Case Summary
| Citation | Abu Salem Abdul Qayoom Ansari v. State of Maharashtra (2010) |
| Keywords | state jurisdiction, escape |
| Facts | Abu Salem, along with his girl-friend Monica Bedi, was extradited to India in 2005 from Portugal, after the Indian government gave a solemn assurance before the Portuguese court that if convicted, they would not be sentenced to death. The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in vogue.Abu Salem was accused of Mumbai blasts of 1993 and was trailed by the CBI from the UnitedStates to Portugal. As there was no extradition treaty between India and Portugal, politicalconsiderations played a major role in extradition.Indian government sought his extradition under the United Nations Convention on Suppressionof Terrorism of 2000 under which all member-nations have to help each other in the war againstterrorism. Portugal and India are both signatories to the Convention. |
| Issues | Whether the Indian courts have jurisdiction to try Abu Salem for offences not mentioned in the ex-tradition decree? Whether the Rule of Speciality has been violated? |
| Contentions | |
| Law Points | The term ‘extradition’ denotes the process whereby under a concluded treaty one State surrenders to any other State at its request, a person accused or convicted of a criminal offence committed against the laws of the requesting State, such requesting State being competent to try the alleged offender.Though extradition is granted in implementation of the international commitment of the State, the procedure to be followed by the courts in deciding, whether extradition should be granted and on what terms, is determined by the municipal law of the land.Extradition is founded on the broad principle that it is in the interest of civilized communities that criminals should not go unpunished and on that account it is recognized as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice.The doctrine of speciality is recognised in section 21 of the Indian Extradition Act of 1962. The speciality doctrine is a universally recognised principle of international law and partakes of doctrines of both double criminality and reciprocity.Extradition is different from deportation by which competent State authorities order a person to leave a country and prevent him from returning to the same territory. |
| Judgement | Thus, deportation basically is a non-consensual exercise whereas extradition is based on a consensual treaty obligation between the requesting State and the requested State. Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can do so even by exercise of executive discretion. |
| Ratio Decidendi & Case Authority |
Full Case Details
JUDGMENT
P. Sathasivam, J.
1) The appeals and the writ petition raised a common question, as such were heard
together and are being disposed of by this common judgment. The grievance of the appellantAbu Salem Abdul Qayoom Ansari in the appeals and writ petition is that the criminal courts
in the country have no jurisdiction to try in respect of offences which do not form part of the
extradition judgment, by virtue of which he has been brought to this country and he can be
tried only for the offences mentioned in the extradition decree.
2) Criminal Appeal No. 990 of 2006, filed under Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA
Act"), arose out of framing of charge on 18.03.2006 against the appellant by the
Designated Court at Arthur Road Jail, Mumbai in RC No.1(S/93)/CBI/STF known as
Bombay Bomb Blast Case No. 1 of 1993 and the order dated 13.06.2006 passed by the said
Court separating the trial of the accused/appellant from the main trial in the Bombay Bomb
Blast Case.
3) The appellant filed Criminal Appeal Nos. 1142-1143 of 2007 against the order dated
16.04.2007 by the same Designated Court, framing charges against him under Sections 120B,
302, 307, 387, 382 IPC and under Sections 3(2)(i), 3(2)(ii), 3(3), 3(5) and 5 of the TADA Act.
4) In addition to filing of the above said appeals, the appellant has also filed Writ
Petition (Crl.) No. 171 of 2006 under Article 32 of the Constitution of India seeking a) to
issue a writ of Certiorari to quash the charges framed against him in Bombay Bomb Blast
Case No. 1 of 1993 arising out of RC No. 1 (S/93)/CBI/STF by framing of charge on
178
18.03.2006; b) to issue a writ of Certiorari to quash the order passed by the Designated Court
under TADA Act dated 13.06.2006 passed in Misc. Application No. 144 of 2006; c) issue a
writ of Certiorari to declare that the charges framed on 18.03.2006, in Bombay Bomb Blast
Case No. 1 of 1993, as violative of the Rule of Speciality and Section 21 of the Extradition
Act, 1962; (d) issue a writ of Mandamus to release and discharge the writ petitioner by
quashing all the proceedings against him; (e) issue a writ of Prohibition prohibiting the
respondents from prosecuting the writ petitioner any further for the offences for which the
petitioner has not been extradited by the Court of Appeals at Lisbon as affirmed by the order
of the Supreme Court of Portugal; f) issue a writ of Prohibition prohibiting the Designated
Court at Arthur Road Jail at Mumbai from separating the trial of the writ petitioner from the
other accused whose trial is stated to have been completed.
