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Treaty on Extradition between the Republic of India and the Socialist Republic of Vietnam

Treaty on Extradition between the Republic of India and the Socialist Republic of Vietnam

Published vide Notification No. G.S.R. 419(E), dated 25th April, 2017

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Ministry of External Affairs

G.S.R. 419(E). - Whereas, the Treaty on Extradition between the Republic of India and the Socialist Republic of Vietnam was signed at New Delhi on the 12th day of October, 2011 and the Instruments of Ratification of the said Extradition Treaty were exchanged at Hanoi on the 12th day of August, 2013;

And Whereas, the said Extradition Treaty entered into force with effect from the 12th day of August, 2013 in accordance with the provisions of paragraph (1) of Article 22 of the Treaty;

And Whereas, the said Extradition Treaty is specified in the Schedule to this Order;

Now, therefore, in exercise of the powers conferred by sub-section (1) read with clause (a) of subsection (3) of section 3 of the Extradition Act, 1962 (34 of 1962), the Central Government hereby directs that the provisions of the said Act, other than the provisions of Chapter III, shall apply to the Socialist Republic of Vietnam with effect from the date of entry into force of the said Extradition Treaty.

Schedule

Treaty on Extradition between the Republic of India and the Socialist Republic of Vietnam

The Republic of India and the Socialist Republic of Vietnam, hereinafter referred to as "the Parties";

Desiring to provide for more effective cooperation between the two countries in the prevention and suppression of crime, and to facilitate relations between the two countries in the area of extradition by concluding a treaty on extradition of offenders;

Recognising that concrete steps are necessary to combat terrorism;

Have agreed as follows:

Article 1

  1. Obligation to Extradite.

Each Party agrees to extradite to the other Party, in accordance with the provisions of this Treaty, any person who is found in its territory and sought by the other Party for prosecution, trial, or execution of punishment for an extraditable offence, whether such offence was committed before or after the entry into force of this Treaty.

Article 2

  1. Extraditable Offences.
  2. For the purposes of this Treaty, extraditable offences are offences which, at the time of the request, are punishable under the laws of both Parties by deprivation of liberty for a period of at least one year or by a more severe penalty.
  3. An offence shall also be an extraditable offence if it involves an attempt or a plan to commit, aiding or abetting the commission of or being an accessory before or after the fact to, an offence described in paragraph 1.
  4. Where the request for extradition relates to a person sentenced to deprivation of liberty by a court of the Requesting Party for any extraditable offence, extradition shall be granted only if a period of at least six (6) months of the sentence remains to be served.
  5. For the purposes of this Article, in determining whether an offence is an offence against the laws of both Parties:-

(a) it shall not matter whether the laws of the Parties place the conduct constituting the offence within the same category of offence or denominate the offence by the same terminology;

(b) the totality of the conduct alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Parties, the constituent elements of the offence differ.

  1. Where extradition of a person is sought for an offence against a law relating to taxation, customs duties, foreign exchange control or other revenue matters, extradition shall not be refused on the grounds that the law of the Requested Party does not impose the same kind of tax or duty or does not contain a tax, duty, customs or exchange regulation of the same kind as the law of the Requesting Party.
  2. Where the offence has been committed outside the territory of the Requesting Party, extradition shall be granted where the law of the Requested Party provides for the punishment of an offence committed outside its territory in similar circumstances. Where the law of the Requested Party does not so provide, the Requested Party may, in its discretion, grant extradition.
  3. If the request for extradition refers to several offences, each of which is punishable under the laws of both Parties, but some of which do not fulfil the other conditions set out in paragraphs l and 2 of this Article, extradition may be granted for the offences provided that the person is to be extradited for at least one extraditable offence.

