Einigkeit und Recht und Freiheit? Der Fall Töben

UPDATE: I've also posted a few comments on this subject at another blog which you may also be interested in reading.

UPDATE 2: I've now posted again on this subject.

For those of you with some knowledge of German you may recognise the first part of the title to this post as the opening words of the third stanza to the Deutschlandlied (the Song of Germany), which comprises the present German national anthem:

Einigkeit und Recht und Freiheit
für das deutsche Vaterland

which can be rendered into English as:

Unity and justice [or: right/law] and freedom
for the German fatherland

Anyway, the reason for this post is that one Gerald Fredrick Töben, a German-born Australian citizen, was denied his Recht (right) and Freiheit (freedom) after being arrested by British police at London's Heathrow Airport for the alleged crime of holocaust denial. But, I hear you say, holocaust denial is not a crime in the United Kingdom? The lady doth protest too much, methinks! These things no longer matter in today's European Union. Although arrested in Britain by British police, the law which Töben is alleged to have breached is a German law -- and what's more one with extraterritorial effect which means that even if he'd never set foot in Germany but merely made some statement in Australia denying the holocaust (an act which is not a crime in Australia) and then come to the UK, (where the conduct is also not a crime) he still could (and would) have been arrested by British police for something that is perfectly legal in both Britain and Australia. That I find rather troublesome. Now in actual fact Germany is alleging that Töben committed this crime both in Germany and abroad. But where the conduct is alleged to have taken place is actually beside the point; even if the allegation were that the conduct took place solely in Germany what happened to Töben at Heathrow Airport would still be wrong. And equally beside the point is the argument that as an Australian going to Germany Töben has an obligation to respect and abide by the laws of Germany. Of course he does and if he breaks German law and the German police arrest him in Germany he gets less sympathy (and not much of a blog post!) from me (although I personally happen to disagree with the law he is alleged to have contravened). But manifestly that's not what happened; -- hence this blog post. What has happened is that as a result of a European Arrest Warrant being issued by a German court for an allegation of a crime against German law -- perhaps committed in Germany, perhaps in Australia, perhaps not at all (who knows) -- Töben was arrested in Britain by British police for conduct which is perfectly legal in Britain (and Australia for that matter). Once issued, a European Arrest Warrant is valid in all EU countries (plus a few others which have signed up to the scheme).

Look, I don't have any time for holocaust deniers like Töben. I believe the holocaust happened and that it was a momentous tragedy not just for the Jewish people but for the entire human race. We should never forget that dark chapter of human history and those responsible for these hideous crimes should be brought to justice. Moreover, people who deny this are wrong and should be exposed. I believe in refuting their arguments, shaming them even. And I also have a lot of sympathy for countries such as Germany and Austria who have to deal with this dark chapter of their past. I fully sympathise with the desire behind such laws. It is in no-one's interest to see the holocaust downplayed or forgotten. Yet, I strongly disagree with these laws. The end does not justify the means. Hauling people before a court and incarcerating them for holocaust denial is not the right approach. That is a very dangerous path to go down. Convicting people for thought crimes is the stuff of Orwellian or Kafkaesque nightmares, not democracies which seek to live up to the rule of law. So while I sympathise with the fact that Germany is trying to act to right a past wrong and avoid a repetition of past mistakes, the end does not justify the means. I can only say shame on Germany for criminalising this activity. This kind of law is not consistent with a Rechtsstaat. And shame again on Germany for giving this law extraterritorial effect so that Australian citizens who make certain statements in Australia without ever setting foot in Germany would still be subject to a prison sentence in Germany. That is a truly perverse law and needs to be exposed as such. If the Australian Government had any balls they'd be reprimanding Germany over this. But like that's gonna happen. Australia is a diplomatic lightweight.

But what I find far worse than Germany criminalising holocaust denial (and my country's spineless diplomatic response in standing up for the basic human rights of one of its citizens) is the complicity of the United Kingdom and other European countries in this by way of the European Arrest Warrant procedure. This is one of the most illiberal laws in the entire world and ought to be exposed as such. Like most EU measures it was sold with the idea of "streamlining" existing procedures to make them more efficient. Well when it comes to the criminal justice system some inefficiency is desirable if you believe in the liberty of the person. The existing extradition agreements between the member states, we were told, needed to be made "more efficient" to catch the bad guys (terrorists, drug dealers, organised crime syndicates etc). All noble aims. But the devil, as they say, is in the detail.

