Martin Wright writes: The recent extradition proceedings relating to the alleged Holocaust denier, Dr Frederick Toben, have revived earlier concerns about the adoption, following the enactment of the Extradition Act 2003, of the European Arrest Warrant (EAW) procedure into UK law. In the event Dr Toben successfully resisted the proposed extradition to Germany. Nevertheless the case does raise concerns about the erosion of the right of individual member states to legislate and administer their own laws.
Dr Toben was born in Germany but has lived in Australia since childhood and is an Australian citizen. He runs a website which challenges generally accepted historical thinking about the Holocaust. At the time of his arrest he was travelling from the USA to Dubai via London. In none of these three countries is Holocaust denial a crime. Dr Toben might have been forgiven for thinking therefore that he was perfectly safe to undertake his journey. In that he was deluding himself, for he had not taken into account this country’s ever-growing subservience, thanks to the EU, to external legal concepts. The police boarded his plane to execute an EAW on behalf of the German prosecuting authorities.
Of course it is uncommon for a person to endorse Holocaust denial, but it is precisely when a subject seems to be beyond the pale that we have to ensure that we follow principle not emotion. It is simply not good enough to say “he’s a nasty man, so who cares?” Moreover the situation is not confined to Holocaust deniers; there are other issues that either have arisen or could arise between EU states involving mismatches between the laws and cultures of individual countries.
Looking back, it is said that the EAW was introduced as a response to the growth of international terrorism. There was concern that traditional extradition proceedings were time consuming and sometimes capable of being obstructed. The relevant page of the European Commission website boasts: “The European Arrest Warrant means faster and simpler surrender procedures and no more political involvement.” You will note there the total absence of any concern that there should be checks and balances to ensure justice for the subject. Their only concern is efficiency. No doubt the KGB and Stasi were very efficient in their procedures, but that is hardly a recommendation for their methods.
I mentioned that the issues about the EAW are not restricted to Holocaust denial. A prime example arose in 2005, when the Austrian cartoonist, Gerhard Haderer, published a small book of cartoons, “The Life of Christ”, which included various pictures of Christ in unseemly situations. The book was banned in Greece, where he was tried in absentia for blasphemy and sentenced to six months imprisonment. It was only after conviction that the Greek authorities issued an EAW. According to the Guardian, this was the first time that an artist had been the subject of such a warrant. Conveniently, the conviction was subsequently quashed, but the point is nevertheless made.
A second example concern doctors involved in abortion or euthanasia. According to Lib Dem home affairs spokesman, Chris Huhne MP, there was such concern in Belgium about the stance of the Polish authorities on these issues that the Belgian Government had announced that it would not recognise any EAW issued by Poland in such cases.
Germany’s constitutional laws are quite wide and ban “Volkshetzung” or incitement of any kind, not just antisemitism. Politically there is a desire to improve integration of the large Turkish community and associated with that is a sometimes almost obsequious desire to avoid any offence. So could we be faced in a few years’ time with German EAW applications against British journalists who have warned against Islamist extremism on the basis that a particular publication had upset Germany’s Muslims? After all the German stance in the Toben case appears to be that anything published on the internet anywhere in the world is published in Germany. It may not be so far fetched, as Germany’s laws are not concerned about whether the publication is true or fair comment but on the effect of potentially disturbing the harmony between communities.
A final example could easily arise once Turkey joins the EU. It is a criminal offence in Turkey to allege any massacre by Turkey of Armenians. Imagine that a journalist or historian residing in the UK did just that in a press article or blog. Previous Turkish behaviour suggests that it is quite likely that the Turkish authorities would issue an EAW for the journalist’s extradition, particularly if an expatriate Turk was involved.
All these examples involve extradition for an action that is not an offence in the state where the accused resides. In legal terms there is no “dual criminality”. The removal of the “dual criminality” test is the main objection to the introduction of the EAW. Under previous procedures, no extradition was possible unless the conduct complained of was regarded as criminal here. No such test applies in EAW cases.
During the passage of the Bill, the then Home Office Minister, Lord Filkin, promised Parliament that no one would be extradited for conduct that was legal in Britain: “.., if someone denied the Holocaust in the UK by whatever means, it would not be possible to extradite that person for that action, even though it might be an offence in Germany. These amendments will put beyond any shadow of doubt that no one will be extradited for conduct which takes place in the UK which is not contrary to our law.”
