NOTE: This is not the first post on this subject. Before reading this you may first like to read my initial comments on the case of Gerald Fredrick Töben.
Since originally posting on the case of one Gerald Fredrick Töben being arrested in the UK for holocaust denial, further details of the case have come to light. I am of course relying largely on press reports for information and while I am obviously thankful to journalists as a profession for what they do, they don't always tell us everything we would like to know. Anyway a few more facts have come to light which don't change my argument; if anything they strengthen it.
1) Although Germany is claiming that Töben committed offences both within and outside of Germany, the conduct amounting to the offence he is alleged to have committed in actual fact took place not in Germany but in Australia (and cyberspace). Töben did not set foot in Germany. Rather, from his home in Australia, Töben published statements on the internet which were accessible from essentially anywhere in the world (including Germany). The basis for Germany's claim that Töben committed an offence within Germany is simply that his statements which he uploaded onto the internet from Australia are accessible on computers in Germany. And likewise the claim that he also committed offences outside of Germany is that the same material is accessible on computers outside of Germany!
2) A couple of further interesting facts have now come to light about implementation of the European Arrest Warrant (EAW) procedure. One is that although the EAW procedure is supposed to apply without exception to the 32 "serious categories of offences" Belgium has indicated that it will not send suspects to Poland on murder charges relating to abortion. If this is the case then this would appear to be a clear breakdown in the EAW approach to extradition. Of course on one level this is not at all surprising. The most "pro-integration" countries in the EU typically play fast and loose with the rules, picking and choosing what suits them and what doesn't, while the poor old "Eurosceptics" play by the rules and as a result get shafted for their sense of fair play. I'm not saying that the fact that Belgium has said it won't play by the rules thereby makes it acceptable for the UK not to play by the rules. But what it does suggest is that there may be a serious problem with the rules -- if not the whole structure of the EU -- which needs to be addressed. If Poland thinks that abortion is murder -- one of the most serious crimes imaginable -- and Belgium thinks that abortion is a fundamental human right and we have a rule which says Belgium must extradite people accused of this crime in Poland then obviously we've got a serious problem on our hands. And this is exactly the kind of problem that the principle of dual criminality in extradition is supposed to avoid. It respects the fact that sovereign states can and do differ about what kind of conduct should be made criminal. Personally I happen to think that abortion (or many instances of abortion) should be illegal. But I do not therefore think that Belgium (where abortion is legal) should be extraditing doctors who perform abortions (or the women who have them or the men who encourage them to have them) to Poland to be tried for murder. If abortion is legal in Belgium then Belgium shouldn't be extraditing these people to Poland for conduct which is perfectly legal in Belgium. And I happen to think that regardless of my personal views on abortion. And exactly the same principles should apply to cases of holocaust denial: if the UK doesn't think this conduct should be made criminal then it's not right that someone should be extradited from the UK to Germany for this "crime" -- regardless of whether I think holocaust denial should be a crime (which I don't). And what's more, this is a similar principle to that by which we object to countries such as the United States (where torture is illegal) handing people over to other countries to be tortured on their behalf. Just as we should object to the Americans using other countries to torture people when their political leaders don't have the balls to take the unpopular -- and probably unconstitutional -- step of legalising torture in their own country so we should likewise object to the British Government getting other countries to lock people away for holocaust denial when they don't have the balls to pass unpopular laws which would make that a possibility in their own country. The British Government should not be allowed to send people who are innocent in the eyes of their own law to another country in order to have it "do their dirty work for them".
A second interesting fact is that at the time the changes were being introduced into British law, ministers gave assurances that under the proposed changes a British citizen could not be extradited to Germany for exactly the type of offence Töben is alleged to have committed (i.e. publishing statements on the internet outside of Germany but accessible in Germany). While Töben is an Australian and not a British citizen, this distinction is irrelevant as a matter of law: If an Australian citizen in the UK can be extradited to Germany for this then as a matter of law so too can a British citizen in the UK -- which makes a mockery of the politicians' "assurances" about the changes to the law. Now of course Töben hasn't yet been extradited (he's being remanded in custody until his extradition hearing takes place) and he has a few lines of legal argument he can run to try to avoid extradition, but he's facing an uphill battle and even if he does get off it won't be any vindication of the prior "assurances" given by ministers about this law. All this just goes to show that "assurances" by ministers about the effects of an EU diktat (or any proposed law for that matter) -- no matter how honest their intentions in making the "assurance" -- are worthless. It shouldn't take the arrest of Gerald Töben to bring that fact home to you. The law is not what politicians say or think the law means but rather what the text of the statute (as interpreted and applied by the courts) actually says. The fact that ministers thought the law didn't cover offences such as this and even gave "assurances" to the public to this effect is completely beside the point. It's the district court judge -- and possibly the appeal courts -- who will have to decide the issue according to law.
