The Schtraks Case, Defining Political Offences And Extradition
| Published date | 01 January 1965 |
| Author | C. F. Amerasinghe |
| Date | 01 January 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01044.x |
THE
SCHTRAKS
CASE, DEFINING
POLITICAL OFFENCES AND EXTRADITION
IT
is an accepted rule that extradition
is
not granted
if
it
is proved
that the offence is a political offence,l in the sense that certain
circumstances which surrounded the commission of the offence give
it
a specifically political character.2
A
pressing problem is that of
determining what exactly these circumstances are.
As
Sir
James
Stephen pointed out in
1888,
the term political offence cannot refer
to offences which have for their object an attack
on
the state as
such
or
on
the political order as such.8 Offences such as treason
and seditious libel which have such an object are not normally
extraditable offences,
so
that
it
is not possible to interpret the rule
as referring to them.
It
would seem to be natural that the exception
should refer to offences that are generally extraditable, that is, to
ordinary extraditable crimes which become non-extraditable
for
special reasons.
In
this sense it is entirely true to say that
‘‘
every
political offence presumes an attack
on
the law, but not every attack
on
the law is a political offence.”
The problem of determining what these reasons are is not a new
one.
As
early as
1&54,
when France.requested the extradition
of
two Frenchmen who had attempted
to
cause an explosion
on
a
railway line with the purpose
of
assassinating Emperor Napoleon
III,
the Belgian Court of Appeal held that the offence, being a
political one, fell within the exception and
no
extradition could be
granted. This was regarded as an unsatisfactory decision by
Belgium herself and led to the enactment of what has come to be
known as the
attentat
clause which stipulated that murder
or
attempted murder of the Head of a foreign government
or
a member
of his family should not be considered a political
a rime.^
Several
European countries have followed the Belgian example in respect
of such legislation. There have also been attempts to bring about
1
Extradition
Act,
1870,
s.
3
(1). This section is incorporated in the law
of
Ceylon, for instance, by the Extradition Ordinance, 1877,
so
that the problem
is
of importance
to
other juriadictiona than the English.
See
also,
e.g.,
16
Halsbuq’s
Laws
of
England
(3rd ed., 1956), p. 578; Piggott,
Extradition
(1910), p.
44;
De
Mello,
A Manual
of
the Law of Estradition and Fugitive
Oflenders Applicable to the Eastern Dependencies
of
the British Empire
(2nd
ed., 1933),
p.
16; Clarke,
A
Treatise upon the Law of Estradition
(3rd ed.,
1888),
p.
49; Report of the Royal Commission
of
1878, para.
III.
2
This meaning necessarily emerges as
the
following diacuaaion shows.
a
History
of
the Criminal Law of England
(1883),
Vol.
II,
p. 70.
4
Granados,
La Extradicion de
10s
Refugiados Espafioles
(1946),
p.
43.
5
For
an account
of
this restrictive tendency
see
Alcindor,
Rdpertoire de Droit
International
(1929), p. 53 and Beauchet,
Traitd de l’Extradition
(1889), p. 207
tt
seq.
See
also
Haroard Research in International Law, Draft Convention
and
Comments on Extradition
(1935), p. 114.
27
28
THE MODERN
LAW
REVIEW
VOL.
28
some international agreement on certain crimes
or
acts which should
not be included in the concept of a political offence.e And there has
been some legislation in which it had been laid down that, where
the ordinary nature of a crime predominates, what might be regarded
as a political crime should be a non-political offence for which
extradition should be granted.? But these instances do not provide
a clue to a satisfactory definition of
a
political offence.
At
best,
they indicate certain exceptional circumstances in which an offence
is not to be characterised as a political offence and are negative in
their import.8
On the positive side various definitions have been suggested
for
political offences in the law of extradition, based mainly
on
the
nature of the motive
or
object of the crime, but these have not
been fully received into practice,
so
much
so
that up to the present
all attempts to formulate a satisfactory conception of the term have
fai1ed.O Sometimes, in approaching this problem
of
definition,
English courts have stated that they did not intend to lay down
an exhaustive definition,lO while
on
one occasion
a
court intimated
that it did not want to give a wider definition than might be
possible."
In
the
Schtraks
case, the facts of which are well known,11a all
their lordships in the House
of
Lords were agreed in effect that no
exhaustive definition should be attempted.lz Lord Reid thought
that the Extradition Act did not evince an intention to define the
concept of
('
political offence
"
because
it
intended to give effect
to the principle that England should be an asylum for political
refugees.13 Lord Hodson felt that, though the Act did not intend
an exhaustive definition, the definition emerging from the
Castioni
case was good guidance, even
if
it
might be admitted that there
could be exceptional circumstances outside that definition falling
within the exception
of
political 0ffen~es.l~ Lord Evershed and
Viscount Radcliffe,
on
the other hand, while agreeing with
Lord
Reid that the purpose of the Act was to afford asylum for political
refugees, were aware that the term had to be capable of description
and limitation, even if a precise definition
were
avoided.IJ As
Viscount Radcliffe put
it,
6
Cf.,
the Russian attempt of 1881 in regard to murder or attempts to murder
and the Convention
on
Terrorism
of
1937.
7
Cf.,
The Swiss Extradition Law, 1893,
Art.
10.
8
Included in these negative elements which deprive
crimes
nr
their political
character are such factors as that they are war crimes, crimes agcinst humanity
or genocide, for instance, see Pells,
Draft
Code,
of
Offences against
the
Peace
and Security
of
Mankind
(1950)
2
I.L.C. Yearbook
278
at p. 301.
9
Oppenheim,
International Law,
8th ed.,
Vol.
I,
p.
707.
10
Re
Castioni
[1891]
1
Q.B.
149 at p. 155,
per
Denman
J.
11
R.
v.
Brizton
Prison
Governor,
ez
p.
Schtraks
[1963]
1
Q.B.
55;
[1962] 1
]la
Charge in Israel
of
pujury and child stealing, based
on
religious beliefs.
12
[1964] A.C. 556; [1962] 3 W.L.R. 1013 at pp. 1026-1037, 1031,1038-1039, 1050.
1s
Ibid. at p. 1036.
14
Ibid.
at p. 1050.
15
Ibid.
at pp: 1038 and 1031 respectively.
W.L.R.
976 at
p.
997
(D.C.).
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