So how does extradition work? Well I'll outline two important points about the traditional approach to extradition and then explain how the European Arrest Warrant procedure differs in both respects. First, there is the principle of dual criminality. Under the traditional approach two countries would negotiate an extradition treaty and only acts which are criminal in both countries would be subject to extradition proceedings. That is why the German authorities could not ask their Australian counterparts to hand Töben over to them for trial in Germany; holocaust denial is not (yet!) a crime in Australia. And if it weren't for the European Arrest Warrant procedure, Germany could not have asked the UK to hand him over. Secondly, the traditional approach to extradition involves a mixed political-judicial extradition process. If country A wants to extradite someone from country B, then Government A puts in a formal request to Government B. Government B can either approve or refuse the request. This process respects the principle of sovereignty in international law and the Government of country B makes the decision taking its own domestic and foreign policy interests into account. If Government B refuses the request then that is the end of the matter (at least for the time being -- it may subsequently change its mind and approve the request for extradition). If however, it approves the request then the judicial procedure begins where the case comes before a judge (or magistrate) in country B to examine whether all legal requirements for extradition have been satisfied. The most important are naturally (1) whether the offence is properly subject to extradition proceedings (i.e. it (a) is sufficiently serious and (b) meets the requirement of dual criminality), (2) whether there is a prima facie case against the accused, (3) whether the accused is likely to get a fair trial in country A, and (4) if convicted whether the likely penalty will be proportionate to the crime. As you can see that is quite an "inefficient" process and the "inefficiency" arises at two levels: (1) respect for the principle of state sovereignty in international law and (2) respect for the rights of the accused.

The European Arrest Warrant procedure makes two important changes to this traditional approach to extradition. First, it removes the dual political-judicial approach to extradition and replaces it with a purely judicial approach. Under this approach Government B can no longer reject an extradition request on political grounds and extradition is now purely a legal question for a judge in country B. So if Germany wants to extradite someone from the UK, the British Government can no longer deny the request on political grounds. Under the European Arrest Warrant procedure extradition is a purely judicial function. That in itself is not such a bad thing if the states agree to it and have sufficient confidence in the fairness and functioning of each other's criminal justice systems. After all, that is how extradition functions within federal systems (such as Australia) where criminal law is a matter for the respective states and an extradition from one state to another is a purely judicial decision. Secondly, it abolishes the principle of dual criminality for "32 serious categories of offences" (see the EU site for Justice and Home Affairs http://ec.europa.eu/justice_home/fsj/criminal/extradition/fsj_criminal_extradition_en.htm). This is a dangerous move and this is why Töben is now in hot water. Obviously abolishing the requirement of dual criminality makes extradition a lot easier, but is that necessarily a good thing? What about the rights of the accused (who is to be presumed innocent until proven guilty)? If these offences are so "serious" then you have to wonder why they wouldn't already be criminal in every member state of the EU (and therefore subject to the principle of dual criminality anyway). To my mind, the fact that holocaust denial is not criminal in most countries of the EU (let alone the world) suggests that this offence should not be the subject of extradition proceedings.

But, you may say, there is an argument for lifting the dual criminality requirement in the case of serious offences. Why should dangerous criminals (such as terrorists etc) get off on a technicality merely because one country hasn't got around to introducing anti-terror laws? If people commit an act of terrorism in the UK all they would need to do is flee to another European country with no anti-terrorism laws and as a result of the principle of dual criminality they couldn't be extradited to the UK to face charges for committing acts of terrorism. So, the argument goes, we need to abolish the requirement of dual criminality in order to avoid this problem. Well even if you accept that argument for easing the restrictions with respect to "serious" offences, I would submit that holocaust denial is manifestly not such an offence. It is simply unacceptable that the principle of dual criminality was lifted with respect to thought crimes such as holocaust denial. The British Government as well as every other Government in Europe should at least have opposed this aspect of the European Arrest Warrant procedure. In this respect the European Arrest Warrant really has made criminal justice in the EU an Orwellian nightmare.

Anyway, now that that's out of the way I should say two further things about the Töben case. First, I don't at all blame the British police. In arresting Töben they were following the law. My problem is with the law that allowed them to arrest Töben in the first place, not with their actions in executing that law. Secondly, as wicked as Germany's law is and as bad as it is that the UK is complicit in this injustice, Töben needs to take some responsibility for his own actions. He knew about the German law and still made the statements he did. Once he does that he is a wanted man as far as the German authorities are concerned and he therefore needs to use some common sense about where he travels. If he values his liberty (and maybe he doesn't -- often people like this are happy to be "martyred" for their cause) then at the very least he should avoid travel to (1) Germany and (2) any country from which he can be extradited to Germany for the crime of holocaust denial (which now includes every EU country). He really ought to have done his homework on the law of extradition and realised that the UK is no longer a safe country for people like him.