3) Töben is applying for bail before the extradition hearing which opens the possiblility of his trying to flee the country before his extradition hearing. But if he is granted bail I would imagine the court would impose some conditions, not least of which the surrender of his passport and his regular reporting to police. But of course these conditions wouldn't make it impossible for him to flee, just more unlikely that he will. After surrendering his passport he could try applying for a new passport at the Australian High Commission in London or even seek refuge there (or possibly asylum at another country's embassy such as Iran). But all of that is unlikely in the extreme. For one, I doubt the Australian Government would want to get involved in any of this or that Töben would want to go and live in Iran (assuming they'd be happy to take him)! The Australian Government pobably has a policy of not issuing a new passport in the event that an old one has been surrendered to a court as a condition of bail. And regardless of whether he can get his hands on a passport or not he would still have to leave the UK. He couldn't just turn up at an airport and get on a plane. They'd be aware of that possibility and catch him before he got away. The only way he could possibly do it is to be smuggled onto a container ship (or something like that) to a safe third country before travelling on to Australia (or wherever he wants to go next). But if he did this he would then have the further problem of now having committed an offence in the UK -- skipping bail -- which may then be subject to extradition from Australia (as well as a number of other countries) back to the UK! So while making for an interesting thriller, it's almost impossible to see Töben pulling it off -- at least without the help of a foreign government. And in any event if granted bail Töben would probably be under police surveillance the entire time making an escape all the more difficult.
4) In my previous post I highlighted the fact how the EAW procedure removes the political element of the extradition process and judicialises the whole prodecure. One thing I didn't expressly mention is that under the EAW procedure the judicial process is now much less rigorous than under the traditional approach, making extradition to another EU state a near certainty. In a traditional extradition hearing the accused could argue that there was no prima facie case against him or that he wasn't likely to get a fair trial abroad or that the punishment would be disproportionate to the crime etc etc. Well all of those arguments are basically out the window. Under the EAW procedure you can't argue that another EU state won't give you a fair trial or doesn't have a prima facie case against you etc. Their criminal justice systems are simply presumed to be virtuous -- regardless of the atual state of affairs.
That said there are still a few legal arguments up Töben's sleeve. The article I have referred to here lists them well (although I obviously don't agree with the author's perspective that Töben ought to be extradited) so I won't go into too much detail repeating the arguments here, instead commenting on two:
First, assuming that the English court accepts that Töben's offence comes under the EAW procedure and is extraditable (which it most likely will; it's almost impossible fo Töben to argue otherwise), the conduct amounting to the offence must not have taken place in Britain. Obviously Germany is alleging "publication" in Germany, Australia etc (which are clearly not Britain); but is that sufficient? Töben published the statements on the internet from Australia -- statements which were accessible in both Germany and the UK. So unless Germany can prove that Töben made statements which were not also published in the UK he has a shot at avoiding extradition. Personally I think this is Töben's best chance and I hope he has good lawyers who run with it. But to be honest I have no idea how sympathetic the courts will be to this kind of argument. From what I've heard from lawyers who work in this area of the law, where the law is ambiguous the courts usually read the law in a way which facilitates rather than hinders extradition.
A second argument involves the European Convention of Human Rights (ECHR). Basically British extradition law prevents a judge from ordering extradition if it would be incompatible with the ECHR. What's more, this requirement still seems to apply to offences under the EAW procedure which means that in the very unlikely event you could prove that extradition to an EU member state would breach the ECHR an English judge would be duty bound not to order the extradition. Now normally the courts apply this to things such as extradition to countries which practise torture and obviously extradition to Germany is a very long way from that scenario. But, the argument goes, the ECHR also contains a right to free speech so Töben could argue that his extradition to Germany would be in breach of this right under the ECHR. A nice argument, but I doubt it would succeed since the ECHR allows for its signatories (of which Germany is one) to make such exceptions to the principle of free speech "as are necessary in a democratic society ... for the prevention of disorder or crime". Obviously Germany is going to argue that its laws against holocaust denial are a legitimate exception under this principle and, moreover, I doubt an English district court judge would have the courage to rule that the German law in question was not "necessary".