5) Facts of the Case:
a) On 12.03.1993, there were a series of bomb explosions in the Mumbai City which
resulted in death of 257 persons, injuries of various types to 713 persons and destruction of
properties worth more than Rs. 27 crores (approximately). These bomb explosions were
caused at vital Government installations, public places and crowded places in the city and its
suburbs with an intention to overawe the Government established by law, and to strike terror
among the public at large and also to adversely affect the peace and harmony among different
sections of the people. Twenty-seven criminal cases were registered at respective Police
Stations with regard to the said bomb explosions and subsequent recovery of arms, 4
ammunitions and explosives, which were illegally smuggled into the country with the
intention to commit the said terrorist acts. On completion of investigation, it was disclosed
that various acts committed by the accused persons were out of a single conspiracy and,
therefore, a single charge-sheet was filed in the specially created Designated Court, Mumbai,
against 189 accused persons including 44 absconders on 04.11.1993 for offences punishable
under Section 120B read with Sections 324, 326, 427, 435, 121, 121-A, 122, 307, 302 and
201 of the Indian Penal Code read with Sections 3, 4 and 5 of the TADA Act read with
Sections 3, 7(a), 25(1A), 25(1AA), 26, 29, 35 of the Arms Act, 1959 read with Sections 3, 4,
5 and 6 of the Explosive Substances Act, 1908. The appellant-Abu Salem was one of the
absconders mentioned in the charge-sheet.
b) The investigation disclosed that the appellant-Abu Salem and other accused persons
hatched a criminal conspiracy during the period December, 1992 to April, 5 1993 with an
object to create disturbances of serious nature by committing terrorist acts by bomb
explosions, murders and causing destruction of properties throughout India. In pursuance of
the said criminal conspiracy, a large quantity of arms like AK-56 rifles, pistols, handgrenades, ammunitions and RDX explosives were illegally smuggled into the country through
sea at Dighi Jetty and Shekhadi ports in Maharashtra State during January and February,
1993. These illegal arms and ammunitions were kept and stored at different places with
different persons with the object to commit terrorist acts. c) The appellant-Abu Salem was
entrusted with the task of transportation of illegally smuggled arms and ammunitions, their
179
storage and distribution to other co- accused persons. Investigation has disclosed that a
portion of arms and explosives, which were smuggled and brought illegally into India on
09.01.1993, were taken to the State of Gujarat and stored at Village Sansrod, Dist. Bharuch.
In the second week of January, 1993, on the 6 instructions of absconding accused, Anees
Ibrahim Kaskar, appellant-Abu Salem brought AK-56 rifles, their ammunitions and handgrenades from Village Sansrod to Mumbai and distributed the same among co-accused
persons.
d) On 12.03.1993, RDX filled vehicles and suit-cases were planted at strategic places
like Bombay Stock Exchange, Air India Building, Near Shiv Sena Bhawan, Plaza cinema and
thickly populated commercial places like Zaveri Bazar, Sheikh Memon Street etc. The suitcase bombs were also planted in the rooms of 3 five-star Hotels, namely, Hotel Sea Rock,
Bandra, Hotel Juhu Centaur and Airport Centaur, Mumbai. Explosions were caused from the
said vehicle-bombs and suit-case bombs in the afternoon of 12.03.1993 and within a period of
about two hours, large-scale deaths and destruction was caused, as described earlier. Handgrenades were also thrown at two places i.e. Sahar International Airport, Mumbai and 7
Fishermen Colony, Mahim, Mumbai. The explosions caused by hand-grenades also produced
similar results. e) During the course of investigation, a large quantity of arms, ammunitions
and explosives were recovered from the possession of accused persons. In India, AK-56
rifles, ammunitions and hand-grenades cannot be possessed by private individuals, as these
types of sophisticated arms and ammunitions can only be used by the armed forces and other
law enforcing agencies.
