To learn more I looked into a case I came across that had a fair amount of publicity and was resolved fairly recently. It concerned a crime committed in the United States, an alleged criminal with dual U.S./French citizenship who fled to French territory.
In 2007 Hans Peterson turned himself in to French authorities in St. Martin, Guadeloupe (a French territory in what is called DOM-TOM). A warrant for Peterson's arrest had been issued in the United States concerning the 2006 death of an American doctor, David Cornbleet, in Chicago. Peterson was alleged to have tortured and killed him - a very violent crime indeed.
The U.S. authorities requested his extradition and they were refused. Why? Because the French determined that Peterson was a French citizen and, in the words of a spokesman from the French embassy, France does not extradite its own citizens to face trial in other countries no matter what the penalty and that this is a matter of French law:
“It’s not a decision by our government, it’s just a legal provision in our law,” he said. “We can’t do it. We’ve never done it.”
So what about that extradition treaty that exists between the U.S. and France? Read the fine print. It says in Article 3:
"1. There is no obligation upon the Requested State to grant the extradition of a person
who is a national of the Requested State, but the executive authority of the United States
shall have the power to surrender a national of the United States if, in its discretion, it deems
it proper to do so. The nationality of the person sought shall be the nationality of that person
at the time the offense was committed."
Or as IntLawGrrls puts it, this treaty is based on a template that includes certain standard stuff:
"...a pledge of mutual obligation to extradite fugitives in certain serious criminal matters; detailed procedures for such transfers; and exceptions from extradition, for certain offenses of a political nature, and for capital offenses absent assurances that the fugitive will not be subjected to the death penalty if convicted.
But it also says that neither country is under any obligation to surrender its own nationals. The U.S. could do it if they wished. France says they couldn't do it even if they wanted to. Interesting.
Does that mean that French citizens (or dual U.S./French citizens) can escape justice if they flee to French territory?
No, it just means that France will try that citizen in her own courts on her own territory. That is exactly happened to Peterson. He was tried in France, convicted and originally given a sentence of life in prison. On appeal in 2012 the Cour d'assises de Paris reduced this to 30 years: 20 years in prison and 10 on parole.
These are the kinds of situations that cause tensions between countries. For some Americans, it may seem that Peterson got away with murder which is not true. He was simply judged under his other country of citizenship that convicted him and applied penalties under her own law. Had he been tried in the U.S. would it have gone differently? Hard to know what a U.S. court would have said. Peterson is clearly mentally unstable and who knows what defense his lawyers would have used. What he avoided completely was any risk that he would be tried and sentenced to execution for his crime since France abolished the death penalty in 1981. Interesting enough so did the state of Illinois in 2011. So he would not have faced that penalty in any case.
As for the U.S. government's reaction, when France informed the U.S. that they would not turn him over, the U.S. senators from the state of Illinois got involved and wrote to the French asking that they reconsider. A delicate diplomatic situation. In the end, of course, it didn't happen and hard to see what the U.S. could do about it under the circumstances.
There you have it - an interesting example of how treaties, dueling sovereignties and conflicts of domestic laws lead to a particular outcome when it comes to dual nationals and extradition.
There is a convention of dual nationals (The Vienna Convention?) to deal with who duals will be treated when arrested. Essential, when duals are arrested there is something known as the Master Nationality Rule. This means if you are a citizen of Canada and the United States, and you do something to get arrested in the States, Canada cannot provide consular assistance to you because you are considered only an American by the United States.
Another interesting example is the case of Samuel Sheinbein. In this case a deranged Jewish kid killed someone in the United States and then fled to Israel. As a result of Israel's law of return he was immediately granted citizenship of that country and Israel refused to extradite him. Israel then put him on trial and he is now in jail in that country. Interestingly, at the time Israeli law was similar to French law in that its citizens could not be extradited. This case caused such an outrage that Israel changed the law so that an Israeli (or in this case any Jewish person who makes it to Israel) can be extradited if they have no previous residential ties to Israel.
In contrast to the nuances of the arrangement between the US and France, here is Article 3 of the US/UK extradition treaty:
"ARTICLE 3, Nationality. Extradition shall not be refused based on the nationality of the person sought."
That's all of it. No protection in this article for anyone, dual citizen or not.
@Jordan, Interesting. I think the convention is this one : the Vienna Convention on Consular Relations. The US has a very bad track record in respecting this one. This is a matter of some concern to us Americans abroad because if the US doesn't play nice with other countries' citizens then why should they expect other countries to play nice with Americans abroad.
@anonymous, In response to your comment I went looking for more information and found this up on the London US Embassy website.
They give some stats about how many extradition requests have been submitted and how many are pending or have been denied.
