Sleepwalking into Dangerous Territory

Lizzie O'Shea and Jen Robinson

Failure of the European Arrest Warrant framework from a human rights perspective

Julian Assange is the most well-known person in the world currently facing extradition. His case highlights some concerning developments in the law of extradition, in particular, the system of European Arrest Warrants (‘EAW’). Whatever the merits of the case against Assange under Swedish law, like everyone facing an EAW, he has every right to challenge the basis of his extradition. His case provides an insight into the more general problems of EAWs, which should concern all human rights advocates, extradition practitioners and policy-makers. Such insights may serve as a warning in Australia of what might happen if an overly expedient approach is taken to extradition treaty provisions.1

Extradition under international law

At international law, there is no duty on states to extradite individuals for the purpose of carrying out criminal proceedings in another country. But it is also a recognised principle of international law that states have legal authority over individuals within their geographic borders and can have mutual treaty obligations to extradite requested individuals. As such, a web of bilateral and multilateral treaties has emerged over time as circumstances have increasingly required a multi-state approach to crime. Issues that have motivated this include the increase in trans-national crime, particularly in the digital age (and an increased capacity of enforcement agencies to police it) and the rise of the perceived threat of terrorism.2

Australia, like most states, has a raft of bilateral treaties with different countries which determine whether an individual can be extradited from Australia.3 Some countries have developed multi-lateral treaties in respect of extradition. The most obvious example is the EAW system which applies to members of the European Union (‘EU’).

These treaties, as a body of international law instruments, have generally shared a range of underlying principles. As evidence of state practice, these shared principles arguably form the basis of customary international law. The principles include:4

1.    the concept of double criminality: that the offence is really an offence in both the requesting and requested countries;
2.    speciality: that the person who is extradited may only be prosecuted with the offence for which the extradition was granted;
3.    political prosecutions: many countries will not surrender an individual if the proceedings are tainted by inappropriate political considerations;
4.    the possibility of certain forms of punishment: most states will not surrender an individual if there is a substantial risk that they may face torture.
       Many countries also refuse to allow extradition to a country where the individual may face the death penalty;
5.    jurisdiction and citizenship: a state may refuse to extradite its own citizen as a rule. In such a situation, the state may have jurisdiction to prosecute
       the alleged crime itself, if there is a suitable extra territorial crime;
6.    the possibility of a breach of human rights: a state may elect to refuse extradition if the result may be a breach of human rights (which also relates
       to 4 above); and
7.    prima facie case: whether there is sufficient evidence to demonstrate there is a prima facie against the accused.

These principles and corresponding jurisprudence were developed to protect the individual from the exercise of arbitrary power by the state and preserve the sovereignty of participating states. An effective system of extradition will recognise the need for those accused of crimes to face justice, but balance this with safeguards to ensure respect for procedural fairness and confidence in the criminal justice system of the requesting authority.

The EAW framework

After several years of preparation, the EAW framework was adopted in 2006.5 The foundations of the system were established shortly before 9/11, the events of which ‘rapidly catapulted’ it to completion.6 In short, it was rushed through in the wake of the terrorist attacks in late 2001. In this climate of fear, there was a call for authorities to be given greater capabilities to prosecute terrorism offences. Historically, members of the EU have had a clear interest in building on the co-operative basis which sits at the heart of the political project. As one scholar noted, prior to 2001 there was a tendency for ‘extradition within the EU to be slow, complex and political in nature — unsuitable for the frontier-free European judicial space to which the European Union aspires’.7

A shared understanding and respect for legal and political processes among members underpinned the EAW system (‘mutual recognition’). The system has created categories whereby, when certain crimes are alleged (ie serious crimes deemed extraditable offences: Framework List offences), the requirement of double criminality has been removed. Additionally, the EAW system also relaxes the requirement that states show a prima facie case against the accused. The human rights considerations have also been eased on the basis that a transfer within Europe means the accused will have recourse to the European Court of Human Rights (‘ECHR’).

