Fugitive

Who is a Fugitive?

A fugitive is a person who has escaped or fled from law enforcement to avoid arrest, prosecution, or punishment for a crime, or from justice to evade legal proceedings or consequences, or from authority to escape control, restraint, or obligation. The word "fugitive" originates from the Latin term "fugitivus", meaning "one who flees" or "runaway", which is derived from "fugere", meaning "to flee" or "to escape". Essentially, the word "fugitive" is composed of the Latin root "fug-" meaning "to flee" and the suffix "-itive" forming a noun indicating a person or thing that performs an action, resulting in a term that literally means "one who flees" or "a person who escapes".

According to Black's Law Dictionary, a fugitive is defined as:

"A person who flees or escapes from the jurisdiction of the courts or from the law, often to avoid prosecution or punishment for a crime. A person who is fleeing from justice, or who is evading legal process."

A fugitive is someone who is attempting to evade justice. An individual can become a fugitive under various circumstances: they could have been charged with a violation of the law but not been arrested; they could have been released on bail and then fled to avoid prosecution; or they could have escaped from prison. Fugitives pose a serious threat to public safety worldwide. They are mobile, traveling between countries (sometimes using stolen or fraudulent travel documents) and opportunistic, often financing their continued flight from the law through further criminal activities.

Types of Fugitives

Broadly the fugitives have been classified into specific categories by the FBI as fugitives committing Crimes against Children, Murder, Additional Violent Crimes, Cyber, White Collar Crimes, Counterintelligence, CEI and Human Trafficking.

Fugitive counterintelligence offender

A Fugitive Counterintelligence Offender is an individual who has allegedly committed crimes related to counterintelligence, such as:

1. Espionage agents

2. Moles (individuals working within an organization to gather intelligence)

3. Double agents (individuals working for both their country and a foreign power)

4. Defectors (individuals who have switched allegiance to a foreign power)

5. Cyber spies

Fugitive Criminals

       - FBI considers fugitive as a person who is being sought for prosecution or punishment for a crime, or who is being sought for questioning in connection with a crime.

2. European Union:

   -As per Article 2(1) of the European Arrest Warrant Framework Decision (2002/584/JHA): "A person who is the subject of a European arrest warrant..."can be a economic or criminal offender.

These definitions generally share common elements, including:

- The person is wanted for prosecution or punishment for a crime

- The person is avoiding capture or prosecution

- The person is outside the jurisdiction where they are wanted

CEI ( Criminal Enterprise Investigation)

In common parlance, it is a comprehensive and proactive inquiry into organized crime groups, networks, or individuals engaged in illicit activities, aiming to disrupt, dismantle, and prosecute those involved, while preventing future criminal operations.

As per Racketeer Influenced and Corrupt Organizations (RICO) Act (18 U.S. Code § 1961-1968)

RICO defines a "criminal enterprise" as:

"...any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce, and which is engaged in a pattern of racketeering activity or collection of unlawful debt."

White Collar Crimes

In common parlance, the non-violent, financially motivated crimes committed by individuals or organizations for personal or business gain, often involving deception, fraud, or abuse of trust being characterized by complex financial transactions.

There may be further different grounds on whose basis fugitives can be further classified:

Nature of the Crime:

The FBI Most Wanted lists and U.S. Marshals 10 Most Wanted provide classifications based on crime types, emphasizing violent offenders, sexual predators, and organized crime leaders (FBI, 2024).

Jurisdictional Status:

Fugitives are classified based on where they are wanted, such as local, state, national, or international jurisdictions.

Interpol’s Red and Blue Notices are examples of documents that categorize fugitives based on international jurisdiction and requests for extradition (Interpol, 2023).

Risk and Threat Level:

Some fugitives are classified based on the level of threat they pose to public safety or national security, such as those involved in terrorism, violent gangs, or organized crime.

Europol’s Most Wanted Fugitives list focuses on individuals who pose a significant threat to society, including terrorists and organized crime leaders (Europol, 2023) by the EnFAST team.