Article 3

  1. Refusal of Extradition.
  2. Extradition shall not be granted in any of the following circumstances:
  3. a) The person whose extradition is requested is a citizen of Requested Party;
  4. b) The person whose extradition is requested cannot be prosecuted or does not have to serve the sentence imposed due to lapse of the statute of limitations;
  5. c) The person whose extradition is requested for prosecution has been convicted under a final judgement by a competent court for the conduct to which the request relates or the case has been suspended according to the criminal procedural law of Requested Party; or
  6. d) Where the request for extradition relates to more than one offenses and each of which is punishable under the law of the Requesting State but does not fall under Article 2 of this Treaty.
  7. Extradition shall not be granted, if the Requested State considers that, having regard to all the circumstances, including the trivial of the nature of the offence, or in the interest of justice, it would be unjust or inexpedient to extradite the person.
  8. Extradition shall not be granted if the offence in respect of which it is requested is a military offence.

Article 4

  1. The Political Offence Exception.
  2. Extradition shall not be refused if the offence of which it is requested is an offence of a political character.
  3. For the purpose of this Treaty the following offences shall not be regarded as offences of a political character:

(a) an offence in respect of which the both Contracting States have the obligation to extradite or submit the case to their competent authorities for prosecution, by reason of a multilateral international treaty/convention to which both are parties or may become parties in future;

(b) the taking or attempted taking of the life or an assault on the person of a Head of State or Head of Government of one of the Contracting States, or of member of the Head of State's of Head of Government's family;

(c) murder or culpable homicide/ manslaughter;

(d) an offence, involving firearms, explosives, incendiaries, destructive devices or substances, causing death, grievous bodily harm or serious damage to property;

(e) a conspiracy or attempt to commit, or participation in, any of the foregoing offences;

(f) offences related to terrorism which at the time of the request is, under the law of the Contracting State, not to be regarded as political offence;

(g) kidnapping, abduction, false imprisonment or unlawful detention, including the taking of a hostage.

Article 5

  1. Postponement of Extradition.
  2. When the person sought is being investigated, prosecuted or has been tried or is serving a sentence in the Requested Party for an offence other than that for which extradition is requested, the Requested Party may postpone the extradition of the person sought until the conclusion of the proceeding or the service of the whole or any part of the sentence imposed. The Requested Party shall inform the Requesting Party of any postponement. When the conditions of the postponement no longer exist, the Requested Party shall promptly inform the Requesting Party and resume the process for extradition unless otherwise informed by the Requesting Party.
  3. When the postponement of extradition referred to in the paragraph l would bar the criminal proceedings due to the lapse of time or create a serious difficulty for the proceedings, the Requested Party may, at the request of the Requesting Party and pursuant to its laws, grant temporary extradition of the person whose extradition is sought.
  4. The person whose temporary extradition is granted shall be returned as soon as the criminal proceedings are completed or the mutually agreed time permitted for the request for temporary extradition is ended. The Requested Party may extend, upon request, the initial agreed time period if it deems that reasonable grounds for such extension exist.

Article 6

  1. Extradition of Nationals.
  2. Neither of the Parties shall be bound to extradite its own nationals under this Treaty.
  3. If extradition is refused solely on the basis of the nationality of the person sought, the Requested Party shall, at the request of the Requesting Party, submit the case to its authorities for prosecution.
  4. Nationality shall be determined at the time of the commission of the offence for which extradition is requested.

Article 7

  1. Extradition Procedures.
  2. The request for extradition under this Treaty shall be made through the diplomatic channel.
  3. The request shall be accompanied by:

(a) as accurate a description as possible of the person sought, together with any other information which would help to establish his identity, nationality and residence;

(b) a statement of the facts of the offence for which extradition is requested, and

(c) the text, if any, of the law :

(i) defining that offence; and

(ii) prescribing the maximum punishment for that offence.

  1. If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the Requesting State and by such evidence as, according to the law of the Requested State, would justify his committal for trial if the offence had been committed in the territory of the Requested State, including evidence that the person requested is the person to whom the warrant of arrest refers.
  2. If the request relates to a person already convicted and sentenced, it shall also be accompanied:

(a) by a certificate of the conviction and sentence;

(b) by a statement that the judgement is final and no further proceedings are pending and showing how much of the sentence has not been carried out.

