Following the removal of a foreign national from Mauritius last week, the PMO issued a press release four days later and the Prime Minister and Attorney General made comments over the weekend. This article analyses these statements and the rules, procedures and safeguards under international and domestic law relating to removal of suspects or convicts from one State to another.
International Cooperation in Criminal Matters
Except where there is an international crime when any State can exercise jurisdiction, the territoriality principle applies. States can only exercise criminal jurisdiction over acts committed within their territory and except for some jurisdictions where accused parties can be tried in absentia, the most common rule is that an accused will only be tried when he is within the jurisdiction. States must therefore secure the physical presence of the accused within its territory for the trial to take place. If the accused is found in another jurisdiction, the State will in the normal course of things ask the other State (the requested State) to extradite the accused. In some rare cases, States have resorted to abduction of suspects found in other jurisdictions and bring them home to stand trial but that would clearly be a breach of international law. The traditional route followed by law-abiding States is the extradition route unless the domestic law of the requested State allows for other means.
To promote international cooperation in criminal matters specially since criminal acts have an increasingly cross-border dimension or persons suspected of a crime in one State may have fled to another State, there are arrangements for States to provide mutual legal assistance and for extradition of individuals suspected or convicted of a criminal offence, found on their territories. These arrangements are generally governed by a bilateral or multilateral treaty.
In the absence of a treaty, States may still decide to extradite a suspect by virtue of principles of comity, in a spirit of cooperation, provided certain assurances are obtained from the requesting State. An Interpol Red Notice is issued by the International Criminal Police Organisation at the request of a national Police force for fugitives wanted either for prosecution or to serve a sentence. A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.
In all circumstances, there are legal safeguards for a non-citizen being "deported", "extradited" or "surrendered." In Mauritius we have a Mutual Assistance in Criminal and Related Matters Act, a Deportation Act and an Extradition Act.
It is right that Mauritius should extend assistance to foreign States investigating serious criminal offences or fugitives who have been convicted of serious criminal offences. However, any assistance in gathering and sharing information or in relation to the arrest of a suspect at the request of a foreign State with a view to the removal of the person from Mauritius can only be extended in accordance with the provisions of Mauritian law. Mauritian law rightfully provides for judicial control of the decisions of the Executive in this regard as a safeguard against abuse of power or unlawful acts.
Removal of a Slovak National from Mauritius
In the case regarding the Slovak national removed from Mauritius last week, it would appear that a Red Notice was issued by Interpol in August 2019, that a request for extradition from Slovak authorities was received by the Mauritian Attorney General one year later in August 2020. The Slovak national was arrested in by Mauritian Police in February 2022.
The usual practice in most jurisdictions is for Authorities in the requested State to arrest the individual whose extradition is being sought and then for the competent authority of the requested State to apply to the Court for an Extradition Order. However, the Mauritian Attorney General stated at a press conference on Saturday that the Slovak national was not "deported" or "extradited" but was removed from Mauritius under the Immigration Act. But the Immigration Act provides for a non-citizen to be deprived of the status of a resident or permanent resident and not for the removal from Mauritius. The Immigration Act only provides that if the non-citizen has lost his status as a resident he is then considered as a prohibited immigrant and can thus be deported under the Deportation Act. So it is not clear why the Attorney General stated that the Slovak national had been removed under the Immigration Act.
The Attorney General also stated that since the Order issued by a Judge of the Supreme Court prohibited "deportation" or "extradition" and that since Mr Peter Uricek was neither "deported" nor "extradited", the Court Order did not apply. However, it is clear that the Court Order not only prohibited a deportation or extradition but also stated that the applicant should not be REMOVED FROM MAURITIUS prior to the Extradition hearing before the District Court of Port-Louis.
The Prime Minister's Office has stated that "Mr Uricek was not deported from Mauritius", "was neither extradited from Mauritius", "Nor was Mr Uricek removed by the State of Mauritius, the Prime Minister, the Passport and Immigration Officer, the Attorney General or the Director of Civil Aviation. The removal from Mauritius was effected by the Slovakian Authorities after Mr Uricek was handed over by the Mauritius Police" .
Even if, arguably, the Court Order did not cover the circumstances in which Mr Uricek was removed from Mauritius or the respondents to whom the order was addressed did not cause the removal, did the police officers who were apprised of the Court Order actually seek instructions or advice that the Court Order did not apply in the circumstances or did they proceed to the airport to hand Mr Uricek to the Slovak officials on their own instant interpretation as to the scope of application of the Court Order?
In any case, it would appear that the Attorney General had applied to the Court for an Extradition Order and that before the Court could decide the application, Mr Uricek was handed over to the Slovak authorities by the Mauritius Police and removed from Mauritius. The Attorney General of Mauritius had started extradition proceedings before the District Court of Port-Louis and the hearing had been fixed for 11 May. But before the hearing, the Slovak national was 'handed over" to the Slovakian authorities with assistance of the Mauritian Police. So the Mauritian Police assisted with the handing over, whilst they knew or should have known, that there was an application for an Extradition Order by the Attorney General of Mauritius pending before a District Court?