Legal Status:

Fugitives can also be classified by their legal status, such as pre-trial (accused but not yet convicted), post-conviction (escaped from custody), or parole/probation violators.

The U.S. Marshals Service classifies fugitives as “absconders” (those who fail to appear in court) and “escapees” (those who flee from custody) (U.S. Marshals Service, 2023).

Motivation or Intent:

Classification can also be based on the fugitive’s intent, such as those fleeing for political asylum, escaping repressive regimes, or avoiding legal persecution.

Human Rights Watch and Amnesty International often report on political fugitives and asylum seekers who flee oppressive regimes (Human Rights Watch, 2023).

Geographic Location:

Fugitives may be categorized based on whether they are domestic or international, influencing the coordination required for their capture.

Interpol and the U.S. Department of Justice often classify fugitives as domestic (within national borders) or international (crossing borders), requiring different levels of international cooperation (U.S. Department of Justice, 2024).

Type of Evasion:

Fugitives can be grouped by how they evade capture, such as using false identities, fleeing to countries without extradition treaties, or living off the grid.

U.S. Immigration and Customs Enforcement (ICE) lists individuals who use sophisticated evasion techniques, including fraudulent documents and cross-border movements (ICE, 2023).

Appearance on Databases

Fugitive Most wanted in diffferent categories ( Crimes against Children, Violent Crimes, Counterinelligence, CEI and more) as per FBI

• FBI
  

Interpol Red Notice in Circulation for wanted categories

• Interpol Red Notice

CBI Interpol Link-up for obtaining wanted, absconding persons

• CBI-Interpol Link- Up

Official definition in the Statutes

Fugitive Economic Offenders Act, 2018

The FEO Act was introduced to prevent the instances of economic offenders running out of the country and induce the return of the offenders if they are already in other country. The Act aims to provide a procedure to declare an individual as a fugitive economic offender and upon declaration the authorities have the power to attach and confiscate the properties that are owned by the individual and properties that are believed to be the proceeds of crime whether in India or abroad.

Section 2(f) of the Act states that "fugitive economic offender" means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who

(i) has left India so as to avoid criminal prosecution; or

(ii) being abroad, refuses to return to India to face criminal prosecution;

The list of Scheduled Offence is prescribed in the Act which covers economic / fiscal offences under the Indian Penal Code, 1860, the Prevention of Corruption Act, 1988, the Securities and Exchange Board of India Act, 1992, the Prevention of Money Laundering Act, 2002 amongst several other law that deals with such offences. The "Scheduled Offence" means an offence specified in the Schedule, if the total value involved in such offence or offences is one hundred crore rupees or more.

Highlights of the Bill and Ordinance

• The Bill allows for a person to be declared as a fugitive economic offender (FEO) if: (i) an arrest warrant has been issued against him for any specified offences where the value involved is over Rs 100 crore, and (ii) he has left the country and refuses to return to face prosecution.   
• To declare a person an FEO, an application will be filed in a Special Court (designated under the Prevention of Money-Laundering Act, 2002) containing details of the properties to be confiscated, and any information about the person’s whereabouts.  The Special Court will require the person to appear at a specified place at least six weeks from issue of notice.  Proceedings will be terminated if the person appears.
• The Bill allows authorities to provisionally attach properties of an accused, while the application is pending before the Special Court.
• Upon declaration as an FEO, properties of a person may be confiscated and vested in the central government, free of encumbrances (rights and claims in the property).  Further, the FEO or any company associated with him may be barred from filing or defending civil claims.

