Can a country refuse to deliver a person accused of attempted murder?

Question

In 2023 in Hungary, masked antifa members injured participants of a right-wing demonstration, some of them seriously. The attack happened with metal rods, rubber mallets and pepper spray.

The Hungarian authorities have charged the antifa members with attempted murder and the formation of a criminal organization. The authorities argue that several of the attacks in Budapest were so serious that they could have killed people.

The right-wing demonstration is a yearly event that started in 1997 and officially commemorates a battle of the Second World War in Budapest where thousands of German and Hungarian troops were killed. Regarding some newspapers, it is a meeting point of right-wing extremists from all over Europe. It should also, until now, have been a non-violent memorial march. But now the most extreme political contrasts between antifa and fascists have come together, and the violence came mostly from antifa. The antifa gathers there there to actively fight their right-wing opponents at their event.

One of the suspected 2023 antifa attackers was a German non-binary person, who was arrested in Germany and after a decision by the Berlin Department of Justice was delivered by helicopter to Hungary. The very fast delivery was justified by announced protest actions of the German antifa.

After they were brought to Hungary, a German court decided not to hand them over to Hungary. The delivery was heavy criticized by the left party and the green party.

There has also been a trial in Hungary against the Italian teacher and antifa activist Ilaria Salis because of community-aggravated assault. The Italian left party and green party made her a candidate for the European election, to get her out of Hungarian prison via the immunity of the office. Her trial was criticized by the political left for allegedly not giving her a fair trial. She was officially elected to the EU Parliament and now enjoys immunity.

Please consider before writing: I want to see and describe all this in a neutral, reasonable and "free-of-ideology" point of view. I am neither antifa nor right-wing!

My question is:

Is it legitimate for states like Germany to refuse to hand over persons who are suspected of committing assault, with the justification that Hungary does not give them a 'fair' court case?

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Links: https://www.tagesspiegel.de/internationales/prozess-in-budapest-dreifach-gefesselt-vor-gericht--italien-ist-schockiert-11153002.html

https://www.faz.net/aktuell/politik/ausland/ungarn-hafterleichterung-fuer-italienerin-ilaria-salis-19723910.html

https://taz.de/Auslieferung-von-Maja-T/!6018171/

https://taz.de/Nach-Angriffen-auf-Rechte-in-Budapest/!5999602/

https://www.tagesspiegel.de/internationales/italienerin-in-eu-parlament-gewahlt-in-ungarn-angeklagte-antifa-aktivistin-geniesst-nun-immunitat-11797784.html

Answer 1

european-union council-of-europe

Can it be "legitimate" for a state to refuse to hand over an individual to a requesting state? It depends on what is meant by "legitimate".

Can it be "legal" for a state to refuse to hand over an individual to a requesting state? Sometimes, yes - it depends on the circumstances, particularly in cases of so-called human rights exceptions, in which the extradition request must be refused.

For example:

with the justification that Hungaria does not give them a 'fair' court case ?

If the German court hearing the extradition request is persuaded that there is a real risk there will be a "flagrant denial of a fair trial" (or "flagrant denial of justice") in the requesting country (Hungary) then the German court must deny the extradition request. This principle was established by the European Court of Human Rights in Soering v The United Kingdom (1989) although it took more than twenty years for the court to find for the first time that a specific extradition would violate this principle (in Othman (Abu Qatada) v. the United Kingdom (2012)).

If you agree everyone has the right to fair trial, that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law," (Article 6, European Convention on Human Rights), then it seems to follow that normally we should protect people from being subjected to unfair trials, whatever the crime they are accused of committing.

However, it's not necessarily easy to persuade a court that a person will suffer or risk suffering a "flagrant denial of a fair trial" (it depends on the requesting country and the circumstances) and a requesting country might be able to persuade the court (e.g. with formal assurances) that this person will receive a fair trial.

As commenters and other answers have rightly pointed out, some countries have constitutions or other laws that limit or completely outlaw the extradition of their own citizens/nationals. See for examples the non-exhaustive list at the Wikipedia article on extradition linked to by Stuart F in comments. In such cases the country might agree to try the citizen/national itself.

Answer 2

Yes, and even for no reason at all.

As an example, France never extradites its citizens, it is forbidden by law:

L'extradition n'est pas accordée :

1° Lorsque la personne réclamée a la nationalité française, cette dernière étant appréciée à l'époque de l'infraction pour laquelle l'extradition est requise ;

Extradition is denied:

1° If the claimed person has French citizenship, and had citizenship at the time of the infraction for which extradition is claimed.

https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006577394

Answer 3

Yes. For example, Australia will not extradite a person who could be liable to the death penalty if extradited.

Answer 4

Even between countries with extradition treaties where these things are done all the time, a country can evidently not pass someone over in some circumstances.

Anne Sacoolas hit and killed a UK teenager, Harry Dunn in August 2019. She fled to the US and has remained there ever since, being sentenced in-absentia.

The USA has refused to extradite her to the UK to serve justice as they claim diplomatic immunity. Sacoolas was not a diplomat, but the wife of a former diplomat, so this seems a weak argument.

But to answer your question, if the USA will not deliver a convicted killer, despite neither country denying the crime took place, then countries can surely refuse in cases where nobody was killed and the person is only accused of crimes.

Answer 5

In some cases, Article 33 of the Portuguese Constitution (English version) does not permit extradition.

Article 33
(Deportation, extradition and right of asylum)
1 - The deportation of Portuguese citizens from Portuguese territory is not permitted.
[...]
6 - The extradition or handing over of a person under any circumstances for political reasons, or for crimes which are punishable under the applicant state’s law by death or by any other sentence that results in irreversible damage to physical integrity, is not permitted.

However, there was a case with media coverage where article 33.6 was at stake, the requesting country, India, guaranteed Portuguese authorities it would not apply a death or life imprisonment sentence but forgot those guarantees as soon as the suspect was in India's custody.
Gangster and terrorist Abu Salem was arrested in Portugal for crimes committed in India and after a legal battle extradited to India where he was tried and convicted to life imprisonment.

From the Constitutional Court rule, my emphasis:

In conclusion, and regarding the substantive issue, the Constitutional Court did not consider it unconstitutional to interpret the provision made in Article 9.3 of the International Convention for the Suppression of Terrorist Bombings (New York Convention of 1998) in the sense that Portugal was obliged to extradite the appellant to the Indian Union for crimes contemplated in Article 2 thereof and carrying a nominally prescribed death sentence, given that the execution of the sentence was a legal impossibility pursuant to Section 34-C of the Indian Extradition Act. The same could be said of crimes punishable by a nominally prescribed sentence of life imprisonment, given that the obligation to extradite was subject to the rule of reciprocity laid down by an international convention also subscribed to by Portugal, and that the requesting State had offered a legally and internationally binding guarantee that a prison sentence exceeding 25 years would not be imposed.

Answer 6

The usual rules are: You must have done something that would be a crime in the extraditing country (if the roles of both countries were exactly swapped). There must be enough evidence, not for a conviction, but to put the person in court. There must be a guarantee for a fair trial. There must be no cruel or unusual punishment (Germany would not extradite a thief who is 100% guilty, and guaranteed to get a fair trial, if the punishment was cutting off a hand). The person who is extradited must not be taken to court for any other matter and must be free to leave the country after serving any sentence And finally, it must not be a trivial matter where having to go to court in a foreign country is more punishment than whatever punishment you would get in court.

So there is no extradition if what happened would not be "attempted murder" or any other serious crime in the extraditing country, or if there is no real evidence, or if the punishment for attempted murder is a death sentence, and any of the other reasons.