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Файл:Актуальные проблемы теории и практики применения уголовного закона. Сборник материалов Четвертой Всероссийской научно-практической конференции
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Попова Е. Э.
преступлений, отбывают наказание и к ним также применяется общественное воздействие, как закрепленный законом элемент исправительного процесса. Так, например, противодействие религиозному экстремизму призваны осуществлять традиционные религиозные
конфессии. В штаты территориальных управлений ФСИН России
введены должности помощников начальников по организации работы с верующими. На работу общественных образований обращает
внимание Президент РФ в своем ежегодном послании ФС РФ, где
он отмечает, что воля и великодушие граждан, которые участвуют
в таких проектах, формируют столь необходимую России атмосферу общих дел, создают колоссальный социальный потенциал, и он
должен быть обязательно востребован
1
, а режимные требования
к процессу исполнения наказаний определяют основные организационные и административные требования к участию институтов
гражданского общества в работе с осужденными.
В этом случае вполне правомерно говорить о ведущем положении режима, как средстве обеспечения порядка и условий исполнения уголовного наказания. Кроме того, режим, по отношению
к общественным образованиям и гражданам, участвующим в обеспечении общественного воздействия, является средством установления
правил поведения на территории исправительного учреждения,
дисциплинирующим фактором, обязывающим соблюдать установленный порядок исполнения уголовного наказания. Режим способствует предупреждению совершения правонарушений и преступлений
в исправительном учреждении не только со стороны осужденных,
но и субъектов общественного воздействия2, в том числе посредством проведения оперативно-розыскных мероприятий.
Таким образом, режим, определяя порядок и условия исполнения уголовного наказания, воздействует на субъекты уголовно-исполнительных отношений, средства исправительного воздействия,
а также создает условия для их развития в соответствии с действующим законодательством.
1
Послание Президента РФ ФС РФ от 1 декабря 2016 г.. Москва. Кремль:
Официальный Интернет-сайт Президента РФ: URL: http://www.kremlin.ru/
events/president/news/53379.
2
Ярким свидетельством является задержание председателя Общественной
наблюдательной комиссии Петербурга В. Маиуса по подозрению в даче взятки, который использовал свою общественную деятельность в нарушение ФЗ
«Об общественном контроле за обеспечением прав человека в местах принудительного содержания и о содействии лицам, находящимся в местах принудительного содержания»: URL: http://www.fontanka.ru/2016/08/19/141/.
РАЗДЕЛ IV
Международный и зарубежный опыт
противодействия преступности
Анжело В. Матуссе
зам. Генерального прокурора Республики
Мозамбик, Судья Африканского суда
по правам человека, преподаватель
на факультете Мондлане университета
в Мапуту (Мозамбик)
Экстрадиция в Африканских странах:
на примере республики Мозамбик
1. Introduction
One of the features inherent to state sovereignty (a fundamental
principle that underpins relations between states) is the exercise
of (criminal) jurisdiction over the state’s territory. This means, for instance, that every state has legal authority over the people within
its borders and that, when a crime is committed, it is the responsibility
of the state to investigate, bring the perpetrator to stand trial and,
upon conviction, be punished for his/her unlawful conduct. The pursuit of this goal, however, cannot realistically take place solely within
the confines of the national boundaries.
In the context of globalization, whereas eased mobility of persons
around the world, coupled with advances in information technology
and modern means of transport, represent a positive accomplishment
by mankind, it opens windows of opportunity for criminals to escape
prosecution and justice. Offenders take advantage of these developments and move comfortably from one state to another in search of
places where they can shield themselves and the evidence of their
criminal activities from detection.
There is a consensus in International Law that a state has no legal
obligation to surrender an alleged offender to a foreign state. Moreover,
252
Анжело В. Матуссе
non-interference in the domestic affairs of another state is an established principle of International Law
1
, which entails the prohibition
of states from, e. g., entering the territory of another state without
prior consent of the latter, let alone to arrest a suspect. Otherwise,
such an act would amount to a gross violation of International Law.
The challenge that arises for the law enforcement authorities, therefore, is how they can ensure that a perpetrator, who happens to be outside
the boundaries of the state in which the crime was committed, or where
the effect of the crime was felt, is indeed accountable to justice?
