Extradition / asylum law and INTERPOL s

Transcription

1 Extradition / asylum law and INTERPOL s

2 Context: INTERPOL s rules Preliminary points Fair Trials works on criminal justice Not a refugee-assisting organisation This is based on our INTERPOL work

3 The world in which INTERPOL operates About our work on INTERPOL Strengthening INTERPOL, Nov 2013 Meetings with INTERPOL to discuss it Work on 30+ INTERPOL cases since 2011 Many of them EU-recognised refugees

4 (1) A world of global policing challenges The world in which INTERPOL operates

5 The world in which INTERPOL operates (1) A world of global policing challenges Organised crime crosses borders easily Suspects, evidence often located in other countries INTERPOL helps countries respond to this challenge Connects police of 190 countries Wanted person system to track down fugitives Exchange of expertise, training, databases, missing persons Good. Countries need to work together to fight crime!

6 (2) A world where persecution is common The world in which INTERPOL operates

7 An international issue (2) A world where persecution is common Benny Wenda Indonesia

8 The world in which INTERPOL operates (2) A world where persecution is common So wanted persons include Fugitives fleeing justice (bad) Refugees at risk of persecution (good) Key question: when INTERPOL should facilitate arrest Depends on interpretation of Article 3, INTERPOL Constitution «it is strictly prohibited for the Organization to undertake any intervention or activities of a political, religious, racial or military character» Its documents say this is intended to reflect extradition law and protect people from persecution. But problems in practice. Discussion in Strengthening INTERPOL, and

9 Overview of the relevant law Main points of this presentation Review of relevant principles The political offence in extradition law The discrimination / persecution clause in extradition law 1951 Convention relating to the status of refugees Exclusion clauses relating to serious non-political crime Petr Silaev case Look at the above rules in action Explore areas of conflict (undermining asylum, refoulement risk) Explain why the current INTERPOL approach is problematic

10 Overview of the relevant law Colour-coding Yellow contours: extradition Blue contours: asylum Red contours: INTERPOL

11 Overview of the relevant law Exceptions to extradition obligations Article 3 of the 1957 COE Convention on Extradition Both of these are the COE version of common principles (1) Political offence exception (2) Discrimination / persecution clause

12 Overview of the relevant law (1) Political offence exemption 19th century concept based on reality of political struggles The Swiss «Predominance» test is authoritative Measures proportionality of the offence to the political aim Assessed by reference to context in which it is committed Anglo-saxon tradition Offence must be incidental to the political struggle T v Immigration Officer [1996] AC 472 (House of Lords) Very close to 1F(B) 1951 Convention test (UNHCR agrees) Largely irrelevant, out of date concept

13 Overview of the relevant law Overlap with the serious non-political crime exclusion clause Article 1F(b) 1951 Convention

14 Overview of the relevant law Overlap with the serious non-political crime exclusion clause Article 1F(b) 1951 Convention UNHCR Guidance Note Offence must be serious by reference to international standards Political / non-political nature is assessed by predominance test If act disproportionate to the political aim: non-political Motivation, context, methods and proportionality key Court of Justice of the EU (Cases C-57/10 and 101/10 B and D) Membership of a terrorist organistion not itself enough Material participation with knowledge of consequences

15 Overview of the relevant law (2) Discrimination / persecution clauses «substantial grounds for believing that an extradition request for an ordinary criminal offence has been made for the purpose of prosecuting the person on account of their political opinions» Inter-American Convention / UNMTE / bilateral treaties Bundesgericht: principle of customary international law These mirror wording of Article 1A(2) 1951 Convention Goodwin-Gill: intended to close the gap with 1951 Convention Kapferer: significant overlap with Article 33(1) 1951 Convention This «political motivation test» is a lot more current

16 Overview of the relevant law Overlap with 1951 Convention protection Article 1A(2) 1951 Convention UNHCR Handbook (56-60) Fugitives from prosecution for ordinary offences not refugees But discriminatory prosecution may amount to persecution Public order offences mentioned as vehicle for persecution

17 Overview of the relevant law Overlap with the 1951 Convention Among the rights enjoyed by the refugee: UNHCR No contacting state: asylum decision has extraterritorial effect In any manner whatsoever: includes by means of extradition

18 Overview of the relevant law Overlap / distinctions There is significant overlap between Article 1F(b) and «political offence» tests; both preclude the serious offender (whatever his aims) from avoiding prosecution, but enable the political offender to obtain refuge Article 1A(2) / Article 33(1) and «discrimination» / «persecution» clauses in extradition treaties; both provide protection against return to face discriminatory prosecution INTERPOL Applies the «political offence» concept under Article 3 Does not consider political motivation as triggering Article 3 This leads to problems, as shown by Petr Silaev case

