double criminality

A state will not surrender a person for an act that is not a crime under its own law. The test looks at the conduct, not the name of the offence: it is enough that the facts would constitute a serious offence in both states, though the label or elements differ. The rule protects the fugitive and keeps extradition within the requested state's own public policy.

In India the Extradition Act, 1962 ties surrender to an “extradition offence” (s.2(c)), defined by the treaty or, for non-treaty states, by a minimum punishment of one year's imprisonment, and extradition treaties usually state the double criminality rule expressly. It is usually paired with the rule of speciality.

Example

Since adultery is no longer an offence in India, a request to extradite for it would fail the test of double criminality.

In Indian law

• Section 2(c), Extradition Act, 1962: extradition offence

See also

extradition · double jeopardy

Read more in the study notes

• Extradition (Public International Law)