Process	Details
Application	The authorities appointed under the PMLA may file an application before a Special Court (designated under the PMLA) to declare a person an FEO.  The application will contain: (i) reasons to believe that an individual is an FEO, (ii) information about his whereabouts, (iii) list of benami properties, properties believed to be proceeds of a crime, or foreign properties for which confiscation is sought, and (iv) list of persons having an interest in these properties.
Attachment	Authorities may attach any property mentioned in the application with the permission of the Special Court.  The attachment will continue for 180 days, which may be extended by the Special Court.  They may provisionally attach any property without the permission of the Special Court, if they file an application before the court within 30 days.
Notice	The Special Court will issue a notice to the individual: (i) requiring him to appear at a specified place on a date which is at least six weeks after the issue of notice, and (ii) stating that a failure to appear will result in him being declared an FEO.  Notice may also be served at the individual’s email address recorded in the PAN or Aadhaar databases.
Proceedings	If the person appears, the Special Court will terminate proceedings.  If the person does not appear in person, but is represented by his counsel, the Special Court may allow the counsel a week to file a reply.  If, at the conclusion of proceedings, the person is found not to be an FEO, his attached properties will be released.
Declaration	If the person does not appear in person or through his counsel at the stipulated time, the Special Court will proceed with hearing the application.  After hearing the application, the Special Court may declare the person an FEO.
Confiscation	The Special Court may confiscate properties of an FEO which are proceeds of crime, benami properties, or any other properties.  These properties may be in India or abroad.  The Special Court may exempt certain properties from confiscation where any other person has a legitimate interest in them.  Upon confiscation, all rights and titles in the property will vest in the central government, free from encumbrances (claims or rights in the property).  The central government may dispose these properties after 90 days. Proceeds of crime will include properties (or equivalent value), which have been obtained by committing a scheduled offence.  The standard of proof shall be “preponderance of probabilities”.
Bar on civil claims	Any court or tribunal may bar an FEO from filing or defending any civil claim before it.  The court may bar a company or a limited liability partnership from filing or defending any civil claim if the promoter, key managerial personnel (such as manager, managing director, or CEO), or majority shareholder has been declared an FEO.
Appeal	Appeals against the orders of the Special Court will lie before the High Court.  Such appeals can only be filed within 30 days of the order (extendable to 90 days if the High Court is satisfied with the reasons for delay).

Extradition Act, 1962

Section 2(d) “extradition treaty” means a treaty 5 [,agreement or arrangement) made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty 5 [,agreement or arrangement] relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India;

Section 2(f) “fugitive criminal” means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State;

Further Ministry of External Affairs guidelines can also be checked to know more about extradition from India

Official Definition in other documents’

• United States Code (18 U.S.C. § 1073):

"A person who is in flight or hiding to avoid prosecution, custody, or confinement after being charged with or convicted of a crime, as defined in Section 1073 of Title 18 of the Fugitive Felon Act,1780

• Federal Bureau of Investigation (FBI) Definition (28 CFR § 0.85)(d):

"A person who is evading or fleeing from law enforcement or the judicial process, as described relating to any foreign counterintelligence matter.

in Section 0.85 of Title 28 of the Code of Federal Regulations."

• Interpol Definition (Article 2, Interpol Constitution):

Article 2 seeks assistance among all the criminal police authorities for a person who is wanted by law enforcement agencies for serious crimes and is hiding or fleeing to avoid arrest."

• Interpol's General Assembly Resolutions:

Resolution AGN/67/RES/5 (Fugitive Investigation): "Requests member countries to provide assistance in the location, identification, and apprehension of fugitives."

• US Immigration and Customs Enforcement: In the official handbook under chapter 3(3.3) Fugitive is defined as an individual who  is the subject of an outstanding federal criminal arrest warrant as a result of an 01 investigation/indictment and who has not yet been taken into custody .

• International Criminal Court's Rome Statute (Article 89(1)):

As per this article, a person who is wanted for prosecution or punishment for international crimes and is hiding or fleeing to avoid arrest, has to be surrendered under Article 89(1) of the Rome Statute to the Court.

• United Nations Convention against Transnational Organized Crime (2000) : As per Article 16, the term "fugitive" has not been directly used but it is used to describe a person wanted for prosecution or to serve a sentence under Article 16 and available for extradition for serious crimes.