The EAW framework may seem just a natural next step in the development in the law of extradition, especially given the co-operative nature of the EU and the principle of mutual recognition between EU states. However, there are good reasons why the law of extradition has traditionally prioritised the protection of the individual over expediency. Pressure to create a system based on mutual recognition, which was fast and efficient, meant that the concerns of individuals and their circumstances came a distant second. For many, including Assange, this has had devastating human consequences and raised serious questions about the integrity of the system.

Problems with EAWs: Assange as a case study

Assange’s case provides an instructive example of the problems with the EAW framework. He is now fighting extradition for crimes that do not exist in the UK — or in Australia, for that matter. The four accusations are unlawful coercion, two counts of sexual molestation and ‘minor rape’ as described under Swedish law.
The EAW system classifies crimes into categories according to seriousness, with the 32 Framework List offences deemed the most serious. These Framework List offences are deemed to be extraditable offences, removing the test of double criminality.8 Neither unlawful coercion nor sexual molestation constitute Framework List crimes. Assange is therefore able to make arguments about double criminality: namely, that the conduct alleged by Sweden would not amount to a crime in England. The fourth allegation however, is classified as rape, which is a Framework List offence and therefore the Swedish authorities are not required to satisfy the double criminality requirement.

Under English and Australian law, rape is based on consent and the accused’s reasonable belief as to consent. There is no allegation in this case that either woman said ‘no’ to Assange nor is it alleged that he did not believe them to have consented to the sexual interaction. In Sweden, the crime of sexual molestation is based on whether sexual integrity is deemed to have been harmed. Rape and the problematically described offence of ‘minor rape’ are not based on the notion of consent: they are based on the use of physical force in acts of sex. This definition has been expanded over time, in recognition of the fact that rape does not always involve physical coercion, to now include ‘minor rape,’ ie where the woman could be deemed to have been in a ‘helpless state’. But because Sweden ticked the Framework List ‘rape’ box on the EAW, Assange cannot argue about whether the conduct alleged in the fourth allegation would amount to a crime and be prosecuted under English law, which is, in fact, unlikely.9

Moreover, Assange may have concerns about being tried in a closed court, which Sweden permits in sexual assault cases, in a judicial system in which lay judges (jurors) are appointed by political parties. Important provisions in Australian law exist to protect complainants in sexual offences cases, such as anonymity through the use of video-link testimony. However, in Sweden, all press and public are excluded, a clearly disproportionate interference with the right to a public trial and a possible breach of Article 6 of the European Charter of Human Rights. But any concerns about human rights under the EAW Framework must be taken up in the ECHR. This serves as cold comfort, as applicants must wait up to five years to have their matter heard. The future possibility of an ECHR application comes far too little too late: any application would be heard long after Assange had completed his potential jail term in Sweden. Despite this practical reality, as commentators have noted, the possible breach of the European Convention on Human Rights has ‘generally proved a fruitless ground of challenge’.10 To successfully resist extradition under the Framework, based on human rights concerns, is immensely difficult. The high bar in respect of the human rights violation is nearly impossible to meet, an issue which was criticised in the recent UK Parliamentary review of the human rights implications of UK extradition policy.11

Assange is a high profile prisoner. His experience has brought to light the widespread problems with EAWs, a campaign which has, until now, been less than high profile. There is a litany of troubling stories about EAWs. Edmund Arapi, a UK resident, was tried and convicted in absentia of the killing of Marcello Miguel Espana Castillo in Genoa Italy in 2004.12 This is despite the fact that Arapi had not left the UK at all between 2000 and 2006. Arapi was arrested by British authorities enforcing an EAW from Italy. It was unclear whether Arapi would be able to secure a retrial, but it was likely he would be held on remand for years awaiting the outcome of such an application. The EAW was granted by the English courts in 2010. On the day of Arapi’s appeal to the High Court, Italian authorities agreed to withdraw the EAW. But it was only after extensive lobbying efforts by NGOs that the Italian authorities admitted they had sought Arapi in error.

