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Home Archive for category "Extradition"

Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR

Published on August 19, 2019        Author: 

With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.

These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.

But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.

The facts of the case

The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Read the rest of this entry…

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The Assange case and the UK’s global defence of media freedom

Published on April 15, 2019        Author: 

Human rights advocates often point to the lack of consistency and coherence between states’ stated commitments, on the one hand, and their actions, on the other. Even then, the tensions surrounding the UK’s recent approach to the goal of protecting media freedom globally and its projection seem striking.

Within less than a week, the UK government has gone from showcasing its new campaign to defend media freedom – specifically the appointment of the Foreign Secretary’s Special Envoy and a panel of legal experts “to support countries to repeal outdated and draconian laws and strengthen legal mechanisms to protect journalists”, as well as an international conference to be held in London on 10 and 11 July, co-hosted with the Canadian government (on 5 April) – to facing a chorus of warnings from wide range of human rights organisations, authorities and activists  – including the American Civil Liberties Union, Human Rights Watch, the Committee to Protect Journalists, the Knight First Amendment Institute, the UN Special Rapporteur on freedom of expression, David Kaye, and Pentagon Papers whistleblower, Daniel Ellsberg – that the UK’s possible extradition of Julian Assange to the United States to face, at the moment, a single charge of conspiracy “to commit computer intrusion” would pose a threat the lawful and legitimate activity of journalists, especially their communications with their sources, setting a “dangerous precedent” for the future prosecution of “legacy” news media organisations.

Read the rest of this entry…

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A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany

Published on February 20, 2018        Author:  and

If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”

Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in.  Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam.  Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement. Read the rest of this entry…

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The European Arrest Warrant against Puigdemont: A feeling of déjà vu?

Published on November 3, 2017        Author: 

On 2 November 2017, the Spanish State Prosecutor asked Carmen Lamela, a Spanish judge, to issue a European Arrest Warrant against Carles Puigdemont and four of his former ministers following the vote of secessionist Catalan MPs to declare independence. They face potential charges of sedition, rebellion and misuse of public funds. Carles Puigdemont, who arrived in Brussels a few days before the news of the warrant was made public, called in a Belgian lawyer to defend his case. The Spanish authorities may not be thrilled by his choice.

The Basque precedent

In 1993, Spain issued an extradition warrant against two Basque secessionists who fled to Belgium, Moreno Ramajo and Garcia Arrantz. They were accused of participating in an unlawful association and an illegal armed band. The Court of Appeal of Brussels issued an Advisory Opinion according to which, the warrant was founded on political crimes and therefore, the extradition request should not receive a favourable response. The Belgian Ministry of Justice nevertheless ruled in favour of the extradition. In the meantime, Moreno Ramajo and Garcia Arrantz lodged an asylum application in Belgium, which was received admissible for further consideration. The extradition procedure was put on hold until a final decision to reject their asylum applications was made in 1994 on the grounds that despite the fact that cases of abusive behaviours of Spanish authorities towards Basque secessionists existed, these were isolated cases. Therefore, the argument was that there was no reason to believe that the Spanish justice system would fail to provide them with a fair trial. Thus, the extradition request was pursued and accepted. Following this decision, the couple submitted a procedure of extreme urgency before the Belgian Council of State in order to stop their extradition. This was successful and their extradition did not proceed(E. Bribosia and A. Weyembergh, ‘Asile et extradition: vers un espace judiciaire européen?’ (1997)  at 73-77).

What happened after that? Read the rest of this entry…

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Extradition: English Court refuses to extradite alleged génocidaires to Rwanda–will a domestic prosecution follow?

Published on October 2, 2017        Author: 

The Divisional Court of England and Wales has dismissed the appeal of the Government of Rwanda in the high-profile extradition proceedings against five alleged génocidaires in the case of Rwanda v Nteziryayo and ors. The men will not be extradited to Rwanda to stand trial for genocide and it now appears that, if they are to be tried at all, it must be in the UK.

The judgment of the Divisional Court affirmed the decision of District Judge Emma Arbuthnot on 22 December 2015 to discharge the extradition requests on two grounds: double jeopardy–one of the requested persons had been tried in a domestic ‘Gacaca’ court—and article 6 of the European Convention on Human Rights. The Judge accepted the evidence of the requested persons that there was a real risk they might suffer a flagrant breach of their rights to a fair trial if extradited to Rwanda.

The background to this latest decision reveals the evolving measures employed by the international community to promote justice and end impunity for international crimes. 

Following the genocide in Rwanda in 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) which was intended to bring to trial those most responsible for the genocide and other serious violations of law perpetrated in Rwanda. Security Council Resolution 1824, passed on July 2008, called for the completion of the work of the ICTR by 2010. Read the rest of this entry…

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Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 

Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

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Julian Assange and the UN Working Group on Arbitrary Detention

Published on February 5, 2016        Author: 

We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).

To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.

The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.

What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.

Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion. Read the rest of this entry…

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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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The Political Offense Exception: Punishing Whistleblowers Abroad

Published on November 14, 2013        Author: 

Mark KielsgardDr. Mark D. Kielsgard, is an Assistant Professor of Law at City University of Hong Kong.

 

 

On June 14, 2013, the U.S. lodged a criminal complaint against Edward Snowden for theft of government property and espionage after he had fled the country. Snowden is seen by many as a hero and modern whistleblower. Protecting whistleblowers has become increasingly important as the U.S. has been stepping-up use of the Espionage Act of 1917 to prosecute suspected whistleblowers (Obama’s Abuse of the Espionage Act is Modern-day McCarthyism, The Guardian, Aug. 6, 2013). Government employees, contractors and journalists have voiced concern over reporting misconduct for fear of government reprisals. In light of recent developments in the U.S. and the general temptation of all governments to cut corners in the post-911 era, extradition protection for whistleblowers who seek protection abroad is essential to protect political activism and foster political change. This essay will consider the continued relevance of the political offense exception common to most extradition treaties and discuss its implications for modern whistleblowers abroad.

The U.S. seems to provide fugitives with among the lowest threshold of protection while many other states have evolved their standards. This is largely due to the antiquated interpretation of the traditional “incidence” test recognized for “relative political offenses” under U.S. law. As virtually no political offense can qualify as a “pure political offense,” a “relative political offense” analysis is indispensible. By recognizing a lower threshold of protection for “relative political offenses,” U.S. law has effectively rendered this exception meaningless.

The Political Offense Exception

The political offense exception dates back to at least the 19th century and has several justifications. It is premised on the belief that individuals have a right to resort to political activism to foster political change and manifests the requirement of fairness that individuals should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Additionally, it complies with the right of self-determination, that foreign governments should not intervene in the internal political struggles of other nations. This exception is commonly included in extradition treaties and is provided in the United Nations Model Treaty on Extradition (G.A. Res. 45/116) at article 3(a). Read the rest of this entry…

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The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part I

Published on November 6, 2013        Author: 

Chris_Henderson_150x200Christian Henderson is Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.

On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.

Anas_al-LibyUnsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).

Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure. Read the rest of this entry…

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