f) Since the appellant-Abu Salem absconded and could not be arrested during the course
of investigation, he was shown as an absconder in the charge-sheet. The Designated Court,
Mumbai, issued Proclamation No. 15777 of 1993 against him on 15.09.1993. As the accused
did not appear before the Court despite issuance of Proclamation, he was declared as a
Proclaimed Offender on 15.10.1993. The Designated Court, Mumbai issued Non-bailable
Warrant against appellant-Abu Salem and Interpol Secretariat General, Lyons, France also
issued a Red Corner Notice No. A-103/3-1995 for his arrest. g) During the course of trial, the
Designated Court, Mumbai, framed common charge of criminal conspiracy punishable under
Section 3(3) of the TADA Act and Section 120 B of the Indian Penal Code read with Sections
3(2)(i), (ii), 3(3), 3(4), 5 and 6 of the TADA Act read with Sections 302, 307, 326, 324, 427,
435, 436, 201 and 212 of the Indian Penal Code and offences under Sections 3 and 7 read
with Sections 25 (1A), (1B), (a) of the Arms Act, 1959, Sections 9-B(1), (a), (b), (c) of the
Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public Property Act, 1984 against all the
accused who were present before the Court, as also the accused who are absconding including
the appellant. The Designated Court, Mumbai, on 19.06.1995, ordered that the evidence of the
witnesses may be recorded against absconding accused persons in their absence in accordance
with the provisions of Section 299 Cr.P.C. h) On 18.09.2002, the appellant-Abu Salem was
detained by the Portugese Police at Lisbon on the basis of the above mentioned Red Corner
180
Notice. In December 2002, on receipt of the intimation about his detention in Lisbon, the
Government of India submitted a request for his extradition in 9 criminal cases (3 cases of
CBI, 2 cases of Mumbai Police and 4 cases of Delhi Police). The request was made relying on
the International Convention for the Suppression of Terrorist Bombings and on an assurance
of reciprocity as applicable in international law. Along with the requisition of extradition, the
relevant facts of the cases were enclosed in the form of duly sworn affidavits of the concerned
Police officers, together with other supporting documents. The letter of requisition was issued
under the signature of the then Minister of State for External Affairs and the affidavit-insupport was affirmed by Sr. Superintendent of Police, CBI/STF.
34. Now, it cannot be disputed that an offence under Section 365 IPC is a lesser offence
than the offence punishable under Section 364-A IPC. Since extradition of Suman Sood was
allowed for a crime punishable with higher offence (Section 364-A IPC), her prosecution and
trial for a lesser offence (Section 365 IPC) cannot be held to be without authority of law. The
contention, therefore, has no force and is hereby rejected." (Emphasis supplied) The
ratio in the Suman Sood (supra) is directly applicable to the case on hand.
27) The main grievance of the appellant, as stated above, is that he had been extradited
under International Convention for the Suppression of Terrorist Bombings and therefore, he
can be tried only for the offences which are related to the said Convention. The said
assumption cannot be sustained. If the said claim is accepted, it would be contrary to the
judgment of the Constitutional Court of Portugal and it also shows the ignorance of the
appellant towards the notification dated 13.12.2002, issued by the Government of India
making the Extradition Act, 1962 applicable to Government of Portugal except Chapter III.
As rightly pointed out by the respondents that the Court has not granted extradition merely on
the basis of Extradition Treaty but also on the basis of reciprocity. Pursuant to Section 3 of
the Act, the order of the Government of India GSR-822(E) dated 13.12.2002 had been
approved and published ensuring due regard for the principle of reciprocity. In view of the
same, the claim of the appellant is without any substance.
28) As discussed earlier, it is true that there is no Extradition Treaty between India and
Portugal. However, the laws of both the countries permit entertaining request for extradition
from Non Treaty States also. The extradition request was made to the Government of Portugal
by the Government of India under the provisions of the Extradition Act applicable to Non
Treaty States i.e. Section 19 of the Act. Although the Convention was also relied upon for the
extradition, as rightly pointed out by the respondent, it was not the sole basis as is apparent
from the Letter of Request. The primary consideration for the request of extradition was the
assurance of reciprocity. The notification dated 13.12.2002 by the Government of India
directing that the provisions contained in the Extradition Act shall be applicable to the
Republic of Portugal was issued keeping in view the said principle of reciprocity. For the
181
purpose of extradition proceedings, appellant-Abu Salem was treated as a fugitive criminal as
defined under Section 2(f) of the Extradition Act, 1962. We have already adverted to the
Gazette Notification dated 13.12.2002 making it clear that the provisions of Extradition Act
shall apply to Portuguese Republic in accordance with the principle of reciprocity. The
provisions of the Act are applicable in respect of the extradition of appellant-Abu Salem. The
Court of Appeals of Lisbon has recognized this principle of reciprocity and the applicability
of the provisions of the Extradition Act, 1962 to the Republic of Portugal. The Supreme Court
of Justice and Constitutional Court of Portugal have also approved it. None of these Courts
have mentioned in their orders that the accused could not be tried in India for the offences for
which his trial could take place as per the domestic laws of India.