This paper aims to provide a brief overview as to how African States
respond to that challenge, bearing in mind that one of the most common
means by which states cooperate in their efforts to ensure that no criminal
goes unpunished, just by sitting beyond the reach of their sovereign
authority, is extradition2. The paper examines the practice in African states,
in general, by reviewing relevant extradition instruments and cases.
The case of Mozambique is singled out and reviewed in-depth, even
though it is acknowledged that by no means it can be taken as an re presentative sample unit of the universe of «extradition practices in African
Countries».
2. The concept of and the legal basis for extradition
Extradition is commonly understood to mean the physical surrender
by one state (the requested state), at the request of another state (the
requesting state), of a person who is either accused of or has been convicted for a crime by the requesting state3.
Just like in any other region, extraditions processes in Africa are
governed either by treaties (bilateral/multilateral) or domestic law,
and sometimes, by the combination of both.
1
See Principle 3 of the 1970 Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations (GAR 2625). See also Principle IV of
the Final Act of the Conference on Security and Cooperation in Europe, Aug. 1,
1975 (Helsinki Declaration).
2
Others include mutual assistance, transfer of sentenced prisoners, transfer
of proceedings and cooperation in the restraint and forfeiture of proceeds of crime.
3
See, e. g.: Proust K «International co-operation: a Commonwealth perspective»
2003 SACJ 295–310; Katz A «The incorporation of extradition agreements» 2003 SACJ
311–322; Dugard International Law 214; Kemp in DuToit et al Commmentary App B15.
253
Актуальные проблемы теории и практики применения уголовного закона
2.1. Treaty-based extradition
A web of bilateral and multilateral extradition agreements exists
between different African states
1
aiming to simplify the processes of sur-
render and hand-over of fugitives to the jurisdiction in which they are wanted.
Although, «historically, and even today, most countries have at least
some bilateral extradition agreements and these remain the most predominant and still, for many states, the exclusive basis for extradition»2, intriguingly, inter-African bilateral extradition agreements are
relatively scarce. For instance, Mozambique has no bilateral extradition
treaty with any of its neighbouring countries, as yet, let alone with other
African states, save for those agreements aimed at exchanging of prisoners3. This and other judicial cooperation weaknesses have been greatly
exploited by criminal syndicates across Africa. For example, the absence
of a bilateral extradition treaty between South Africa and Mozambique
is, at least partially, responsible for the killing of over 1500 rhinos
in the Great Limpopo Trans-frontier Park, straddling the borders of
Mozambique, South Africa and Zimbabwe. Poachers and syndicate kingpins operating within the Park, from Mozambique, conduct their
criminal activities and sleep peacefully, while flaunting their newlyamassed wealth by day, unguardedly in the knowledge that there is no
Criminal Extradition Treaty between Mozambique and South Africa
that could see them facing justice in South African courts4.
1
See, e. g., bilateral extradition treaties between Kenya and Rwanda, of
30/09/09; South Africa and Egypt, Algeria, Nigeria (all of them passed by Parliament
on 11/11/02).
2
Prost K «Breaking Down the Barriers: International cooperation in combating
transnational crime», at p. 4. Available on https://www.oas.org/juridico/mla/en/
can/en_can_prost. en_html (accessed in 26/09/16).
3
E. g., Mozambique and Zambia — 26/07/2011; Mozambique and Malawi —
25/03/2012.
4
With this in mind, and confronted with the peak of the unprecedented and
escalating illegal rhino poaching at the Great Limpopo Trans-frontier Park, in 2014,
infuriated civil society organizations have, put in motion a petition for an urgent
move towards the signing of a bilateral extradition agreement between Mozambique
and South Africa, which was handed to the relevant authorities both in Mozambique
and South Africa. See: «Urgent Extradition Treaty Required between South Africa
and Mozambique». Africa Wild. Available in: http://www.change.org/p/ministrabenvinda-levi-urgent-extradition-treaty-required-between-south-africa-andmozambique. (accessed on 25/09/16).