In the case law of the the Strasbourg-based European Court of Human Rights there is what's called (in an awkward translation from the French) a margin of appreciation. What this means is that in judging claimed exceptions to ECHR rights the Strasbourg court will apply a less than fully rigorous standard because it takes the line that the national authorities (including the courts) are in a better position than an international court to judge what kind of exceptions are "necessary" in a particular country. So if Töben was arrested in Germany he could argue that the German law is in breach of his ECHR rights and the German court would as a matter of law have to rule on whether the law was "necessary". If the German court rules in the Government's favour then Töben could appeal the decision to the Strasbourg court which as a matter of law would have to rule on this question. But in doing so it grants what it calls a "margin of appreciation" (marge d'appreciation in French) to the German authorities. It says that while it has the right and the duty to rule on the question, the German authorities (including the German courts) are in a better position than it to judge and it will accord a high degree of respect to the decision of the national authorities (as judged by the German courts). In other words the threshold for convincing the Strasbourg Court to overturn the opinion of the German authorities on what is "necessary" is quite high. Now come to the situation at hand where Töben is not in Germany but the UK. He would be asking a British (or more correctly an English) court to rule that a German law was not "necessary ... for the prevention of disorder or crime" in Germany. If the German courts have not ruled that these laws are in breach of the ECHR (and this matter has already come before the German courts) and the Strasbourg court is not likely to overturn such a decision of the German courts, then what realistic hope is there of an English court deciding differently or indeed the Strasbourg court on appeal siding with the English court's interpretation if the English court were so to decide? The whole thought of an English court being asked to decide whether a German law violating free speech is "necessary ... for the prevention of disorder or crime" in Germany is simply risible. And yet that is the situation we have under the ECHR. Lex asinus est -- and this kind of quasi-national, quasi-international human rights law is even more of an ass than most law! It would certainly be a very "courageous" decision (in the full Applebian sense of that term!) for an English judge to make, regardless of what he actually thought was the correct decision according to law.
Anyway, Töben's bail application will be heard in London on Friday 10 October and his extradition hearing on Friday 17 October. If it's an open hearing (which I presume it will be) and I can get into the court (and assuming he hasn't fled the country after having been granted bail!) I may try going down to London to watch the extradition proceedings.
Since originally posting on the case of one Gerald Fredrick Töben being arrested in the UK for holocaust denial, further details of the case have come to light. I am of course relying largely on press reports for information and while I am obviously thankful to journalists as a profession for what they do, they don't always tell us everything we would like to know. Anyway a few more facts have come to light which don't change my argument; if anything they strengthen it.
1) Although Germany is claiming that Töben committed offences both within and outside of Germany, the conduct amounting to the offence he is alleged to have committed in actual fact took place not in Germany but in Australia (and cyberspace). Töben did not set foot in Germany. Rather, from his home in Australia, Töben published statements on the internet which were accessible from essentially anywhere in the world (including Germany). The basis for Germany's claim that Töben committed an offence within Germany is simply that his statements which he uploaded onto the internet from Australia are accessible on computers in Germany. And likewise the claim that he also committed offences outside of Germany is that the same material is accessible on computers outside of Germany!
2) A couple of further interesting facts have now come to light about implementation of the European Arrest Warrant (EAW) procedure. One is that although the EAW procedure is supposed to apply without exception to the 32 "serious categories of offences" Belgium has indicated that it will not send suspects to Poland on murder charges relating to abortion. If this is the case then this would appear to be a clear breakdown in the EAW approach to extradition. Of course on one level this is not at all surprising. The most "pro-integration" countries in the EU typically play fast and loose with the rules, picking and choosing what suits them and what doesn't, while the poor old "Eurosceptics" play by the rules and as a result get shafted for their sense of fair play. I'm not saying that the fact that Belgium has said it won't play by the rules thereby makes it acceptable for the UK not to play by the rules. But what it does suggest is that there may be a serious problem with the rules -- if not the whole structure of the EU -- which needs to be addressed. If Poland thinks that abortion is murder -- one of the most serious crimes imaginable -- and Belgium thinks that abortion is a fundamental human right and we have a rule which says Belgium must extradite people accused of this crime in Poland then obviously we've got a serious problem on our hands. And this is exactly the kind of problem that the principle of dual criminality in extradition is supposed to avoid. It respects the fact that sovereign states can and do differ about what kind of conduct should be made criminal. Personally I happen to think that abortion (or many instances of abortion) should be illegal. But I do not therefore think that Belgium (where abortion is legal) should be extraditing doctors who perform abortions (or the women who have them or the men who encourage them to have them) to Poland to be tried for murder. If abortion is legal in Belgium then Belgium shouldn't be extraditing these people to Poland for conduct which is perfectly legal in Belgium. And I happen to think that regardless of my personal views on abortion. And exactly the same principles should apply to cases of holocaust denial: if the UK doesn't think this conduct should be made criminal then it's not right that someone should be extradited from the UK to Germany for this "crime" -- regardless of whether I think holocaust denial should be a crime (which I don't). And what's more, this is a similar principle to that by which we object to countries such as the United States (where torture is illegal) handing people over to other countries to be tortured on their behalf. Just as we should object to the Americans using other countries to torture people when their political leaders don't have the balls to take the unpopular -- and probably unconstitutional -- step of legalising torture in their own country so we should likewise object to the British Government getting other countries to lock people away for holocaust denial when they don't have the balls to pass unpopular laws which would make that a possibility in their own country. The British Government should not be allowed to send people who are innocent in the eyes of their own law to another country in order to have it "do their dirty work for them".