19 Petr Silaev Case example Petr Silaev

20 Essential background Case example Petr Silaev

21 Essential background Case example Petr Silaev

22 Essential background Case example Petr Silaev

23 Essential background Case example Petr Silaev

24 Case example Petr Silaev Asylum grant (Finland) Silaev supplies evidence of real risk of persecution Explained that he was wanted in Russia Showed video footage from the protest Arrests had targeted recognised spokespersons People arrested asked to provide evidence against Silaev Finnish Immigration Service (reasoned decision): Applied the UNHCR Handbook guidance This was a case of discriminatory prosecution This post-dates circulation of INTERPOL alert: no exclusion

25 Case example Petr Silaev Extradition proceedings (Spain) Arrested on INTERPOL «Diffusion» Supplied Convention travel document, explained he was a refugee Detained for ten days until UNHCR & other addressed the court

26 Case example Petr Silaev Extradition proceedings (Spain) Six months later, extradition refused Recognition of Finnish asylum decision («part of the same legal and cultural environment», mentioning the Dublin Regulation) Article 3 of the 1957 Convention applied Vague allegations, made by police, without judicial input Directed against a recognised activist Background information on the Khimki dispute Nothing alleged against him, beyond protesting Case shows overlap between extradition / asylum protection

27 INTERPOL and non-refoulement The difficulty with INTERPOL s current approach INTERPOL s current practice, based on «political offence» It probably did not apply it carefully enough in Silaev s case So despite two findings Silaev at risk, alert not removed INTERPOL s policy is to place addendum on the file instead This means people like Silaev stay at risk of repeated arrest Kapferer, 2003: serial arrests of refugees particularly worrying INTERPOL needs to look again at this issue (it is doing so) UNHCR, PACE, EU need to offer assistance to INTERPOL on this

28 General ideas on conflicts (1) Extradition requests and exclusion from refugee status Potential exclusion from refugee status due to Information in a formal extradition request A wanted person alert issued as a precursor to such a request Particularly relevant in the Minsk / Shanghai contexts UNHCR / European Commission Extradition request information may be relevant to qualification as a refugee (may help avoid abuse of asylum system) However, its reliability and significance must be evaluated in light of all the circumstances of the case Red Notice / extradition request may be evidence of persecution

29 General ideas on conflicts (2) Risk of / actual arrest & detention of refugees The 1951 Convention uses non-refoulement to achieve a purpose Protects the exercise of fundamental freedoms (e.g. holding political opinions) when the home state does not (HJ and HT, UKSC 2012) Extradition requests / circulation of wanted alerts undermine this Activists cannot attend meetings, associate with colleagues They live at risk of arrest despite grant of protection UNHCR, 2009, addressing the EU: this is a major concern This has particular resonance in the EU, given harmonisation Silaev case: courts didn t have a clue until UNHCR intervened

30 General ideas on conflicts (3) Risk of refoulement Article 33(1) and extradition discrimination clauses overlap However, extradition discrimination clauses are often narrower They cover the prosecution / trial process But not other things (e.g. potential physical treatment) Requested person must make human rights arguments too Practical considerations Extradition procedures vary a lot, representation very variable Refugee effectively has to prove persecution risk again Silaev: right result, but a laborious process with great human impact

31 Exploring solutions Thanks for listening!

32 Discussion on solutions within INTERPOL Two parts to this discussion (1) When INTERPOL should / should not facilitate arrest Suggested change of approach to Article 3 of INTERPOL Constitution Discussion of criteria and evidence relevant for assessing red notices Abusive prosecutions, financial crimes Hooliganism, terrorism & individual participation (2) The Commission for the Control of INTERPOL s Files as a remedy Resources, timeframes, etc. Reasoned decisions / exchange of information Data protection / human rights (extradition / asylum / crime)

33 Bahar Kimyongür Turkey Spanish court: The facts surrounding his case did not constitute a criminal act. Italian court: Bahar s conduct amounted to exercising his right to freedom of thought. Dutch court: A mere demonstration in which he entered the room and chanted.

34 Dmitrij Radkovich Belarus

35 Solutions INTERPOL could adopt Approach to Article 3 We understand it to be based on the «predominance test» Fair Trials says Extradition & asylum law overlap significantly A political motivation test would be more useful If a person is clearly not extraditable, no use in facilitating arrest Evidential standard of proof ECHR Article 18 standard («very exacting» (Khodorkovskiy)) Extradition standard is lower («substantial grounds») INTERPOL is not competent to make the former finding

36 Solutions INTERPOL could adopt

37 Silaev no effective remedy

38 Big picture reasons + answers

39 Big picture reasons + answers CCF Annual Budget ( ) Total Operating Income (2012)

40 International responses

41 International responses Joint MEP letter November 2013 Commission responds December 2013

42 Our vision: A world where every person s right to a fair trial is