent years, Salem has approached various judicial forums seeking early release, claiming entitlement to remission benefits and arguing that his 25-year imprisonment period (as per extradition conditions) should be calculated from his initial detention in Portugal in 2002. 
• The Supreme Court, in its 2022 ruling, categorically rejected Salem's plea for special privileges, stating that considering the gravity of his offences, no exceptional treatment could be extended. The Court clarified that his detention period should be calculated from his extradition to India, not from his arrest in Portugal, as he had been convicted in Portugal for entering the country on fraudulent documents. The Bombay High Court has consistently maintained that Salem must serve the complete 25-year term as actual imprisonment without remission, with his potential release date being November 10, 2030. 

What is Extradition? 

• Extradition is a formal legal process through which one sovereign state surrenders an individual to another state for prosecution or punishment of criminal offences. 
• This mechanism of international legal cooperation allows countries to prevent their territories from becoming safe havens for criminals seeking to evade justice. The process involves complex legal procedures, diplomatic negotiations, and adherence to both domestic laws and international treaties. 
• The extradition process typically requires the requesting state to demonstrate sufficient evidence of the alleged crime, ensure that the offence is recognized as criminal in both jurisdictions (principle of dual criminality), and provide assurances regarding the treatment of the extradited individual.  
• Modern extradition law balances the need for international criminal cooperation with the protection of individual rights and sovereignty principles. 

What are the Extradition Relations Between India and Portugal? 

• India and Portugal have established a comprehensive legal framework for extradition cooperation through a bilateral treaty signed on January 11, 2007.  
• This agreement entered into force on November 14, 2008, after both countries completed their respective internal ratification procedures - India ratified the agreement on October 25, 2007, while Portugal confirmed completion of their ratification process through Embassy Note verbale number 368 dated October 14, 2008. 
• The Ministry of External Affairs serves as India's Central Authority for extradition matters, with the CPV Division acting as the nodal point for processing extradition requests. The relationship between the two countries in extradition matters is governed by principles of reciprocity, respect for sovereignty, and adherence to internationally recognized standards of criminal justice cooperation. 

What is the Agreement on Extradition Between India and Portugal? 

• The Agreement on Extradition between the Republic of India and the Portuguese Republic establishes a comprehensive legal framework governing the surrender of fugitive criminals.  
• Article 1 obligates both states to extradite accused or convicted persons, while Article 2 defines extraditable offences as those punishable by at least one year imprisonment under both states' laws.  
• Article 3 permits refusal of nationals' extradition but requires domestic prosecution, and Article 4 lists mandatory refusal grounds including constitutional violations and political offences.  
• Articles 5 and 6 establish the specialty rule and re-extradition restrictions. Articles 8-10 detail procedural requirements including diplomatic communication, documentation, and provisional arrest provisions. 
• Articles 11-13 govern surrender processes, postponement options, and property transfer.  
• Articles 14-16 address transit arrangements, expense allocation, and translation requirements. Articles 17-18 preserve international obligations and establish entry into force provisions with termination procedures. 

Conclusion 

The India-Portugal extradition framework represents a sophisticated legal mechanism designed to balance international criminal cooperation with individual rights protection and state sovereignty. The Abu Salem case demonstrates both the effectiveness of this bilateral system in bringing fugitive criminals to justice and the importance of strictly adhering to extradition conditions and assurances provided during the legal process. The judicial pronouncements in Salem's case have established important precedents regarding the calculation of imprisonment terms, the application of remission benefits, and the binding nature of international extradition assurances. This legal framework continues to serve as a model for international criminal cooperation while ensuring that the rule of law and diplomatic commitments are upheld in both jurisdictions.