A second interesting fact is that at the time the changes were being introduced into British law, ministers gave assurances that under the proposed changes a British citizen could not be extradited to Germany for exactly the type of offence Töben is alleged to have committed (i.e. publishing statements on the internet outside of Germany but accessible in Germany). While Töben is an Australian and not a British citizen, this distinction is irrelevant as a matter of law: If an Australian citizen in the UK can be extradited to Germany for this then as a matter of law so too can a British citizen in the UK -- which makes a mockery of the politicians' "assurances" about the changes to the law. Now of course Töben hasn't yet been extradited (he's being remanded in custody until his extradition hearing takes place) and he has a few lines of legal argument he can run to try to avoid extradition, but he's facing an uphill battle and even if he does get off it won't be any vindication of the prior "assurances" given by ministers about this law. All this just goes to show that "assurances" by ministers about the effects of an EU diktat (or any proposed law for that matter) -- no matter how honest their intentions in making the "assurance" -- are worthless. It shouldn't take the arrest of Gerald Töben to bring that fact home to you. The law is not what politicians say or think the law means but rather what the text of the statute (as interpreted and applied by the courts) actually says. The fact that ministers thought the law didn't cover offences such as this and even gave "assurances" to the public to this effect is completely beside the point. It's the district court judge -- and possibly the appeal courts -- who will have to decide the issue according to law.
3) Töben is applying for bail before the extradition hearing which opens the possiblility of his trying to flee the country before his extradition hearing. But if he is granted bail I would imagine the court would impose some conditions, not least of which the surrender of his passport and his regular reporting to police. But of course these conditions wouldn't make it impossible for him to flee, just more unlikely that he will. After surrendering his passport he could try applying for a new passport at the Australian High Commission in London or even seek refuge there (or possibly asylum at another country's embassy such as Iran). But all of that is unlikely in the extreme. For one, I doubt the Australian Government would want to get involved in any of this or that Töben would want to go and live in Iran (assuming they'd be happy to take him)! The Australian Government pobably has a policy of not issuing a new passport in the event that an old one has been surrendered to a court as a condition of bail. And regardless of whether he can get his hands on a passport or not he would still have to leave the UK. He couldn't just turn up at an airport and get on a plane. They'd be aware of that possibility and catch him before he got away. The only way he could possibly do it is to be smuggled onto a container ship (or something like that) to a safe third country before travelling on to Australia (or wherever he wants to go next). But if he did this he would then have the further problem of now having committed an offence in the UK -- skipping bail -- which may then be subject to extradition from Australia (as well as a number of other countries) back to the UK! So while making for an interesting thriller, it's almost impossible to see Töben pulling it off -- at least without the help of a foreign government. And in any event if granted bail Töben would probably be under police surveillance the entire time making an escape all the more difficult.
4) In my previous post I highlighted the fact how the EAW procedure removes the political element of the extradition process and judicialises the whole prodecure. One thing I didn't expressly mention is that under the EAW procedure the judicial process is now much less rigorous than under the traditional approach, making extradition to another EU state a near certainty. In a traditional extradition hearing the accused could argue that there was no prima facie case against him or that he wasn't likely to get a fair trial abroad or that the punishment would be disproportionate to the crime etc etc. Well all of those arguments are basically out the window. Under the EAW procedure you can't argue that another EU state won't give you a fair trial or doesn't have a prima facie case against you etc. Their criminal justice systems are simply presumed to be virtuous -- regardless of the atual state of affairs.
