Legal Literacy - Extradition is the process of returning a person suspected or accused of committing a crime (Deli Waryenti, 2012). The extradition process can only be carried out after the country where the perpetrator is located (referred to as the Requested State) has an international agreement regarding the extradition with the requesting country (referred to as the Requesting State).

Based on this understanding, the extradition carried out by the requesting country aims to ensure that the perpetrator of criminal acts or crimes can be held accountable for all actions committed. This request is also for the sake of the perpetrators of crimes to be tried because it is unethical and contrary to justice if the perpetrators of crimes are not tried and punished for their criminal acts.

The requesting country's request to surrender the perpetrators of crimes to be tried is also based on the definition of extradition by M. Cherif Bassioni, who states that extradition is a legal process based on treaties, reciprocity, respect, or national law, in which a country grants or sends to another country, a person accused or convicted of a crime against the law of the requesting country that violates criminal law international law in order to be tried or punished in the requesting country in connection with the crime stated in the request (M. Cherif Bassioni in Anis Widyawati, 2014).

In Indonesia itself, there is already an Extradition Law, namely Law No. 1 of 1979 concerning Extradition, which provides an understanding of extradition, namely the surrender by a country to a country requesting the surrender of a person suspected or convicted of committing a crime outside the territory of the surrendering country and within the jurisdiction of the territory of the country requesting the surrender, because it is authorized to try and punish them.

In Indonesia itself, extradition is considered a bilateral agreement that can also be considered as a form of implementation of the principle of reciprocity, which is the principle of international relations in law international law. Extradition cooperation is carried out so that criminals can no longer flee to other countries that have been involved in cooperation in extradition agreements. This is because usually, criminals flee or hide in other countries that are not the country where they committed the crime, with the aim of not being tried because the country where they are located does not have the authority to try their crime. To avoid the attitude of criminals who do not want to be responsible and run away, there should be a surrender or extradition of the perpetrators of crimes to the country where they committed the crime to be held accountable for their actions.

Elements of Extradition

According to I Wayan Parthiana, 2009, the elements of extradition include:

  • Subject element: the requesting state as the country that has an interest in trying or punishing the perpetrator and the requested state as the country where the perpetrator is (currently) located.
  • Object element: the person/individual requested to be handed over (suspect, defendant, or convict)
  • Procedure/method element: There is a request, carried out formally
  • Purpose element: to try the person requested or to carry out the punishment (or the remainder of the punishment) against them.
  • Basic element/legal basis: There is an extradition treaty or the principle of reciprocity

There are several extradition principles that are used as the basis for an extradition process, namely:

  1. The principle of double criminality (Article 16 paragraph 1 UNTOC, Article 4 of Law No. 1 of 1979 concerning Extradition), namely that an act that is used as the basis for an extradition request must be a crime according to both the law of the requesting country and the requested country.
  2. The Principle of Specialty (Article 14 of the United Nations Model Treaty on Extradition 1990) is that extradition can only be carried out if there is an act that is expressly stated as the basis for the requesting country to carry out extradition.
  3. The principle of non-extradition of nationals (Article 16 paragraph 10 UNTOC, Article 7 of Law No. 1 of 1979 concerning Extradition). This is because the country where the perpetrator of the crime is located, where the perpetrator is its own citizen, has an active national principle or has the right to try its own citizens. So without the surrender or extradition of the country of origin of its citizens, it can automatically directly try them with this active national principle.
  4. The principle of non-extradition of political criminals (Article 16 paragraph 14 UNTOC, Article 5 of Law No. 1 of 1979 concerning Extradition). The reason for not extraditing someone who commits a political crime is, firstly, for the sake of justice to protect human rights in politics, even if it is different from the political understanding of the legitimate ruler. This is also based on Article 5 paragraphs 1 and 3 of Law No. 1 of 1979 that if a certain crime by the requested country is considered a political crime, then the extradition request can be rejected, unless otherwise agreed by the requesting country with Indonesia.
  5. The principle of nebis in idem (Article 9 European Convention on Extradition and Articles 10 and 11 of Law No. 1 of 1979) which states that the requested country can reject extradition to perpetrators of crimes who have been tried and have a final decision.
  6. The Principle of Statute of Limitations (Article 10 European Convention on Extradition and Article 12 of Law No. 1 of 1979 concerning Extradition) which states that the requested country has the right to reject an extradition request if the prosecution or execution of the punishment for the crime that is the basis for the extradition request has passed (both according to the law of the requesting country and the requested country).