29) We have already adverted to Section 21 of the Extradition Act. A bare reading of the
above section would indicate that the appellant-Abu Salem can be tried for the offences for
which he has been extradited. The Supreme Court of Justice, Portugal has granted extradition
of appellant-Abu Salem for all the offences mentioned in para-1 of the order dated
27.01.2005. In addition, Abu Salem can also be tried for lesser offence/offences in view of
Section 21 of the Extradition Act disclosed by the facts proved for the purposes of securing
his surrender. Lesser offence means an offence which is made out from the proved facts and
provides lesser punishment, as compared to the offences for which the fugitive has been
extradited. The offence has to be an extradition offence, as defined under Section 2 (c) (ii) of
the Act i.e. an offence punishable with imprisonment for a term which shall not be less than
one year under the laws of India or of a foreign State. The lesser offence cannot be equated
with the term minor offence; as mentioned in Section 222 of the Code of Criminal Procedure.
The Legislature has deliberately used the word lesser in Section 21(b) of the Extradition Act
instead of the word minor. Thus, the punishment provided for the offence is relevant and not
the ingredients for the purposes of interpretation of the term lesser offence. 30) The
contention of the appellant that he can be tried only for the offences covered under Article
2(1) of the said Convention is misconceived in view of the fact that he was extradited not only
under the said Convention but also in the light of the principle of reciprocity made applicable
through the application of the Extradition Act to the Republic of Portugal. A complete reading
of Article 2 of the said Convention makes it clear that it deals not only with those accused
who commit the substantive offences as defined in Article 2(1) but also includes all the
conspirators and those who have constructive liability for commission of the substantive
offences as per Sub-section 3 of Article 2 of the Convention, which fact has also been
mentioned by the Supreme Court of Justice, Portugal in para 9.4 of its order. Further subsection (d) of Article 1(3) of the Convention makes it abundantly clear that the explosive or
lethal device means a weapon or device i.e. designed, or has the capability to cause death,
serious bodily injury or substantial material damage through its release etc. AK-56 rifles are
the weapons/devices, which have the capability to cause death and serious bodily injury
through the release of cartridges and are covered under the said Article. The appellant has
been charged for possession, transportation and distribution of AK-56 rifles, their
ammunitions as well as hand-grenades, which were illegally smuggled into the country in
pursuance of the criminal conspiracy.
182
31) We are also satisfied that there has been no violation of Rule of Speciality and the
Solemn Sovereign Assurance given by the Government of India in the letter dated 25.05.2003
of the Indian Ambassador to the Government of Portugal regarding the trial of the appellantAbu Salem. The said assurance of the Indian Ambassador was given to the effect that the
appellant will not be prosecuted for the offences other than those for which his extradition has
been sought and that he will not be re-extradited to any other third country. As rightly pointed
out by the Solicitor General, there has been no violation of Rule of Speciality. As per the
Government of India Gazette Notification dated 13.12.2002, all the provisions contained
under the Extradition Act are made applicable in respect of the extradition of Abu Salem
except those contained in Chapter III of the Act. The Court of Appeals in Lisbon, has
recognized this principle of reciprocity and the applicability of the provisions of Extradition
Act to Portugal. The Supreme Court of Justice and Constitutional Court of Portugal have also
approved it. In view of the fact that the provisions of the Extradition Act, 1962 have been
made applicable to Portugal, provisions contained in Section 21 of the Act would come into
operation while conducting the trial of appellant-Abu Salem. 32) We are also satisfied that the
Designated Judge has correctly concluded that the appellant-Abu Salem can be tried for
`lesser offences’, even if, the same are not covered by the Extradition Decree since the same is
permitted under Section 21(b) of the Extradition Act. No bar has been placed by the
Portuguese Courts for the trial of lesser offences in accordance with the provisions contained
under Section 21(b) of the Extradition Act although Portuguese Courts were aware of the said
provisions of Extradition Act.
