Consent to further prosecution following extradition found to breach International Covenant on Civil and Political Rights

The United Nations Human Rights Committee has ruled in Saxena v. Canada (Communication no. 2118/2011, 3 November 2016) that the consent by Canada to the prosecution of Mr Rakesh Saxena for two offences after his extradition to Thailand to face criminal charges for conspiracy to embezzle money from the Bangkok Bank of Commerce had resulted in a violation of Article 13 of the International Covenant on Civil and Political Rights. Article 13 requires that any alien lawfully present in a State Party’s territory be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Mr Saxena had been extradited to face criminal charges for conspiracy to embezzle money from the Bangkok Bank of Commerce but the two offences to which Canada subsequently gave its consent to his prosecution had not been listed in the original extradition request and surrender order.

The finding of a violation of Article 13 arose from the fact that Mr Saxena had been deprived of the possibility to comment on the request to waive the specialty rule and that the possibility for him to seek a review of such request by the courts had been foreclosed.In reaching this conclusion the Committee noted that:

• during the extradition proceedings, Mr Saxena had raised concerns that he could be charged, prosecuted and tried for offences other than those for which he was surrendered;
• Canada had not denied that it would not have granted the waiver of specialty had it known that he would be charged for other offences committed prior to issuing the extradition order which had not been covered by the surrender order;
• the waiver was granted notwithstanding the repeated and emphatic assurances by Canada’s judicial and administrative authorities that there would be no breach of the specialty rule, i.e. that Mr Saxena would not be tried in Thailand for offences other than those for which he was extradited;
• Mr Saxena had not been given the opportunity to challenge the decision on granting consent to the waiver of specialty, thereby depriving him of the due process guarantees he was entitled to in compliance with Article 13 of the Covenant, and that, as a consequence of the procedure, he might have been exposed to a much longer detention and imprisonment; and
• during the proceedings related to the request by Thailand for granting consent to a waiver of specialty Mr Saxena had remained within the jurisdiction of Canada.

In the view of the Committee, Canada was now obliged, inter alia, to revise and amend its extradition legislation by including a procedure for consent to a waiver of specialty, in full compliance with its obligations under the Covenant and the finding in this case.

Mr Saxena was represented before the Committee by Jeremy McBride.

To view the Committee’s Views, please click here.