Although several international principles in extradition are mentioned in Law No. 1 of 1979 concerning Extradition, this Law in Indonesia needs to add some more substance regarding extradition arrangements, such as accelerating the surrender or extradition procedure and simplifying evidence as applied in Article 8 UNTOC and Article 12 UNTOC, that punishment should apply to citizens, the requested country.

Some examples of international agreements governing extradition include, for example, the bilateral agreement between Indonesia and Malaysia in the Article Extradition Treaty between Indonesia and Malaysia, Article VIII Extradition Treaty between Indonesia and the Philippines, the multilateral agreement with the European Convention on Extradition, the United Nations Model Treaty on Extradition. Regional agreements such as the Model ASEAN Extradition Treaty.

Examples of extradition cases that have been carried out by Indonesia

With the Extradition Treaty between Indonesia and Australia signed on April 22, 1992, which has been ratified and enacted by the Indonesian government through Law Number 8 of 1994, the Australian Government succeeded in extraditing the perpetrator of the Indonesian corruption crime, Adrian Kiki, who was sentenced to life imprisonment on July 2, 2003, who fled during the legal appeal examination process at the DKI Jakarta High Court.

Adrian Kiki was found guilty of the criminal act of corruption of Bank Indonesia Liquidity Assistance, the Jakarta District Court sentenced Adrian Kiki in absentia and sentenced him to life imprisonment. However, he fled to Australia. At the request for extradition made by Indonesia on September 28, 2005, Australia in December 2010, approved the extradition request requested by Indonesia so that Adrian Kiki could serve his sentence and be executed according to Indonesian criminal law.

However, in Australia there is a rule that extradition must go through Judicial Review or appeal. So Adrian Kiki filed an appeal to the Parth Federal Court, and the Parth Federal Court approved Adrian Kiki's appeal. The Australian Government rejected the appeal decision and continued to appeal to the High Court of Australia. Until finally the Australian High Court overturned Adrian Kiki's appeal decision and agreed with the Australian Government to extradite Adrian Kiki to Indonesia.

The case is interesting and if you pay attention, it turns out that the surrender or extradition is not necessarily easy and can be done immediately, there needs to be a cooperation agreement first between the government of the requesting country and the requested country, and must meet a number of extradition regulations in the requested country. However, because Indonesia and Australia have an extradition agreement as a valid legality reason for carrying out extradition, Adrian Kiki's extradition could finally be carried out by the Australian government with the support of the High Court of Australia to Indonesia to serve his criminal sentence.

The case is interesting and if you pay attention, it turns out that the surrender or extradition is not necessarily easy and can be done immediately, there needs to be a cooperation agreement first between the government of the requesting country and the requested country, and must meet a number of extradition regulations in the requested country. However, because Indonesia and Australia have an extradition agreement as a valid legality reason for carrying out extradition, Adrian Kiki's extradition could finally be carried out by the Australian government with the support of the High Court of Australia to Indonesia to serve his criminal sentence.

References

Waryenti, Deli 2012. Extradition and Some of its Problems. Fiat Justitia Journal of Law Volume 5 No. 2
I Wayan Parthiana, 2009, Extradition in Law Modern International, Yrama Widya, Bandung, pp. 39-43.
Anis Widyawati, 2014, International Criminal Law, Sinar Grafika, Jakarta, pp. 173-174.
*This article represents the personal opinion of the author and does not represent the views of the editors Legal Literacy Indonesia.