33) We have already highlighted how the Government of India and the Government of
Portugal entered into an agreement at the higher level mentioning the relevant offences and
the appellant was extradited to India to face the trial. We have also noted the Notification of
the Government of India about the applicability of Extradition Act, 1962. In the light of the
said Notification, the additional charges that have been framed fit well within the proviso to
Section 21(b) of the Extradition Act. The offences with which the appellant has been
additionally charged are lesser than the offences for which the appellant has been extradited.
To put it clear, the offences with which the appellant is charged are punishable with lesser
punishment than the offence for which he has been extradited. The extradition granted in the
present case had due regard to the facts placed which would cover the offences with which
the appellant has been charged. As rightly pointed out by learned Solicitor General, the
offences are disclosed by the same set of facts placed before the Government of Portugal. We
agree with the submission of the learned Solicitor General and the ultimate decision of the
Designated Court.
34) Coming to the order of the Designated Court directing separation of the trial of the
appellant, it is the grievance of the appellant that because of the separation, he would forego
the opportunity to cross-examine the witnesses. This grievance has been dealt with in a
separate set of proceeding which we have adverted to in the earlier part of our judgment. The
183
order dated 24.08.2009 has granted the appellant an opportunity to submit a list of witnesses
examined in the main trial for cross-examination. Hence, there is no basis in the apprehension
raised by the appellant.
35) In the light of the above discussion, we are of the view that the appellant has been
charged within the permissible scope of Section 21(b) of the Extradition Act and the
Designated Court has not committed any illegality in passing the impugned orders.
Consequently, all the appeals as well as the writ petition are liable to be dismissed,
accordingly dismissed. Since the trial is pending from the year 1983 and connected matters
have already been disposed of, we direct the Designated Court to proceed with the trial
expeditiously. ……………………………………J. (P. SATHASIVAM)
JUDGMENT
GANGULY, J.
1. I have gone through the judgment prepared by Hon’ble Brother Justice P. Sathasivam
and I agree with the conclusions reached by His Lordship.
2. Having regard to the importance of the issues discussed in the judgment, may I
express my views on the same.
3. Conceptually extradition is a rather complex jurisprudential zone as it has
encompassed within itself various trajectories of apparently conflicting ideas.
4. Generally, a State’s criminal jurisdiction extends over offences committed within its
geographical boundaries but it is the common experience of all the countries that often a
criminal committing an offence in one country flees to another country and thus seeks to
avoid conviction and the consequential punishment. This poses a threat in all civilized
countries to a fair adjudication of crime and sustaining the Constitutional norms of Rule of
Law.
5. To remedy such anomalous and unjust situation, Extradition has been evolved by way
of International treaty obligation which ensures a mode of formal surrender of an accused by
the one country to another based on reciprocal arrangements.
6. In India, extradition has not been defined under the Extradition Act 1962 (hereinafter,
"the Act"). However, a comprehensive definition of extradition has been given in
Gerhard Terlinden vs. John C. Ames in which Chief Justice Fuller defined extradition as:-the
surrender by one nation to another of an individual accused or convicted of an offence outside
of its own territory, and within the territorial jurisdiction of the other, which, being competent
to try and to punish him, demands the surrender." [184 U.S. 270 at p. 289]
7. In the above formulation, the learned Chief Justice virtually echoed the principles of
extradition laid down by Professor M. Cherif Bassiouni in his treatise "International
Extradition and World Public Order, 1974, Oceana Publications". The learned Professor
explained: In contemporary practice extradition means a formal process through which a
person is surrendered by one state to another by virtue of a treaty, reciprocity or comity as
between the respective states. The participants in such a process are, therefore, the two states
184
and, depending upon value-perspectives, the individual who is the object-subject of the
proceedings. To a large extent, the processes and its participants have not changed much in
the course of time but the rationale and purposes of the practice have changed, and as a
consequence so have the formal aspects of the proceedings." (Page 2)
8. But extradition is different from deportation by which competent State authorities
order a person to leave a country and prevent him from returning to the same territory.
