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. 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 often mobile, traveling across borders (sometimes using stolen or fraudulent travel documents) and opportunistic, often financing their continued flight from the law through further criminal activities.

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." Fugitive derives from Latin "fugitivus," meaning "one who flees," from "fugere" ("to flee"). It combines the root "fug-" ("to flee") with the suffix "-itive," signifying a person who performs the action of fleeing or escaping.

Official Definitions of Fugitive

Term' as defined in legislation(s)

The Fugitive Economic Offenders Act, 2018

The Fugitive Economic Offenders Act, 2018 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 owned by the individual and properties 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) has been abroad, refuses to return to India to face criminal prosecution;"

The list of Scheduled Offences 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, among several other laws that deal 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 a fugitive economic offender (FEO) if: (i) an arrest warrant has been issued against him for any specified offences where the value involved exceeds 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 the date of issue of the 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 the 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.

The Extradition Act, 1962

Section 2(d) of the Extradition Act, 1962 act lays out the definition for “extradition treaty”, which reads as "a treaty (agreement or arrangement) made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty (,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) states that a “fugitive criminal” means any 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 International 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.

• US Immigration and Customs Enforcement:

In the official Fugitives Handbook under chapter 3(3.3) defines fugitive 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.

• 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 serves as a global alert, requesting law enforcement in its 195 member countries to locate and provisionally arrest a fugitive pending extradition or surrender. Issued by Interpol's General Secretariat upon the request of a member country, a Red Notice is always based on a valid national arrest warrant for serious crimes like murder, terrorism, or large-scale fraud.

It is crucial to understand that a Red Notice is not a binding international arrest warrant; each country decides for itself what legal value to give the notice and whether its domestic laws permit an arrest based upon it. The final decision to extradite the individual rests solely with the authorities in the country where the fugitive is located. To prevent the system from being used for political persecution, Interpol's constitution mandates neutrality, and all requests are reviewed to ensure they are not politically motivated. This function is distinct from other alerts, such as a Blue Notice, which is used to collect additional information about a person’s location or activities, not to request an arrest.

Official Definitions in Case Laws

• United States: In the case of United States v. Singleton, The court addressed the issue of fugitives and the legal implications of being labeled 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 the case of 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 similar to 'proclaimed offender'.
• Australia: In the case of 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 term 'proclaimed offender'.

Classification of Fugitives

Fugitives are categorized by law enforcement agencies based on various factors to prioritize their investigation, allocate resources, and determine the appropriate level of international cooperation. These classifications range from the nature of the crime to the methods used to evade capture.

1. Classification by Crime Type

The most common way to classify fugitives is by the type of crime they have allegedly committed. This helps agencies focus on individuals who pose the greatest threat to public safety.

FBI Crime Categories: The U.S. Federal Bureau of Investigation (FBI) investigates and seeks fugitives across several major crime programs. These include, but are not limited to:

• Violent Crimes (including Murder)
• Crimes Against Children
• White-Collar Crimes
• Cybercrime
• Counterintelligence
• Human Trafficking
• Criminal Enterprise Investigations (CEI)

White-Collar Crimes: These are non-violent, financially motivated offenses committed for personal or business gain. They often involve complex deception, fraud, or an abuse of trust.

Criminal Enterprise Investigation (CEI): This refers to inquiries into organized crime groups. In the U.S., the Racketeer Influenced and Corrupt Organizations (RICO) Act, (18 U.S. Code § 1961-1968) defines a "criminal enterprise" as any group whose activities affect commerce and which is engaged in a "pattern of racketeering activity."

Counterintelligence Fugitives: These are individuals wanted for crimes against national security. While not a formal FBI list, this category includes fugitives accused of espionage, such as:

• Espionage Agents: Individuals who illegally gather and transmit defense or classified information.
• Moles: Insiders who provide secret information to a foreign power.
• Double Agents: Those pretending to spy for one country while actually working for another.
• Defectors: Individuals who have switched allegiance to a foreign power.
• Cyber spies

2. Classification by Jurisdictional and Legal Status

How and where a fugitive is wanted determines the agencies and legal tools involved in their capture.

Jurisdictional Status: This defines the geographic scope of the manhunt.

