Timor-Leste: Constitution allows for extradition only after court decision Section 35(1) of the Constitution of the Democratic Republic of Timor-Leste of 2002 provides that, “[e]xtradition shall only take place following a court decision.” Extradite or prosecute “ [T]he Convention imposes an obligation [on a State Party] to bring to trial a person, alleged to have committed torture, who is found in its territory” where they cannot be extradited, in order to try to prevent impunity for torture. Marcos Roitman Rosenmann v. Spain, Committee against Torture, No. 76/2000, para. 6.7, concerning Spain’s 1998 request to the United Kingdom for the extradition of General Augusto Pinochet Ugarte of Chile, to put him on trial for acts of torture committed against Spanish nationals in Chile during 1973-1990. While Art. 7(1) UNCAT does not establish an obligation to extradite over prosecute, or to prosecute over extradite, the choice between prosecuting and extraditing only exists when an extradition request has been made, and when extraditing would be permissible under international law. Where, instead, extradition cannot take place – for example because there is no legal basis for it (e.g., no treaty, or the State does not accept UNCAT as the legal basis), or because of refoulement considerations (see “Safeguards against refoulement” above) would prevent it – the State party has an obligation to submit the case to the competent authorities for the purposes of prosecution (Art. 7.1). This is the customary international law principle of aut dedere aut judicare (extradite or prosecute). In such circumstances, the State party shall take such necessary measures to establish jurisdiction for offences of torture (Art. 5.2). While prosecuting individuals for such crimes committed elsewhere may raise a number of challenges, including evidence collection, as of 2017, 14 countries had, for example, set up specialized war crimes units to investigate, prosecute and bring to justice suspects for the most serious crimes, including torture.1 Belgium v. Senegal – In its 2012 judgment concerning the case of Hissène Habré, Chad’s former President, for certain crimes including torture, the International Court of Justice observed that, if the State where the suspect is present receives an extradition request, then granting extradition may relieve it of its obligation to prosecute. On the other hand, a State has an international obligation to submit a case to its competent authorities for a decision, should it not extradite. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) Denmark: State Prosecutor for Serious Economic and International Crimes In Denmark, the State Prosecutor for Serious Economic and International Crime was set up to handle, among other things, serious crimes, primarily genocide, crimes against humanity and war crimes committed abroad, for which investigations and criminal prosecutions require “special knowledge and insight into conditions in areas outside Denmark, and the establishment of collaboration with authorities, institutions, organisations, etc., in other countries”. 1 Fair Trials and REDRESS, Make Way for Justice #4, report on cases in process under universal jurisdiction, 2018: Information from this report is dated for 2017. Of the 126 cases documented in the report, there were 55 charges of torture. TOOL: Cooperation on extradition 9/12