254
Анжело В. Матуссе
In the absence of bilateral extradition agreements, some African
states have resorted to an established, though not official, practice of
«disguised extradition», or simply Police to Police surrender of fugi-
1
tives
. At best, some simply rely on their domestic legal frameworks
coupled with the demand for reciprocity. Resorting to «disguised
extradition» or Police to Police surrender of fugitives has given rise
to human rights violations given that the alleged suspect will have no
opportunity to challenge the process in court2.
The existing bilateral extradition agreements are chiefly recent
and reflect the new determination on the part of the states to work
more closely with each other to face up to the growing threat of organized crime. They seem to have been spurred by the UN’s increasing
emphasis on ‘crime prevention’ and the evolution of ‘criminal justice’
programmes in view of the escalation of transnational organized crime
over the last decades3.
Interestingly, most African states have entered into bilateral extradition agreements with their former colonial powers4 and, at best, with
few other European states, as well as the United States of America5.
The scarcity of inter-Africa bilateral extradition agreements is somewhat taken care of by the evolving multilateral arrangements such as
those between neighboring and closely-knit countries. These include
1
For example, the South African Police surrendered to the Mozambican Police
Aníbal dos Santos Júnior (aka Anibalzinho), a Mozambican suspect who had fled
to South Africa, in 2009, outside any formal extradition procedure. Even in cases
where there was a bilateral extradition treaty, such as in the Samotse case, Mr. Edwin
Samotse was surrendered to Botswana by the officials of the Ministry of Home
Affairs of South Africa, in August 2014, in spite of an order by the Minister of
Justice of that country to the effect that he should not be surrendered as Botswana
had failed to provide the undertaking requested by South Africa.
2
See the cases reviewed bellow.
3
See M Pinto «Asian-African Legal Consultative Committee: Annual Survey
of Activities 1995–1996, including the work of its Thirty-fifth Session, held in
Manila, 4–8 March 1996» in K Sik et al (eds.) Asian Yearbook of International Law
Vol 6, Kluwer Law International 1996, at p. 300.
4
Mozambique has a bilateral MLA and extradition agreement with Portugal,
namely; the Lisbon Legal and Judiciary Cooperation Agreement of April 12, ratified
by Resolution No. 10/91, of December 12.
5
See the list of countries with bilateral extradition treaties with the USA in:
http://en.m.wikipedia.org/wiki/List_of_United_States_extradition_treaties
(accessed on 26/09/2016).
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Актуальные проблемы теории и практики применения уголовного закона
the 1961 General Convention on Judicial Cooperation (Convention
générale de coopération en matière de justice), signed within the framework of the Afro-Malagasy Common Organization (Organisation Commune Africaine et Malgache); the Convention on Extradition between
the Member-States of the Community of Portuguese Speaking States
(CPLP); the arrangements between the Commonwealth countries,
akin to those that had previously existed for extradition of offenders
within the British Empire under Fugitive Offenders Act of 1881
(the Commonwealth Scheme)2. In addition, sub-Regional extradition
treaties such as the 1994 Economic Community of West African States
(ECOWAS) Convention on Extradition, the 2002 Southern African
Development Community (SADC) Protocol on Extradition and the 2009
Inter-Governmental Authority on Development (IGAD) Convention
on Extradition, play a crucial role in addressing crime.
Apart from the bilateral extradition agreements and the arrangements between neighbouring and closely-knit countries alluded to
earlier, African states, in general, are parties to several multilateral
specialist crime suppression conventions, which set out substantive
and/or procedural legal mechanisms for extradition3. In most cases,
multilateral conventions fill gaps, complement and, sometimes, supplement the existing extradition arrangements, which a state is already,
party to. In some of those cases, where there is no bilateral extradition
agreement, multilateral conventions may even operate as a basis for ex-
1
1
Adopted in Praia City, Cape Verde, on 23 November 2005. On the same date, two
more equally important conventions were adopted, namely; the MLA Convention
and the Transfer of Prisoners Convention.
2
The scheme was adopted at the 1966 Meeting of Commonwealth Law Ministers,
with subsequent amendments in 1986 and 1990. Unlike the European Convention,
the scheme is not an actual instrument for rendition. Rather it is a set of agreed
recommendations, intended to guide Commonwealth governments in regulating their
rendition relations with other Commonwealth states. Generally the scheme will be
implemented within the relevant states through legislation and administrative action.