Domestic (Local, State, National): A fugitive sought within a single country's borders. The U.S. Marshals Service, for example, operates regional task forces to apprehend federal, state, and local fugitives across the United States.

International: A fugitive who has crossed national borders. Their capture requires international cooperation, often facilitated by organizations like INTERPOL.

Legal Status: This classification is based on the fugitive's stage in the criminal justice process.

• Pre-Trial Fugitives: Individuals who flee to avoid prosecution before a trial has concluded. The U.S. Marshals Service often refers to those who fail to appear in court as "absconders."
• Post-Conviction Fugitives: Individuals who escape from custody after being convicted of a crime. These are often termed "escapees."

The European Arrest Warrant (EAW): Within the European Union, a fugitive is defined under the EAW framework as a person subject to an arrest warrant for prosecution or execution of a custodial sentence for an offense carrying a maximum penalty of at least 12 months in prison. This system replaces traditional extradition procedures between EU member states.

3. Classification by Threat Level and Evasion Methods

Agencies also categorize fugitives based on the danger they pose and the tactics they employ.

Risk and Threat Level: This is used to prioritize the most dangerous individuals.

Europol's Most Wanted List: Maintained by the European Network of Fugitive Active Search Teams (ENFAST), this list features fugitives wanted for grave offenses like terrorism, murder, and drug trafficking who pose a significant threat to public safety.

INTERPOL Notices: INTERPOL uses a color-coded notice system to share information between member countries. A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition or similar legal action. It is issued for fugitives wanted for prosecution or to serve a sentence. A Blue Notice is used to collect additional information about a person's identity, location, or activities in relation to a criminal investigation.

Type of Evasion: This classification considers the methods a fugitive uses to avoid capture. U.S. Immigration and Customs Enforcement (ICE) notes that fugitive aliens may use sophisticated techniques such a:

• Creating fraudulent identity documents.
• Frequently moving to new locations.
• Fleeing to countries with no extradition treaty.
• Using ruses and deceptive methods to conceal their identity from law enforcement.

Appearance on Databases

Fugitive Most wanted in different categories ( Crimes against Children, Violent Crimes, Counterintelligence, 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

Research that engages with Fugitives

India’s Challenges in Extraditing Fugitives from Foreign Countries

This research analyzes India's significant legal and non-legal challenges in extraditing fugitives, which contribute to a low success rate, particularly for economic offenses. It provides a critical analysis of India's extradition framework, highlighting systemic challenges, the impact of human rights considerations in foreign jurisdictions, and the need for broader treaty networks to combat transnational crime effectively. It analyses India's low success rate in extraditing fugitives, attributing it to both legal and non-legal challenges. It highlights how the "dual criminality" principle in treaties, grounds for refusal like human rights concerns, and the lack of treaties with key neighbors hinder India's efforts to bring back fugitives, especially those accused of economic offenses.

Extradition Law: Bringing Fugitive Criminals To Justice

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

This article explains India's legal framework for extradition, primarily governed by the Extradition Act of 1962, and outlines the process for bringing fugitive criminals back to face 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 capitalist's of the world answer to the legal system for their crimes. This piece explains India's legal framework for extradition, which is governed by the Extradition Act of 1962 and supported by bilateral treaties. The article clarifies the roles of the Ministry of External Affairs in this process and advocates for a more assertive approach to extradition.

Way Ahead

Need for a 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

A significant point of contention regarding India's Fugitive Economic Offenders Act is the provision allowing for the immediate confiscation and sale of an offender's property. The Government of India views this measure as the primary deterrent within the legislation. Once a court declares an individual a fugitive economic offender, state agencies are empowered to sell their properties.

However, this provision faces criticism for potentially violating the fundamental legal principle that a person is presumed innocent until proven guilty. Critics argue that because the Act allows for the sale of property without a full trial and conviction, it undermines this core tenet of justice.

Furthermore, debate surrounds the Act's scope, which is limited to offenses involving sums over Rs 100 crore. This monetary threshold has been described as an arbitrary distinction. In response, the government has cited concerns about overburdening the judiciary, suggesting the high threshold is necessary to focus resources on the most significant cases.