Down the Gupta rabbit hole: Why extradition is a tricky subject around the world

Down the Gupta rabbit hole: A series on how the Gupta brothers have managed to dodge the law and sustain a life of luxury over the last seven years.

They may have been the ‘most wanted’ suspects in South Africa, but to the United Arab Emirates (UAE) they were just one of many dodgy business tycoons with a shady résumé and a ton of cash to spend, seeking retreat, while they waited for the dust around their name to settle.

Gupta extradition

South Africans should not be surprised that its first attempt to extradite business moguls Atul and Rajesh Gupta failed so dismally.

This is generally how it goes in these situations, which is why Interpol’s red notice list is almost 7 000 names long.

 Let’s look at our fellow countries’ past experiences with defaulting billionaires.

ALSO READ: SA’s request to extradite Gupta brothers from UAE fails

Businessmen on the run

India has been trying since 2017 to extradite fugitive businessman Mehul Choksi. He is allegedly wanted for criminal conspiracy, criminal breach of trust, cheating and dishonesty, as well as corruption and money laundering.

But alas, Choksi secured Antiguan citizenship (a sovereign island in the West Indies) which he managed to acquire in 2017. India doesn’t exactly have an extradition agreement with the region.  

Israel, in turn, has been trying for years now to extradite Ukrainian businessman Alexander Granovsky on charges of fraud, forgery, money laundering, and false information disclosure in public corporate documents.

According to reports, Granovsky, who has been indicted for stealing tens of millions of dollars from the public pyramid holding group BGI, is still a free man. Israel failed in its attempt to extradite him for the reason that “Ukraine does not extradite its citizens”.

In Ukraine, it is a basic right for all citizens to be protected from extradition according to the country’s constitution.

ALSO READ: Gupta brothers, who are meant to be detained in UAE, reportedly seen in Switzerland

Russia has been trying to extradite businessman Sergei Polonsky since 2008. He is wanted on charges of embezzlement.

It is believed that he embezzled more than $175 million from real-estate investors. He took refuge in Cambodia. In 2014, Cambodia’s highest court ruled against the extradition of Polonsky.

When word of possible prosecution against the Guptas started to make headlines in South Africa, the brothers immediately jumped ship to Dubai before they could even be charged.

As such, they could not be trialled – not even in absentia as they would first have to appear in a South African court.

But why Dubai?

The UAE has had a reputation as a safe haven for some of the world’s most wanted criminals.

In the early 2000s, the country was known for its non-extradition policy, its seven-star lifestyle offering and its lax financial rules as well as its free-trade zones.

Life in Dubai was governed purely at the discretion of its own makings.

The Gupta brothers left for Dubai in 2016, the same year as Irish mobsters and alleged drug kingpins, the Kinahans, who fled Spain.

Reports say they’ve been charged with at least 20 murders, in addition to commercial crimes like the Guptas.

Despite the UAE working to clean up its reputation as a criminal safe haven by signing agreements to extradite, the Kinahans and the Guptas have yet to be sent back to the states they have allegedly transgressed against.

What is extradition?

According to the Council of Foreign Affairs, extradition is the process by which one country hands over a person who has committed a crime to another country, where that person is wanted to face charges or serve a sentence.

It’s like when someone who has committed a crime in one state is arrested and sent back to the state where the crime was committed to face trial.

But attorney and media personality, Richard Chemaly explained that there actually is no universal definition.

“Because extradition is based on agreements and often treaties, there is no universal definition and, interestingly, the treaty South Africa has with the UAE does not provide a definition,” he said.

Extradition is usually governed by agreements between countries and involves a formal request from one country to another.

ALSO READ: ‘National embarrassment’: Political parties slam ‘bungled’ Gupta brothers extradition

South Africa has such an agreement in place with the UAE. South Africa signed the treaty with the UAE in late 2018, which has since been ratified – that is reinforced – in April 2021.

So, what went wrong?

Why did the UAE turn down our request for the extradition of the Guptas?

Chemaly says that while the treaty with the UAE is binding, enforcing it is another issue.

“It is the Achilles’ heel of international law that enforcement is near impossible and certainly impractical if the other side doesn’t want to play ball,” he said.

The NPA has confirmed that South Africa’s request for extradition was denied on a technicality.

The technicality was that on the charge of money laundering levelled against the Gupta brothers, the alleged crime was said to have been committed both in the South Africa and the UAE.

Now under UAE law, extradition can be denied if the UAE feels that it has the right in itself to hold the Gupta brothers accountable for such a crime – if it does indeed deem what the Gupta brothers have done as a crime.  

“Article 5 of the treaty does allow for the requested party to deny the request on the strength that they themselves can prosecute the charge,” Chemaly confirmed.

The other technicality was that the arrest warrant relating to the charge of fraud and corruption was cancelled as not enough evidence was gathered, which the court used as a basis for denying the extradition request because the “legal proceeding agreed upon” was not adhered to.

The UAE said that the extradition request did not meet the “strict standards for legal documentation” contained in an extradition treaty.

But can they do that?

Apparently, they can. According to Cornell Law School, most extradition agreements work on the principle of reciprocity. 

Generally, the requesting country must provide evidence to the requested country that meets certain legal standards, such as showing that the conduct alleged would amount to a crime under the laws of both countries, and that there is enough evidence to justify prosecution or punishment.

Also, Chemaly says that extradition only happens when the punishment is a year or more of prison.

So, in other words, the conduct that is the subject of the extradition request must be a criminal offence under the laws of both the requesting and requested countries.

While stabbing someone is considered a universal crime in two or more regions, using one’s connections to secure a job for one’s son may in some regions be seen as an offence of nepotism and in others as a cultural way of doing business.

While the UAE executed an arrest of the Guptas in June last year, if their courts do not feel there was enough evidence presented to constitute a crime or they do not define it as a crime, then they do not have to extradite the individual.

Chemaly advises: “In terms of the treaty, there must either be conduct that warrants a punishment in both countries of at least one year imprisonment or they must already be convicted of a crime.”

The Guptas have since shed their South African citizenship and slithered off Interpol’s Red Notice list. There is speculation they have left the UAE for greener pastures.