That said there are still a few legal arguments up Töben's sleeve. The article I have referred to here lists them well (although I obviously don't agree with the author's perspective that Töben ought to be extradited) so I won't go into too much detail repeating the arguments here, instead commenting on two:
First, assuming that the English court accepts that Töben's offence comes under the EAW procedure and is extraditable (which it most likely will; it's almost impossible fo Töben to argue otherwise), the conduct amounting to the offence must not have taken place in Britain. Obviously Germany is alleging "publication" in Germany, Australia etc (which are clearly not Britain); but is that sufficient? Töben published the statements on the internet from Australia -- statements which were accessible in both Germany and the UK. So unless Germany can prove that Töben made statements which were not also published in the UK he has a shot at avoiding extradition. Personally I think this is Töben's best chance and I hope he has good lawyers who run with it. But to be honest I have no idea how sympathetic the courts will be to this kind of argument. From what I've heard from lawyers who work in this area of the law, where the law is ambiguous the courts usually read the law in a way which facilitates rather than hinders extradition.
A second argument involves the European Convention of Human Rights (ECHR). Basically British extradition law prevents a judge from ordering extradition if it would be incompatible with the ECHR. What's more, this requirement still seems to apply to offences under the EAW procedure which means that in the very unlikely event you could prove that extradition to an EU member state would breach the ECHR an English judge would be duty bound not to order the extradition. Now normally the courts apply this to things such as extradition to countries which practise torture and obviously extradition to Germany is a very long way from that scenario. But, the argument goes, the ECHR also contains a right to free speech so Töben could argue that his extradition to Germany would be in breach of this right under the ECHR. A nice argument, but I doubt it would succeed since the ECHR allows for its signatories (of which Germany is one) to make such exceptions to the principle of free speech "as are necessary in a democratic society ... for the prevention of disorder or crime". Obviously Germany is going to argue that its laws against holocaust denial are a legitimate exception under this principle and, moreover, I doubt an English district court judge would have the courage to rule that the German law in question was not "necessary".
In the case law of the the Strasbourg-based European Court of Human Rights there is what's called (in an awkward translation from the French) a margin of appreciation. What this means is that in judging claimed exceptions to ECHR rights the Strasbourg court will apply a less than fully rigorous standard because it takes the line that the national authorities (including the courts) are in a better position than an international court to judge what kind of exceptions are "necessary" in a particular country. So if Töben was arrested in Germany he could argue that the German law is in breach of his ECHR rights and the German court would as a matter of law have to rule on whether the law was "necessary". If the German court rules in the Government's favour then Töben could appeal the decision to the Strasbourg court which as a matter of law would have to rule on this question. But in doing so it grants what it calls a "margin of appreciation" (marge d'appreciation in French) to the German authorities. It says that while it has the right and the duty to rule on the question, the German authorities (including the German courts) are in a better position than it to judge and it will accord a high degree of respect to the decision of the national authorities (as judged by the German courts). In other words the threshold for convincing the Strasbourg Court to overturn the opinion of the German authorities on what is "necessary" is quite high. Now come to the situation at hand where Töben is not in Germany but the UK. He would be asking a British (or more correctly an English) court to rule that a German law was not "necessary ... for the prevention of disorder or crime" in Germany. If the German courts have not ruled that these laws are in breach of the ECHR (and this matter has already come before the German courts) and the Strasbourg court is not likely to overturn such a decision of the German courts, then what realistic hope is there of an English court deciding differently or indeed the Strasbourg court on appeal siding with the English court's interpretation if the English court were so to decide? The whole thought of an English court being asked to decide whether a German law violating free speech is "necessary ... for the prevention of disorder or crime" in Germany is simply risible. And yet that is the situation we have under the ECHR. Lex asinus est -- and this kind of quasi-national, quasi-international human rights law is even more of an ass than most law! It would certainly be a very "courageous" decision (in the full Applebian sense of that term!) for an English judge to make, regardless of what he actually thought was the correct decision according to law.
Anyway, Töben's bail application will be heard in London on Friday 10 October and his extradition hearing on Friday 17 October. If it's an open hearing (which I presume it will be) and I can get into the court (and assuming he hasn't fled the country after having been granted bail!) I may try going down to London to watch the extradition proceedings.
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