Extradition is also different from exclusion, by which an individual is prohibited from staying
in one part of a Sovereign State. As a result of such orders, sometimes deserters or absentees
from Armed Forces of a particular country are returned to the custody of Armed Forces of the
country to which they belong.
9. Both deportation and exclusion basically are non-consensual exercise whereas
extradition is based on a consensual treaty obligation between the requesting State and the
requested State. Extradition, however, is only to be resorted to in cases of serious offences
and Lord Templeman was right in holding that extradition treaties and legislation are
designed to combine speed and justice [Re Evans – 1994 (3) All E.R. 449 at 450- 451].
10. In the context of extradition law, which is based on international treaty obligations,
we must keep in mind the emerging Human Rights movements in the post World War II
scenario and at the same time the need to curb transnational and international crime. The
conflict between these two divergent trends is sought to be resolved by expanding the
network of bilateral and multilateral treaties to outlaw transnational crime on the basis of
mutual treaty obligation. In such a situation there is obviously a demand for inclusion of
Human Rights concerns in the extradition process and at the same time garnering more
international support and awareness for suppression of crime. A fair balance has to be struck
between Human Rights norms and the need to tackle transnational crime. This is best summed
up in the leading decision of European Court of Human Rights rendered in Soering vs. United
Kingdom reported in 1989 (11) EHRR 439 and the relevant excerpt is quoted: …inherent in
the whole of the Convention (European Convention on Human Rights) is a search for a fair
balance between the demands of the general interest of the community and the requirements
of the protection of the individual’s fundamental rights. As movement about the world
becomes easier and crime takes on a larger international dimension, it is increasingly in the
interests of all nations that suspected offenders who flee abroad should be brought to justice.
Conversely, the establishment of safe havens for fugitives would not only result in danger for
the State obliged to harbour the protected person but also tend to undermine the foundations
of extradition. These considerations must also be included among the factors to be taken into
account in the interpretation and application of the notions of inhuman and degrading
treatment or punishment in extradition cases.
11. The extradition law, therefore, has to be an amalgam of international and national
law. Normally in extradition law the requested State is to follow the rule of Non-Inquiry
which means that the requested State is not to normally make inquiry about the nature of
criminal justice system in the requesting State. That is why in this case, on a complaint being
made by Abu Salem in the Court of the requested country, the Courts of Portugal await the
decision of this Court. The actual conduct of trial of the extradited accused is left to the
185
criminal jurisprudence followed in the requesting State. This rule of Non-Inquiry is a well
developed norm both in Canada and in America [See the decision of Canadian Supreme Court
in Canada vs. Schmidt, (1987) 1 SCR 500.
12.Justice La Forest delivering the majority judgment in Schmidt held: "that I see
nothing unjust in surrendering to a foreign country a person accused of having committed a
crime there for trial in the ordinary way in accordance with the system for the administration
6 of justice prevailing in that country simply because that system is substantially different
from ours with different checks and balances. The judicial process in a foreign country must
not be subjected to finicky evaluations against the rules governing the legal process in this
country."
13.Whether or not the fugitive who has been extradited would have a standing to
complaint of the judicial process in the requesting State after extradition has been done,
independent of the position taken by the requested State, is a debatable issue. It is a part of the
larger debate about the position of an individual as a subject of international law, and the
obligation of States towards individuals. This is pertinent here because one of the claims
made by Abu Salem is with respect to the erosion of his rights that exist by way of the
international commitments India has made through the doctrine of specialty embodied in
section 21 of the Extradition Act. His complaint is that by trying him for some offences which
are designated as `lesser offences’ and calling them as completely similar to the ones
mentioned before the Portuguese authorities, as well as by separating his trial from the other
accused, the Government of India has violated its commitments in the extradition request, and
therefore has violated the rights with which Abu Salem had been extradited. The answer to
this complaint obviously lies in the principle of non-inquiry which prohibits questioning the
fairness of the judicial process in the 6 requesting State. That is why the Courts of Portugal
await the decision of this Court. However, non-inquiry is not an absolute principle.
14. In a given situation, the requested State may question the procedures in the
requesting State if they are prima facie contrary to fundamental principles of justice and there
is a high risk of the fugitive being prejudiced by the process of extradition.