3
They are, inter alia, the 1936 Convention for the Suppression of the Illicit Traffic
in Dangerous Drugs; the 1937 Convention for the Prevention and Punishment
of Terrorism; the 1950 Convention for the Suppression of the Traffic in Persons
and of the Exploitation of the Prostitution of Others; the 1961 Single Convention
on Narcotic Drugs; the 1971 Convention on Psychotropic Substances; the 1970
Hague Convention for the Suppression of Unlawful Seizure of Aircraft; the 2000
Convention Against Transnational Organized Crime.
256
Анжело В. Матуссе
tradition between the signatories for the surrender of fugitive criminals
accused or convicted for offences provided for in those conventions
1
.
It is noteworthy that while the absence of an extradition treaty between the requesting and the requested states would simply mean
«no obligation to extradite», yet the requested state may still be required
to surrender the wanted person or to punish him/her under its own
laws, as per the maxim aut dedere aut judicare (extradition or trial).
2.2. National legislations
It is clearly unrealistic for a state to afford to have bilateral extradition treaties with every other state in the world. Thus, besides
the multilateral conventions approach to extradition, directed at specific
crimes, African states are increasingly adopting a new approach: extradition without treaty, i. e., based on their own domestic legislation. This
approach would almost always attract the reciprocity condition. One
of its key advantages is that it provides for a broader base for extradition, placing countries in a much better position to respond to the particular situations that may arise, where extradition is a necessity.
Some domestic extradition legislations, in Africa, generally deal with
procedural aspects for handling incoming requests for extradition. Others
go beyond the procedural aspects and grant authority to accept such
requests. In other instances, they combine both approaches.
3. Extradition practices across Africa
There is no standard extradition practice in Africa that is consistently followed by all 55 states making up the whole continent Consistency
is not just lacking Africa-wide, but even in different cases handled
within a single state. The cases bellow are simply illustrative of some
practices.
The Tsebe case
2
Mr. Tsebe, a citizen of Botswana, fled to South Africa while he was
facing murder charges before the Botswana courts. Botswana and
South Africa have an extradition Treaty, whose article 6 provides that:
1
E. g., the 2000 Convention Against Transnational Organized Crime.
2
Minister of Home Affairs & Others v. Emmanuel Tsebe & Others (Case
No. 27682/10).
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Актуальные проблемы теории и практики применения уголовного закона
Extradition may be refused if under the law of the requesting Party the
offence for which extradition is requested is punishable by death and if
the death penalty is not provided for for such offence by the law of the
requested Party.
1
Botswana filed an extradition application, requesting South Africa
to extradite him to stand trial in Botswana. He was then arrested
pending the extradition proceedings in the courts of South Africa.
Death penalty was abolished in South Africa but it is provided for
in the laws of Botswana. In its consideration of the extradition request,
South Africa sought an undertaking from Botswana that if convicted,
the requested person would not be executed. Botswana refused to provide
the undertaking requested by South Africa stating that the undertaking
is not provided for in the laws of Botswana and neither in the treaty
between the two countries.
Although Botswana failed to provide the undertaking required, the
Magistrate found that Mr. Tsebe was liable for extradition to Botswana.
However, the Minister of Justice issued an order to the effect that
Mr. Tsebe should not be extradited. Subsequently, the Minister
changed his mind, stating that indeed Mr. Tsebe should be extradited
to Botswana. He stated that although there was a risk that he would be
executed, South Africa would use other forums under the auspices
of SADC to try and get Botswana not to execute the death penalty.
Mr. Tsebe filed an urgent application requesting the High Court to
interdict the South African authorities from extraditing him. Although
he died before the matter was finalized, the High Court ruled that
extraditing Mr. Tsebe to Botswana would be unlawful as the extradition
would subject him to the risk of being executed.
The Samotse case
2
Samotse is a Botswana citizen who was charged with murder by
the Botswana Courts. Later, he fled to South Africa where he was
detained for one year. Upon filing an extradition request, Botswana
refused to provide the necessary assurance requested by South Africa,
that he would not be executed upon conviction. Samotse was surrendered
1
Issue 2, Parties 1969, Extradition Treaty between South African and the Republic
of Botswana.