But the amendment and the promise do not amount to a test for dual criminality, for they do not test whether the action is a crime in the UK. The let-out is merely for acts committed in the UK, not for acts that are legal in the UK. So while some one who had denied the Holocaust while in the UK cannot be extradited, the Minister also said that if some one from the UK denied the Holocaust in Cologne market place and returned to the UK, they would be extradited back to Germany. Thus according to the new legislation if a Polish doctor had conducted abortions in Poland and then moved to the UK, we would be obliged to comply with an EAW to extradite him back to Poland, even though abortion (within defined parameters) is not a crime in the UK.
There are also a number of oddities in the structure outlined in the relevant EU webpage. The most glaring is that a person may not be extradited if he is the beneficiary of an amnesty concerning his criminality. But there is no exemption if it is not a crime at all in the UK. Thus a secondary ground can bring exemption but a primary reason cannot. The logic of that can only be described as Kafkaesque.
A second important safeguard in traditional extradition procedures was that the foreign jurisdiction would have to establish that there was a prima facie case for the accused to answer. There is no longer any such requirement; the European Framework Directive requires our courts to respect the legal systems of all other member states without question. The relevant EC webpage says: “The EAWis based on the principle of mutual recognition of judicial decisions. This means that a decision by the judicial authority of a member state to require the arrest and return of a person should be recognized and executed as quickly and as easily as possible in the other Member States.”
But why should we? Why should we necessarily believe that the legal system of a country that has only recently emerged from, say, a communist dictatorship is both fair in principle and practice, free from corruption and observant of due process? In 2001 Lord Justice Scott told the Daily Telegraph: “The fair-trial implications are serious. We are going to have a number of new entrants to the Community, sooner or later, and the decisions to admit them will be political decisions.
“They will all sign up to the European Convention on Human Rights, but some of them may be countries that do not have much depth of experience of what we would regard as the rule of law and democratic institutions.
“The extent to which the judiciary is truly independent of the executive, and – by our standards – able to provide an entirely judicially objective approach to trials, may be variable in particular types of case.”
Some states have been showing more independence of spirit than the United Kingdom. The EU website bewails inter alia that “effort … is still required by some Member States to comply fully with the Framework Decision.” And also “A few Member States considered that, with regard to their nationals, they should reintroduce a systematic check on double criminality or convert their sentences. Noticeable in some Member States is the introduction of supplementary grounds for refusal, which are contrary to the Framework Decision, such as political reasons, reasons of national security or those involving examination of the merits of a case.” All I can say is: well done to those other states for asserting their sovereignty in these matters.
As it happened, no great principles were tested in the Toben case – the outcome was more mundane. The District Judge ruled that the EAW issued was invalid simply because it lacked sufficient detail about the time and place of the alleged offences. There was no need for her to consider more wide reaching issues such as dual criminality. Although the Crown Prosecution Service initially appealed, the prospects of success were slim, so the German government eventually consented to Dr Toben’s release and this was formally approved by the High Court. While Dr Toben is no doubt relieved to be back in Australia, observers may be less satisfied, as the principles behind the EAW have not been fully tested. The Toben case could be described as a near miss: a properly completed EAW form might have seen his extradition.
So what is the conclusion to be drawn? It is important for those who would like to preserve the essence of our common law, that (short of a withdrawal from the EU) the UK should either renegotiate the Framework Document or, more likely, amend the Extradition Act 2003 to restore the traditional checks and balances that ensure that the British courts test the validity of overseas prosecuting authorities’ warrant applications, rather than the current system, which often seems little more than a rubber stamping process.
Unfortunately the trend of affairs is entirely in the other direction. In the long term, the pressure will always be on greater unification of laws across the whole EU. More immediately the EU Council of Justice Ministers has just adopted the Framework Decision on racism and xenophobia seven years after it was first proposed. Although we already have laws against inciting racial hatred, racist assaults etc., our laws will now need amendment and augmentation in order to conform to a European standard rather than being tailored to our own society’s needs. How far the crusade against xenophobia will go is a moot point. Would the Conservative Party’s 2005 election posters on immigration have been legal?