The consequences of a rush job: 
other problems of implementation

There are also problems with the idea of proportionality in the context of the EAW Framework. A Polish grandfather in fragile health, Jacek Jaskolski, was sought on an EAW to face trial for ‘theft’ in Poland. The allegation related to a withdrawal made by Mr Jaskolski from his bank which took him over the agreed overdraft limit.13 The debt was repaid to the bank after Mr Jaskolski’s home was repossessed and sold. Mr Jaskolski moved to the UK in 2004. In 2010, British police arrested Mr Jaskolski, pursuant to an EAW issued by Poland. Fortunately, Mr Jaskolski prevailed in his hearing in April 2011.14

The situation in Poland provides an example of one of the problems of rushing through a multi-lateral treaty such as the EAW regime. Some member states, including Poland, are required by their constitution or criminal law to take all steps to prosecute every offence committed.15 The EAW is one such tool for prosecuting offences. This results in overuse of the system for minor offences, such as Mr Jaskolski’s experience.16 In 2009, Poland issued 4844 EAWs; the UK issued just 220. Among other concerns, this causes immense strain on police resources.

Furthermore, even if an individual can successfully defend an EAW, the country seeking extradition is under no obligation to remove the outstanding warrant. This means that — even if Assange successfully defeats extradition from the UK — he could be prevented from travelling around Europe for fear that Sweden may seek to extradite him from another European country. Deborah Dark, a British grandmother, experienced this problem. In 1989, she was arrested on suspicion of drug-related offences in France. She was acquitted at trial and returned to the UK. Unbeknown to her or her French lawyer, the prosecution appealed the decision and, with no defence, she was convicted and sentenced to six years imprisonment. In 2005, fifteen years after her trial, an EAW was issued for Dark to be returned to France to serve her sentence. In 2008, she was arrested while travelling in Spain and faced extradition to France. After a month in custody, she successfully defended herself in a Spanish court on the grounds of unreasonable delay and returned to the UK. Upon arrival in the UK, she was arrested again by British police seeking to enforce the EAW. Dark successfully resisted the extradition again, with the British court refusing to extradite in April 2009. France finally agreed to remove the EAW in May 2010.

Thus while states have obligations to extradite under the framework, should a person succeed in preventing extradition there is no obligation on the part of the state to remove the warrant. Dark was effectively a prisoner in the UK, unable to travel for fear of being re-arrested. Indeed for Mr Jaskolski, the EAW has still not been withdrawn, limiting his ability to travel within Europe. There is no guarantee that, should Assange successfully resist the EAW issued by Sweden, he would not face a similar fate. It is clear that the treaty needs to be amended to remove this adverse consequence, a recommendation made by the recent UK Parliamentary review.17

Mistakes of the past, prospects for the future

When the EAW system was introduced, it would be fair to describe the law of extradition as undergoing a ‘radical and unnoticed reform’.18 The EAW system significantly undermined, or dispensed with entirely some of the key protections that have developed in customary international law available to individuals. The EAW framework was a rush job: a knee jerk legislative reaction to the existential threat of terrorism. Almost inevitably therefore, it has proven unwieldy, costly and troubling from a human rights perspective. The implications of the framework, like so many anti-terror initiatives, ‘scarcely seem to have been considered (or, worse, if considered, disregarded)’.19

Part of the problem is that the idea of applying mutual recognition to a criminal justice context is inappropriate, as errors can produce a human cost which is high. Criminal law across the EU has an array of viewpoints, traditions and procedures. As such, it is ill-fitted to the model of mutual recognition: ‘[t]here is no single market in justice’.20 David Blunkett, UK home secretary at the time the system was introduced, now admits it could be done better. Blunkett concedes that he was ‘insufficiently sensitive’ to the potential problems. Such oversights have taken a terrible toll on people who have been caught up in a system without proper safeguards.

The EAW is designed to be part of an ambitious program of harmonisation of criminal justice across the EU. The European Evidence Warrant came into effect in January 2011. Like the EAW, it requires Britain to give automatic recognition to search warrants issued by other European states.21 Fortunately, it seems that governments are starting to turn their minds to the problems of these treaties as evidenced by the recent UK Parliamentary Review. Such a review is a sign that things may be moving in the right direction, especially now that the Assange case is highlighting the problems of these treaties.

