The Doctrine of “Double Criminality”: A Key Barrier in Extradition Cases to the USA

When a foreign state requests the extradition of a person from the USA, it may seem that the decision is merely a matter of diplomacy or political will. However, in reality, the first and most powerful barrier becomes the law, specifically the doctrine of dual criminality. A court in the USA will not extradite a person if the act they are accused of is not considered a crime under the laws of both countries. This rule can completely halt extradition even if there is a treaty, evidence has been presented, and the case has caused international resonance.

Our lawyers use this mechanism as one of the main tools of defense. We analyze the criminal legislation of both countries, compare the norms, identify discrepancies, and prove to the court that extradition violates the doctrine of dual criminality. This approach is especially effective when it comes to tax, economic, political, and religious cases.

The idea is simple: extradition is permissible only when both states recognize the incriminated act as a crime. If, for example, the requesting party accuses a person of tax evasion, but a similar act is not criminally punishable in the United States (or falls under administrative violations), there are no grounds for extradition. Dual criminality serves as a filter, protecting against abuse and politically motivated prosecutions.

When considering an extradition request, a U.S. federal judge does not assess the guilt of the individual but only evaluates whether the requirement of dual criminality is met. The court compares the legal qualification of the act, not the specific wording of the statutes. For example, if the crime is named differently in the laws of the two countries but the essence of the offense is identical, the requirement may be considered fulfilled. However, if the actions described in the request do not constitute a crime under U.S. law, the judge does not have the authority to certify extradition.

The principle of double criminality is one of the key filters in an extradition hearing. But how exactly does the judge determine whether it is fulfilled? An American court does not compare the literal title of a law article from another country with the American criminal code. Instead, it applies a conduct-based test approach—examining whether the act described in the request is punishable under U.S. law, regardless of how it is classified abroad.

The court examines not the article number and not the wording in the law of another country, but the factual circumstances and actions of the person. This is an important legal principle: label test is not applied – conduct test is in effect.

The judge examines the essence of the accusation: what exactly the person allegedly did – embezzled money, gave a bribe, forged documents, evaded taxes, etc. They compare this essence with U.S. criminal laws – whether a similar act is punishable under American law. If the actions described in the request are also considered a crime in the U.S., the requirement of dual criminality is met, even if the name of the article is completely different.

The system of the USA differs from most countries: it is two-tiered – federal law and the law of each state. Therefore, the question arises: at what level should an act be a crime to comply with the principle of double criminality? The court will consider the requirement fulfilled if the act is a crime under at least one of the following sources:

In extradition cases, two similar defense arguments are often heard: “absence of double criminality” and “exception for political offenses.” Both can lead to a refusal of extradition but are based on completely different legal principles. To build an effective defense strategy, it is important to understand how exactly they work and what the difference between them is.

1. Double criminality – formal legal test

The principle of dual criminality is a strict legal filter embedded in every extradition treaty of the USA. It requires that the act for which extradition is requested be criminally punishable under the laws of both the USA and the requesting country.

If at least one side does not have an equivalent offense, the court cannot certify extradition. The judge considers the conduct test, not the name of the article. For example, if a person is accused of “insulting a representative of authority,” the judge will determine that such an offense does not exist in American law, and extradition will be impossible.

This is a purely legal argument, and it is considered at the Judicial Stage. If the principle of double criminality is not observed, the court is obliged to reject the request, regardless of politics, diplomacy, or the position of the State Department.

2. Exception for political crimes – motivational test

The second argument is the Political Offense Exception. It is based not on the fact that the act is not a crime, but on why it was committed. This principle dates back to the 19th century and is aimed at protecting individuals persecuted for their political beliefs.

The essence: if a crime has a political nature (participation in demonstrations, publications against the regime, actions within the framework of a political conflict), the USA may refuse extradition, even if it is formally punishable under criminal law.

The Magistrate Judge does not consider the matter as a criminal proceeding but as a review of compliance with international treaty obligations. His task is to determine whether the formal conditions for extradition have been met. However, the judge is neither obligated nor equipped with resources to conduct a comparative legal analysis. He evaluates only what is presented by the parties. If the defense does not provide convincing evidence, the court will conclude that dual criminality has been satisfied simply because the opposite has not been proven.

The lawyer’s task is to construct a detailed argument proving that the client’s behavior does not constitute a crime under American law. For this, it is required:

Our team of lawyers specializes in extradition cases and knows how to use the principle of double criminality to protect the client. We:

If you or your client are faced with an extradition request, time works against the defense. Every day of delay increases the risk of certification of extradition. Contact our lawyers right now to receive an expert opinion, a comparison of legislation, and a defense strategy built on solid legal grounds.