"Under this treaty, 130 extradition REQUESTS have been submitted from the U.S. to the UK. Of those 130 requests, the UK has refused 10. Of the remaining 120, 77 individuals have actually been extradited from the UK to the U.S."
I'd be very interested in knowing why the UK denied some of those requests. As you point out it can't be nationality so there must be other reasons.
Regarding UK extridition practice, I think the refusals all depend on the issues at hand, and appear to be considered individually.
The most recent high publicity case, is that of Gary McKinnon, a computer hacker wanted in the United States.
I have been watching that one for years, as an indication of the endless vindictive nature of the American justice system. They can be pretty dogged in their pursuit of you.
I am pretty sure Mr Dotcom, in New Zealand will be another one of those types of ongoing fights. It is an interesting one to follow regardless of your sympathies or apathy on the subject.
On a side note, if you are a U.S. Person long resident in France, and thumbing your nose at FBAR and FATCA compliance, maybe that French Citizenship will serve you well? :)
They could be a big US-UK-France extradition love triangle about to break. Unfortionately for the US Justice Department it just leaked out that they were trying to arrest two French citizens living in the UK however, both individuals are right now in France on vacation so they probably won't be going back to the UK any time soon. The UK could probably use the European Arrest Warrant to get them back but would have to assure Paris that they won't be sent onwards to the US. Big screwup for the US Justice Department and FBI.
Tim, that sounds very VERY interesting. Do you have a link?
U.S. prosecutors urged former London-based JPMorgan Chase & Co. (JPM) traders Javier Martin-Artajo and Julien Grout to surrender and face charges that they attempted to hide trading losses tied to the bank’s $6.2 billion loss on derivatives bets last year.
Martin-Artajo, a Spanish citizen, andGrout, a French citizen, should “do the right thing,” Manhattan U.S. Attorney Preet Bharara said at a press conference yesterday. Both men face as long as 20 years in prison if convicted of the most serious counts, including conspiracy and wire fraud.
While Bharara said he was “hopeful” they would return, he had arrest warrants filed under seal along with criminal complaints Aug. 9, according to court records. The warrants were to be served on the State Department, Interpol and foreign law enforcement agencies. The next day, police showed up at Grout’s London home, according to a person with knowledge of the matter. Grout wasn’t there. His lawyers have said he’s in France.
The defendants could force a drawn-out extradition battle if they choose to fight efforts to bring them to the U.S.
Attorneys for Martin-Artajo and Grout declined to comment. Jonathan New, a lawyer for Iksil, said in a statement the U.S. declined to charge his client and that he is cooperating.
Martin-Artajo, 49, and Grout, 35, face four counts: conspiracy to falsify books and records, commit wire fraud and falsify securities filings; falsifying books and records; wire fraud; and making false filings to the SEC.
“It seems the prosecutors have gone after the low-hanging fruit in terms of the charges,” said Andrew Stoltmann, a lawyer in Chicago who represents investors in securities litigation. He said “a compelling argument” could be made for charging JPMorgan or its senior executives “who misled investors on the size and scope of the losses.”
The age and nationality of the defendant, the severity of the charge and the type of punishment that’s expected all factor into a decision to extradite, said Robert J. Anello, a white collar criminal defense lawyer with Morvillo Abramowitz Grand Iason & Anello PC in New York.
“While it is more difficult to get an extradition from France than from the U.K., it is not impossible,” Anello said.
And more here:
U.S. authorities on Wednesday filed charges against Julien Grout for crimes related to the scandal, including wire fraud, conspiracy and the falsifying of books and records.
But in sun-drenched Sarrazac, a village of two dozen stone houses built around a medieval church in southern France, the affair had barely registered before this week.
In his parents' picturesque holiday home, with slate roof, mown grass and an old Citroen car outside, former JPMorgan Chase & Co junior trader Grout is keeping a low profile and settling in with his wife and two daughters.
French national Grout was indicted along with Javier Martin-Artajo, who worked in London as the direct supervisor of Bruno Iksil, the trader who became known as "the London Whale" in the JPMorgan scandal in which bad derivatives bets ended up costing the largest U.S. bank more than $6.2 billion.
"He has just arrived, he seems to be a very nice guy," said Sarrazac mayor Habib Fenni, who met Grout a day earlier and was not aware of JPMorgan's troubles or the role the French village's new resident is alleged to have played in them.
Village restaurant owner Chantal Guerby, meanwhile, described Grout as "a nice guy who keeps himself to himself".
Neighbors said that Grout's parents have been coming to their holiday home for many years, with Grout also visiting from London once in a while.
Given Grout was such a "low level" employee there will almost certainly be a huge fight in France if their is a serious push for extradition. The one thing you can always count on the French people for is they always instinctively side with the little guy especially if he is French.
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