The statement from the PMO that Mr Uricek was removed from Mauritius by the Slovakian authorities raises a number of very serious issues.
1. When the Slovak authorities arranged to send officials to Mauritius, who granted approval for this? Was the deciding authority aware of the fact that the Attorney General had already made an application to the Court for an Extradition Order?
2. Under established principles of international law, officials of a foreign State cannot perform any administrative, judicial or other act on the territory of another State except with express consent of the latter and usually only in conjunction with the authorities of that State. A removal of a person from one State by officials of another State without that State's consent could amount to an abduction and constitute a breach of international law as it would be a violation of the sovereignty of the other State. Who provided the required authority for the "handing over" of Mr Uricek to the Slovak officials and for them to remove Mr Uricek from Mauritius?
3. Since the PMO declared that a person was removed from Mauritius by officials of another State and that neither the State of Mauritius nor the Prime Minister nor any other Mauritian official was involved, is it the policy of Government to surrender its sovereign rights over its territory under international law to foreign officials and in what circumstances?
4. Is it the policy of Government that persons declared to be undesirable under the Immigration Act may be "handed over" to foreign authorities on Mauritian territory?
5. Was Mr Uricek "handed over by Mauritius Police" to foreign officials because he had been declared a prohibited immigrant under the Immigration Act OR was he "handed over" pursuant to an extradition request from Slovak authorities OR under some other agreement between the Mauritian and Slovak governments? These situations are obviously governed by different legal provisions of Mauritian law.
6. The press release from the PMO repeatedly refers to the "lawful removal" from Mauritius. Who has made the determination that the removal was lawful and under what provisions of the law can a non-citizen for whom an extradition request has been made and a court application is pending still be "handed over" to foreign officials by the Mauritius Police without the approval of the Prime Minister/Minister for Home Affairs or the Attorney General or the Court and in the absence of a Deportation Order or an Extradition Order, without the consent of the non-citizen concerned?
Conclusion
If the removal from Mauritius was lawful under international law because there had been an express consent or approval for removal of the non-citizen by foreign officials, there are still questions that must be answered as to whether it was lawful under domestic law for the Government of Mauritius to do so and as to whether as a matter of policy it was right to do so in a country that boasts its respect for the Rule of Law.
Any formal statement by a Government that a foreign national on its territory was "lawfully removed" not by the exercise of the State's sovereign rights over its territory but by agents of a foreign State would be preposterous. That would be akin to an abdication of sovereignty by the Government concerned. That cannot have been the case with regard to what happened last week. The State of Mauritius acting through the Executive or agencies or instrumentalities of the State must have given express approval or consent. Otherwise, such removal by a foreign State would amount to a violation of our sovereignty and a serious breach of international law.
The consent was given by the State of Mauritius after the State acting through the Attorney General had initiated extradition proceedings before the District Court. So the executive branch of government made an application to the judicial branch of government but then decided that it would not wait for the outcome of the judicial process and would go ahead anyway on its own.
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Judicial control over the whole process of removal of an individual from a State's territory is important. For instance, if a foreign national legally residing in a country calls the Prime Minister an "idiot", it is the Prime Minister who may declare him to be a prohibited immigrant and it is the Prime Minister himself who will sanction the deportation. To avoid abuse of power by the Executive, judicial control is a must if a country claims respect for Rule of Law.
The Mauritian Government states that it is committed to fighting drug trafficking and no person suspected of drug trafficking can find refuge in the country. There may indeed be widespread support for this policy. But policy can only be implemented in accordance with law: both the enabling legislation which authorises the Executive to implement the policy and lays down the procedural safeguards to prevent abuse of executive action AND the legal and constitutional rights of anyone on Mauritian territory with respect to decisions of the Executive.
In promoting Mauritius to foreign investors or foreign professionals whose skills we require, we always highlight that we have Rule of Law in this country and that there is a right of recourse to an independent and impartial judiciary. Does the Mauritian Government want to add a proviso to this: there are circumstances where a foreign investor or professional may be "handed over" to officials of a foreign State without any due process and without any recourse to judicial authorities?
Government is highlighting the seriousness of the offence of which Mr Uricek has been accused of. Is the Government saying that it is for the Executive to characterise an offence as sufficiently serious for the Executive to "hand over" an individual to foreign officials without having to comply with its own domestic law or by effectively ousting any kind of judicial control?
The decision to "hand over" the Slovak national has far reaching consequences not only in terms of Mauritian law but also in so far as the country's image abroad is concerned.
(This analysis does not include any discussion of the merits of the arguments being made about possible contempt of court or usurpation of the role of the judiciary by the Executive as these may be presently under consideration by the DPP following a referral by the Supreme Court).