  1. Documents, in support of an extradition request, shall be received and admitted as evidence in extradition proceedings, provided the documents are certified by a judge or magistrate to be the original documents or true copies of such documents and are authenticated by the official seal of the court or by the competent authority.
  2. In relation to a convicted person who was not present at his/her trial, the person shall be treated for the purposes of paragraph (4) of this Article as if he/she had been accused of the offence of which he/she was convicted.
  3. If the Requested State considers that the evidence produced or information supplied for the purposes of this Treaty is not sufficient in order to enable a decision to be taken as to the request, additional evidence or information shall be submitted within such time as the Requested State shall require.

Article 8

  1. Supplementary Information.
  2. If the Requested Party considers that the information furnished in support of a request for extradition is not sufficient in accordance with this Treaty to enable extradition to be granted, that Party may request that supplementary information be furnished within such time as it may specify.
  3. If the person whose extradition is sought is under arrest and the supplementary information furnished is not sufficient in accordance with this Treaty or is not received within the time specified, the person may be released from custody. Such release shall not preclude the Requesting Party from making a new request for the extradition of the person.
  4. When the person is released from custody in accordance with paragraph 2, the Requested Party shall notify the Requesting Party as soon as practicable.

Article 9

  1. Provisional Arrest.
  2. In case of urgency, Requesting Party may request the provisional arrest of the person sought pending the presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Ministry of Public Security of the Socialist Republic of Vietnam and Ministry of External Affairs of the Republic of India.
  3. The application for provisional arrest shall be in writing and contain:-

(a) a description of the person sought, including information concerning the person's nationality;

(b) the location of the person sought, if known;

(c) a brief statement of the facts of the case, including, if possible, the time and location of the offence;

(d) a description of the laws violated;

(e) a statement of the existence of a warrant of arrest or detention, or a finding of guilt or judgement of conviction against the person sought; and

(f) a statement that a request for extradition for the person sought will follow.

  1. On receipt of such an application, the Requested Party shall take the necessary steps to secure the arrest of the person sought and the Requesting Party shall be promptly notified of the result.
  2. The person arrested shall be set at liberty if the Requesting Party fails to present the request for extradition, accompanied by the documents specified in Article 7, within sixty (60) days from the date of arrest, provided that this shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.

Article 10

  1. Simplified Extradition.

If the person sought consents to surrender to the Requesting State, the Requested State may, subject to its laws, surrender the person as expeditiously as possible without further proceedings.

Article 11

  1. Concurrent Requests.
  2. Where requests are received from two or more States for the extradition of the same person either for the same offence or for different offences, the Requested Party shall determine to which of those States the person is to be extradited and shall notify those States of its decision.
  3. In determining to which State a person is to be extradited, the Requested Party shall consider all relevant factors, including but not limited to:-

(a) the nationality and the ordinary place of residence of the person sought;

(b) whether the requests were made pursuant to treaty;

(c) the time and place where each offence was committed;

(d) the respective interests of the Requesting States;

(e) the gravity of the offences;

(f) the nationality of the victim;

(g) the possibility of further extradition between the Requesting States; and

(h) the respective dates of the requests.

Article 12

  1. Surrender.
  2. The Requested Party shall, as soon as a decision on the request for extradition has been made, communicate that decision to the Requesting Party through the diplomatic channel. Reasons shall be given for refusal of a request for extradition.
  3. The Requested Party shall surrender the person sought to the competent authorities of the Requesting Party at a location in the territory of the Requested Party acceptable to both Parties.
  4. The Requesting Party shall remove the person from the territory of the Requested Party within such reasonable period as the Requested Party specifies and, if the person is not removed within that period, the Requested Party may set that person at liberty and may refuse extradition for the same offence.
  5. If circumstances beyond its control prevent a Party from surrendering or removing the person to be extradited, it shall notify the other Party, and in this case the provisions of paragraph 3 of this Article shall not apply. The Parties shall mutually decide upon a new date of surrender or removal, which shall not be later than 60 days from the date of the decision.

Article 13

  1. Re-extradition.

Where the person extradited has absconded the criminal proceeding against him and returned to the territory of the Requested Party, the Requesting Party may submit a request for re-extradition of that person.

