As Julian Assange’s extradition appeal begins this week in London, the British government is considering a parliamentary review which recommended drastic changes to the European Arrest Warrant legislation. Widely regarded as a seriously flawed instrument, the extradition mechanism that will decide Assange’s immediate future was agreed to immediately after September 11, 2001. Its purpose was to enable speedy prosecution across Europe of suspects wanted for terrorism and serious crime under a warrant that could be honored with minimal scrutiny.
There are two serious problems with the way this law operates: the failure to protect the human rights of the accused, such as a guarantee of a fair trial; and its misuse. A vast number of warrants have been issued, predominantly to prosecute trivial offences or matters that would be regarded as civil matters in Britain.
Requesting states do not even need to provide any evidence. And for 32 listed crimes there is no requirement to prove double criminality. That is, the alleged conduct need not be regarded as a crime in the country from which an accused is extradited. If one European Union state provides a different definition of an offence but the same conduct would not meet the definition of the offence in the other country, the person will still be extradited.
Poland issued 5000 warrants in 2008. People have been trawled through the legal system for crimes such as stealing chickens – as in the case of a person extradited to the Czech Republic.
Clearly there has been no respect for the principle of proportionality in the application of the law. David Blunkett, the British home secretary who presided over the law’s introduction, says the system needs reform: ”When we agreed to the system we believed people would act rationally.”
A British resident, Jacek Jaskolski, successfully defended a warrant issued by Poland for exceeding his overdraft limit, but the warrant has not been withdrawn, limiting his ability to visit other European countries without fear of arrest.
Even if an individual can successfully defend a warrant, the country seeking his surrender is under no obligation to remove the outstanding warrant. Should Assange successfully resist the warrant issued by Sweden, there is no guarantee he would not face a similar fate.
The treaty needs to be amended to remove this adverse consequence.
The human rights group Fair Trials International says there are many cases in which serious injustices have resulted, such as people serving prison sentences after an unfair trial or being held in detention for years before they can appear before a court to establish their innocence.
A British citizen, Andrew Symeou, was extradited to Greece in 2009 and charged with manslaughter over the death of a man two years earlier. Despite compelling evidence of mistaken identity and the retraction of statements by witnesses who alleged police intimidation, Symeou remained in jail for 11 months before he was released on bail and bound to remain in Greece awaiting his trial.
Two weeks ago, after a four-year ordeal, he was acquitted by a jury, his parents having spent their savings to support his case in the intervening years. The prosecutor himself recommended Symeou be acquitted.
In Assange’s case, the original prosecutor, Eva Finne, declared there was no rape case to answer, despite the far broader definition of rape in Swedish law than in Britain. There is no provision for bail under Swedish rape laws, so Assange would remain in jail until the Swedish prosecution case is heard, however long that takes. The miscarriage of justice in Symeou’s case would have been avoided if appropriate scrutiny of the evidence by a court in the country granting the extradition were a requirement.
Assange is fighting extradition for a crime that does not exist in Britain. Under Swedish law, rape is not about the withdrawal of consent but rather is defined by the use of physical force in acts of sex. Rape is a category one crime under the European Arrest Warrant regime, though Assange’s case involves the most minor version of this charge under Swedish law.
Assange’s lawyers say it is unlikely he could be prosecuted on the alleged facts under British law. The magistrate who heard the case said the behaviour would be an offence in Britain, but Britain’s leading criminal lawyer, Professor Andrew Ashworth, disagreed.
Only proper scrutiny of the evidence could determine who is right. But that would be immaterial in any case, as there is no double criminality requirement for rape. If a country ticks the ”rape” box, it doesn’t matter if ”minor rape” as defined by Sweden is not a crime in Britain. Moreover, Assange will be tried in a closed court in a case he believes is politically motivated. How will the world scrutinize proceedings under those circumstances?
Blunkett admits he was not sensitive enough to potential problems. Such oversights have taken a terrible toll on people caught in a system with no proper safeguards, including Assange, an Australian citizen.
The majority of this article was written by Mary Kostakidis and published by the Sydney Morning Herald on July 11, 2011.
Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.
The author of this blog is Douglas McNabb. Please feel free to contact him directly at firstname.lastname@example.org or at one of the offices listed above.