• Interpol's Red Notice

An Interpol Red Notice is a global alert issued by Interpol (International Criminal Police Organization) to request the arrest and extradition of a fugitive. The Manual on Mutual Legal Assistance and Extradition can also be looked into for further details.

1. Issuance: Interpol's General Secretariat issues a Red Notice at the request of a member country.

2. Purpose: To seek the arrest and extradition of a wanted person for serious crimes, such as:

   - Murder

   - Terrorism

   - Human trafficking

   - Drug trafficking

   - Financial crimes

3. Global alert: Shared with all Interpol member countries (currently 195).

4. Information: Includes the fugitive's identity, photo, biographical data, and details of the crime.

A Red Notice is a request for cooperation, not a binding arrest warrant. It Is important to note that a  Red Notice is a formal request for provisional arrest and extradition but a Diffusion is a request for information or assistance. To have more idea on the distinctions, one can rely on the research where these can prove to be effective toolkits for INTERPOL.

The country where the fugitive is arrested decides whether to extradite them to the country issuing the Red Notice. Red Notices facilitate cooperation among countries to combat transnational crime.

Official Definitions in Case Laws

• United States: In United States v. Singleton, the court addressed the issue of fugitives and the legal implications of being labelled as such. The ruling underscored the necessity for law enforcement to follow due process when pursuing individuals who are evading arrest, although it did not specifically use the term 'proclaimed offender.'
• United Kingdom: In Regina v. Governor of Pentonville Prison, Ex parte Osman, the Court of Appeal dealt with the implications of being a 'wanted person' and the legal processes involved in extradition. The case highlighted the importance of proper legal procedures in the arrest of individuals sought by law enforcement, although it did not establish a formal definition akin to 'proclaimed offender.'
• Australia: In Regina v Zhang, the New South Wales Court of Criminal Appeal examined the legal status of individuals labelled as 'fugitives' and the implications for their rights during arrest and extradition processes. The case reinforced the need for adherence to legal standards when dealing with individuals evading law enforcement.
• Canada: In Regina v Smith, the Supreme Court of Canada addressed the rights of individuals who are considered 'wanted persons.' The ruling emphasised the importance of due process and the legal obligations of law enforcement when pursuing individuals evading arrest, although it did not specifically reference the proclaimed offender 'proclaimed offender.'

Research that engages with Fugitives

India’s challenges in extraditing fugitives from foreign countries

With the advent of globalisation and increased interconnectivity, it has become less difficult for offenders in India to escape to foreign jurisdictions and avoid prosecution in the country. The importance of extraditing fugitives and bringing them before Indian courts cannot be stressed enough. Apart from providing timely justice and grievance redressal, it also serves as a deterrent against potential fugitives. However, India’s success rate in extraditing fugitives is abysmally low; only one in every three fugitives are being successfully extradited to India. This brief examines the extradition treaties that India has with various countries, and gives an overview of India’s successes and failures in securing the return of offenders. It also studies both the legal and non-legal obstacles to extradition, and offers recommendations to improve India’s extradition process.

How do countries deal with fugitives? Or how do they bring fugitive criminals to justice?

The concept of extradition advances the principle that no person should escape the reach of the law merely by using influence, power and finances to take refuge in a foreign jurisdiction. If India adopts an aggressive approach towards extradition, we can go a step further in ensuring that the Mallyas and Modis of the world answer to the legal system for their crimes.

Way Ahead

Need for fugitive task force

In spite of binding treaty mechanisms, the process of extraditing fugitives is lengthy, complex and heavily depends on domestic law and politics of the requested state. This is not surprising as extradition is, after all, a sovereign decision. Nonetheless, there are factors involved in extradition over which India can exercise control. India could adopt a targeted approach to resolve these issues, and thereby improve its success rate.

