International review of criminal policy - Nos. 43 and 44/Extradition
- E. Extradition
274. Given the potential for multiple territorial and extraterritorial jurisdictions, resolving the resulting jurisdictional conflicts will often require an agreement between States. It is therefore possible that the effective exercise of an agreed jurisdiction will involve extradition, since the State of physical location of the suspect may not necessarily be the appropriate forum for prosecuting the crime.
275. The terms of traditional extradition treaties will remain applicable. Computer crimes do not appear to raise any specific difficulties, provided the requirements of the extradition law and/or treaty are met. The most important issues are the requirement, again, of double criminality, i.e. the impugned conduct would be an offence punishable under the law of both the requesting and the requested State, and the fulfilling of any other conditions that would include computer crime within the category of extraditable offences. This could be accomplished either by setting sanctions for the open formula, e.g. a maximum punishment of a certain number of months, or by including computer crime in the enumerated list of extradition crimes appended to the extradition treaty in question.
276. Both conditions require careful attention in the computer crime area. The first condition highlights once again the absolute need to legislate the substantive law in each State as consistently as possible, thus avoiding loopholes or conflicting interpretations of the requirements of criminality. Currently, there is insufficient international discussion in the definition of computer crime, or at least on the constitutive elements of the most significant criminal behaviour. The efforts of OECD, the Council of Europe and the United Nations have not yet produced conclusive results. Nevertheless, the reports of these bodies contain sufficient indicators to allow States to formulate criminal laws that are consistent with the criminal laws of partner States.
277. The second condition, the extraditable character of the offence, requires an attentive legislative drafting policy. In particular, offences such as unauthorized access to computers or telecommunications facilities are often characterized as minor offences, and penalty scales may not meet the minimum threshold standards of extraditable crimes. Unfortunately, experience shows that transborder hacking cases are common, significantly affecting important transnational economic networks. It might be advisable to consider serious penalties, at least in cases where the hacking affects the international relations of the victim, whether the victim is a legal or physical person or a State. Disregarding the use of extradition or other cooperation methods could seriously hinder the efficiency of the cooperative response to this important and disturbing phenomenon.
278. Other important concerns, not specific to networking but potentially magnified by it, relate to grounds of refusal where the offence for which extradition is requested is, under the law of the requested State, viewed as having been committed in whole or in part within the territory of that State. A second problematic scenario is possible if the invoked ground for jurisdiction is an extraterritorial one but the law of the requested State does not provide such jurisdiction in similar cases. These situations might also create positive or negative conflicts of jurisdiction. The creation of channels of consultation or negotiation on order to solve such conflicts is highly recommended.