2
Samotse and Another v Minister of Home Affairs and Others.
258
Анжело В. Матуссе
to Botswana by the officials of the Ministry of Home Affairs, in spite of
an order by the Minister of Justice that he should not be surrendered as
Botswana had failed to provide the undertaking requested by South
Africa. After his extradition, the South African Lawyers for Human
Right filed a case before the High Court contesting the constitutionality
of the surrender. The High Court held that:
the extradition to Botswana of Samotse, a man sought on murder
charges in that country, where he may face the death penalty, was
a violation of the South African Constitution and illegal.
The High Court also added that:
the conduct of the immigration officials […] infringed [Edwin
Samotse’s] rights to human dignity, to life and not to be subjected to cruel,
inhuman or degrading treatment […]
The Mohamed Case
1
Mr. Mohamed, a Tanzania national, was accused of conspiring with
other terrorists in the bombing of the Embassies of the United States
of America (U. S. Embassies) in Nairobi and Dar es Salaam. Subsequently, he fled to South Africa. South Africa and the United States
had between them an extradition treaty dating back to 1951. Mohammed was known to be in South Africa in August 1999. A month later,
in September 1999, the South African authorities travelled to the United
States where a new extradition treaty was concluded. Among other
things, the new extradition treaty provided that a fugitive can be extradited with his or her consent without further extradition procedures.
Mohamed was then arrested on 5 October 1999, and flown out to
the United States the following day.
While he was already in the United States, Mohamed filed an application in the court of South Africa alleging that his surrender to
the United States was unlawful. One of the questions for consideration
by the South African High Court was whether Mohamed’s removal
was a deportation or whether it was an extradition. The Court considered that if it were to be viewed as an extradition, South Africa ought
to have secured an assurance from the United States that a death sentence would not be imposed on him.
1
Mohamed v. President of the Republic of South Africa and Others 2001 (3) SA
893 (CC).
259
Актуальные проблемы теории и практики применения уголовного закона
The Court ordered the South African authorities to submit a written
request to the Government of the United States of America for an undertaking that the death penalty would not be sought nor carried out,
if Mr. Mohamed were to be convicted. The South African authorities
submitted that they could not have sought such an assurance because
Mohamed was deported, and not extradited.
World Cup bombings suspects case
1
After the July 2010 bombings in Kampala-Uganda, a number of
persons suspected to have taken part in those bombings fled to Kenya
and Tanzania. Kenya arbitrarily detained at least 12 Ugandan and Kenyan2 nationals suspected of involvement in the bombing; allegedly
exposed them to, and/or threatened them with, physical abuse; and unconstitutionally rendered them to Uganda. The East African Community
Treaty simply urges States to closely co-operate in defense affairs3.
Similarly, and outside of any formal extradition arrangements,
a Kenyan citizen and a Tanzanian citizen, suspected of having been
involved in the July 2010 bombings in Uganda, were both arrested
in Tanzania and extradited to Uganda, in 2011, to stand trial on murder
and terrorism charges. After the Magistrate in Tanzania granted the
order for their extradition, the fugitives were informed that they had
the right to appeal the extradition decision before a higher court in
Tanzania. However, they were extradited to Uganda before they could
file their appeals.
The Mukulu case
Yet, in another case, a fugitive Mr. Jamil Mukulu, was extradited
from Tanzania to Uganda to stand trial on terrorism and murder
charges. Mr. Mukulu, a Ugandan citizen, was alleged to be the head
of Allied Democratic Forces. This was a group of terrorists, which had
committed a series of attacks and atrocities against Uganda between
1998 and 2000, in which more than 1,000 people were allegedly killed.
1
The July 11, 2010 Kampala-Uganda bombing killed over 70 people who had
gathered in two locations to watch the final match of soccer’s World Cup, and
injured an equal number.
2
Amongst them were Idris Mogondu, Mohammed Adan Abdow, and Hussein
Hassan Agade.
3
Treaty Establishing the East African Community, Article 125.
260
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