Leveraging diplomacy and bilateral negotiations to persuade countries to process requests expeditiously, is an important step. Likewise, India should, on the basis of reciprocity and comity process extradition requests received from foreign states swiftly and efficiently. Additionally, the Indian government must make good on its policy “to conclude extradition treaties with as many countries” as possible, and make efforts to enter into more bilateral extradition relations. Other mechanisms that can facilitate arrest and extradition of offenders, viz. mutual legal assistance treaties, issuing letters rogatory and information exchange MoUs can be utilised where necessary. Preventive law and policy measures that can deter the escape of offenders, may also be explored. The recently passed Fugitive Economic Offenders Bill, 2018 – though not without its own challenges – signifies the government’s efforts to shift its focus to preventive, ex ante legal mechanisms. These steps will allow India to act quickly and reduce the number of safe havens available for fugitives abroad.

India also needs to take steps to dispel concerns regarding poor prison conditions and potential human rights violations of the requested person. Assurances by the Indian government regarding the same are often not accepted by foreign courts. As a short-term measure, India could propose to detain surrendered offenders to prisons with better facilities. Fugitives who are not accused of violent crimes, such as economic offenders can be housed in well-maintained, minimum-security facilities. However, in the long run, it is prudent to take coordinated action to introduce systematic prison reforms and convert Indian prisons into a secure area for rehabilitation. Additionally, India could consider signing international instruments, such as the UN Convention Against Torture (1984) to establish India’s zero tolerance towards torture and custodial violence. At the same time, the increasing application of human rights concerns to extradition requests calls for the formulation of rules that achieve a fair balance between crime suppression and the fugitive’s protection.

For addressing investigational delays, it is imperative to improve the capacity and organisational efficiencies of law enforcement agencies so that they may conduct speedy investigation in these cases. At present, multiple extradition cases such as those related to money laundering, terrorism and economic offences, are either taken up by the CBI or sent to the CBI, by the state police, for investigation. The CBI was created to deal with corruption cases, and is understaffed to take up larger cases involving extradition. The Justice Malimath Committee report (2003) recommends setting up a Central Agency, on similar lines with the Federal Bureau of Investigation (USA), to exercise jurisdiction over crimes and offences affecting national security. The US’ FBI, which employs roughly 35,000 individuals, has wide jurisdiction to investigate organised crime, white-collar crime and terrorism, among others. The CBI, on the other hand, staffed with approximately 6,000 officers[lxiv] may be unable to expend the required manpower to complete investigations on time.

To ensure that India’s extradition requests are in compliance with treaty conditions and documentary requirements, India must put in place suitable organisational mechanisms to familiarise itself with laws and regulations of treaty states. India could adopt the good practices of the US’ Office of International Affairs (OIA), Washington’s primary body to handle extradition requests, and employ lawyers and station trained liaison officers in countries with which the country has extradition relations.[lxv] Publishing templates for framing extradition requests and adopting standards for the maintenance of extradition files, will improve the synergy between the MEA and law enforcement agencies. Setting up a separate cell to provide expert legal advice and assistance on drafting, certification and translation of evidence, will help mitigate the possibility of rejection of requests.

With the benefits of globalisation and integration comes the pressing challenge of offenders fleeing India. Given the obstacles India faces in securing the return of these fugitives, the country must swiftly introduce reforms and leverage diplomacy to create a simpler, frictionless extradition mechanism.

Reconsideration of Specific Provisions

Further, GoI needs to reconsider certain provisions of the FEOB considering the legislation makes an arbitrary distinction by virtue of which only offences involving sums over Rs 100 crore will attract the FEOB’s provisions. To substantiate this, GoI has expressed its concern for the ‘over-burdened judiciary’.

What GoI considers to be a genuine ‘deterrent’ is the provision in the Bill of the confiscation of the offender’s property. Once the court passes an order to this effect, the state agencies are entitled to proceed with the sale of these properties. It is, however, a well-established principle of law that aperson is innocent until proven guilty. The provision of selling the property on the mere declaration of a person as a fugitive economic offender and without a proper trial violates this principle.