Article 14

  1. Seizure and Surrender of Property.
  2. The Requested State may seize and surrender to the Requesting State, all articles, documents, and evidence connected with the offence in respect of which extradition is granted.
  3. The Requested State, if so requested, may surrender the articles to the Requesting State even if the extradition cannot be carried out owing to the death, disappearance or escape of the person sought.
  4. Where the law of the Requested State to the protection of rights of third parties so requires, any property so surrendered shall be returned to Requested State as soon as practicable and free of charge.

Article 15

  1. Rule of Specialty.
  2. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:

(a) the offence for which extradition has been granted or a differently denominated offence based on the same facts, on which extradition granted, provided such offence is extraditable or is a lesser included offence;

(b) an offence in respect of which he/she was extradited, or another offence in respect of which he/she could be convicted based on the proven facts used to support the request for his/her extradition; or

(c) an offence for which the executive authority of the Requested State consents to the person's detention, trial, or punishment for an offence. For the purpose of this subparagraph:

(i) the Requested State may require to submit the documents called for in Article 7;

(ii) a copy of the statement, if any, made by the extradited person with the request of the offence shall be submitted to the Requested State; and

(iii) the person extradited may be detained by the Requesting State for such period of time as the Requested State may authorize, while the request is being processed.

  1. A person extradited under this Treaty may not be extradited to a third State for an offence committed prior to his/ her extradition unless the Requested State consents.
  2. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person or the extradition of that person to a third State, if;

(a) that person leaves the territory of the Requested State after extradition and voluntarily returns to it; or

(b) that person does not leave the territory of the Requested State within 60 days of the day on which that person is free to leave.

Article 16

  1. Notification of the Results.

The Requesting Party shall timely notify the Requested Party of the information relating to the proceeding against or the execution of punishment upon the person extradited or the re-extradition of that person to a third State.

Article 17

  1. Transit.
  2. To the extent permitted by its law, transportation of a person surrendered to one Party by a third State through the territory of the other Party shall be authorized on request in writing made through the Central Authorities.
  3. Authorization for transit shall not be required when air transport is to be used and no landing is scheduled in the territory of the Party of transit. If an unscheduled landing occurs in the territory of that Party, it may require the other Party to furnish a request for transit as provided in paragraph 1 of this Article. That Contracting State shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 4 (four) days (96 hours) of the unscheduled landing.

Article 18

  1. Costs.
  2. The Requested Party shall meet the cost of any proceedings in its jurisdiction arising out of a request for extradition.
  3. The Requested Party shall bear the cost incurred in its territory in connection with the arrest and detention of the person whose extradition is sought, or the seizure and surrender of property.
  4. The Requesting Party shall bear the cost incurred in conveying the person whose extradition is granted from the territory of the Requested Party and the cost of transit.

Article 19

  1. Central Authorities.

For the purpose of this Treaty, the Requesting States shall communicate through their Central Authorities. The Central Authorities for the Republic of India shall be the Ministry of External Affairs and for the Socialist Republic of Vietnam shall be Ministry of Public Security.

Article 20

  1. Consultation.
  2. The Parties shall consult, at the request of either Party, concerning the interpretation and the application of this Treaty.
  3. The Ministry of Public Security of the Socialist Republic of Vietnam and Ministry of External Affairs of the Republic of India may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of this Treaty.

Article 21

  1. Obligations under International Conventions/ Treaties.

The present Treaty shall not affect the rights and obligations of the Requesting State arising from International Conventions/Treaties to which they are parties.

Article 22

  1. Entry into Force and Termination.
  2. This Treaty is subject to ratification. This Treaty shall enter into force upon the exchange of the instruments of ratification.
  3. Either Party may terminate this Treaty by notice in writing at any time. Termination shall take effect six (6) months after the date on which the notice is given.

In Witness Whereof, the undersigned, being duly authorized by their respective Governments have signed this Treaty.

Done in duplicate at New Delhi on the 12th day of October, 2011 in the Hindi, Vietnamese and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.

For and on behalf of
The Republic of India The Socialist Republic
of Vietnam