The case of Assange is significant for a variety of reasons, one of which is highlighting the danger of the EAW framework. The system is a product of poor drafting in response to the politically nebulous threat of terrorism. The history of the EAW framework highlights the need to be cautious of such harried reforms, as legal protections once lost may be hard to regain and come at a high human cost. Australian human rights advocates should take heed, both to be aware of the dangers of any potential reforms to Australian extradition law as well as to understand Assange’s legal plight and the difficulties he faces in defending himself.

LIZZIE O’SHEA is a Melbourne-based lawyer working on public interest litigation and specialising in human rights and administrative law.

JEN ROBINSON is a London-based Australian human rights lawyer and Rhodes Scholar. She acted for Julian Assange in extradition proceedings in London and advised WikiLeaks during Cablegate.

© 2011 Lizzie O’Shea and Jen Robinson

 

REFERENCES

1. Australian extradition agreements and legislation are currently under review by Parliament: see Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 (Cth). Thus not only is there general interest in Assange’s plight, the issue of extradition is also of interest 
to legislators and policy-makers at home 
at the moment.
2. Maya Sikand, ‘An introduction to the European Arrest Warrant: a new judicial landscape?’ (2004)(4) Archbold News 7.
3. See Department of Foreign Affairs and Trade, Australian Treaties Library — by Country, www.austlii.edu.au/au/other/dfat/countries/ at 18 August 2011.
4. Gillian D Triggs, International law contemporary principles and practices 
(2nd ed, 2011), 465–466.
5. Ilias Bantekas, ‘The principle of mutual recognition in EU criminal law’ (2007) 32(3) European Law Review 365, 378.
6. Alicia Hinarejos, ‘Recent human rights developments in the EU Courts: the Charter of Fundamental Rights, the European arrest warrant and terror lists’ (2007) 7(4) Human Rights Law Review 793, 795.
7. Sionaidh Douglas-Scott, ‘The rule of law in the European Union — putting the security into the EU’s area of freedom, security and justice’ (2004) 29(2) European Law Review 219, 228.
8. In respect of pre-conviction cases such as Assange, if an offence appears in the Article 2(2) list of the Framework Decision, and is punishable with imprisonment of 3 years or more in the issuing state, it qualifies as an extradition offence and no double criminality analysis is required. See sections 10, 64 and Schedule 2 of the Extradition Act 2003. This aspect of the Act is the most radical change to extradition procedure and the most controversial part of the Framework Decision. The old double criminality rule meant no one could be extradited for conduct not criminal in both the requesting state (now ‘issuing state’) and the requested state (now ‘executing state’).
9. See expert opinion of Professor Andrew Ashworth CBE, QC (Hon), Vinerian Professor of English Law, University of Oxford: www.fsilaw.com/news-media/news/28-julian-assange-case-papers/ 
at 18 August 2011.
10. Eoin Carolan, ‘Reciprocity and rights under the European arrest warrant regime’ (2007) 123 Law Quarterly Review 197, 198.
11. Human Rights Joint Committee — Fifteenth Report, ‘The Human Rights Implications of UK Extradition Policy’ 7 June 2011, see for example paras [33]–[35], [38], [41] www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15602.htm at 18 August 2011.
12. Fair Trials International, Report: The European Arrest Warrant seven years on — the case for reform, May 2011, 20.
13. Ibid 15.
14. Fair Trials International, Case: Jacek Jaskolski, www.fairtrials.net/cases/article/jacek_jaskloski at 18 August 2011.
15. Fair Trials International, above n 12, 4.
16. Joachim Vogel, Proportionality and the European Arrest Warrant (2010) Criminal Law Review 6, 474, 481.
17. Human Rights Joint Committee, above n 11, see paras [170]–[174].
18. Sikand, above n 2, 7.
19. Colin Warbrick, ‘The European response to terrorism in an age of human rights’ (2004) 15(5) European Journal of International Law 989, 1016.
20. Douglas-Scott, above n 7, 227.
21. See Afua Hirsch, ‘The Julian Assange case: a mockery of extradition?’ The Guardian (UK), 14 December 2010 www.guardian.co.uk/commentisfree/libertycentral/2010/dec/14/julian-assange-european-arrest-warrant at 18 August 2011.

(2011) 36(3) AltLJ 146
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