Navinder Singh Sarao Update: Sarao Fails to Postpone Extradition Hearing

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On 28 August 2015, District Judge Quentin Purdy, sitting in Westminster Magistrates’ Court, rejected the application by Mr Sarao’s legal team to delay his extradition hearing to a date after September 2015. A report is here. Previous posts are available here.

Mr Sarao’s lawyer submitted, inter alia, that more time was needed to obtain expert evidence about trading and how the market worked. In particular, it was contended that this evidence would help his legal team to address whether Mr Sarao, through his trading activity, made false representations.

District Judge Purdy rejected the submissions. In particular, he held that the expert evidence was of “no assistance to [the Westminster Magistrates’] court”. This is because Judge Purdy’s task, at the extradition hearing, is to determine whether the conduct giving rise to the US criminal charges would constitute criminal offences under UK law, and not to make a pronouncement on the facts of the case.

Mr Sarao’s hearing has been set for 25 September 2015. His bail, which was granted for the first time in July, has also been extended to this date.

Mr Sarao denies the charges against him.

Roman Polanski Extradition: Poland Receives Further Legal Documents Requested from US Authorities

Roman_Polanski_2011_2On 18 August 2015, it was reported that a Polish court had received the assistance that it requested from the United States, in connection with the extradition of the filmmaker Roman Polanski. Mr Polanski faces extradition to the US, for sentencing, in connection with a child sex conviction. A report is here.

1977 Sexual Assault Allegation

On 11 March 1977, Mr Polanski was arrested in Los Angeles, for the sexual assault of a 13 year old, during a photo shoot for French Vogue magazine. He was indicted on six counts of criminal behaviour, including rape.

As part of a plea bargain, Mr Polanski pleaded guilty to the charge of “unlawful sexual intercourse with a female under 18 years of age.” He served 42 days of the 90 day plea bargain, before being released.

Fearing that the judge presiding over his case would seek to impose a longer term of imprisonment, in 1978, Mr Polanski fled from the US to France, where he has lived for the majority of the time since.

2009 Switzerland Arrest

On 26 September 2009, Mr Polanski was arrested in Switzerland, at the request of US authorities. He was detained in custody for two months in Zurich, and then placed under house arrest.

On 12 July 2010, a Swiss court rejected the US request, and released Mr Polanski from custody.

2015 US Extradition Request

In late October 2014, Mr Polanski was questioned again, in relation to the US conviction, on a visit to Kraków, Poland, by prosecutors. He was released after prosecutors “deemed it not necessary to proceed with the arrest… in relation to the possible request [by US authorities] for his extradition”.

The US filed a further extradition request for Mr Polanski in January 2015.

According to Mr Polanski’s lawyer, on 8 May 2015, Judge Dariusz Mazur, sitting in the District Court in Kraków, requested further information from US authorities, in connection with the request, by 8 August 2015.

Judge Mazur then adjourned the extradition hearing until mid-September, and extended the deadline for receipt of the information requested from the US authorities.

18 August 2015: Legal Documents Received

On 18 August 2018, it was confirmed that Poland had received the legal documents it had requested from US authorities.

“The court is now looking into the documents and only after some time will it be able to assess whether it has received answers for all the queries addressed to the U.S. side,” a court spokeswoman said.

In the event that the court rules in favour of extradition, the case will be passed to the Minister of Justice, Cezary Grabarczyk, who will make the final decision on whether Mr Polanski’s extradition should take place.

An INTERPOL Red Notice, issued in 2005 at the request of US authorities, remains issued against Mr Polanski.

FIFA Corruption Investigation Update: Extradition of Nicolás Leoz from Paraguay to the United States Contested

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At an extradition hearing held on 24 August 2015, the lawyer for Nicolás Leoz, the former President of the South American football confederation (CONMEBOL), requested the dismissal of a US extradition request for Mr Leoz, on the basis of legal defects in the 1998 extradition treaty between the US and Paraguay. The report is here.

Extradition Request: 23 July 2015

Mr Leoz has been held under house arrest in Asunción, Paraguay, since 1 June 2015, following his indictment in the US on charges of racketeering, money laundering and bribery, in connection with the FIFA corruption scandal. Mr Leoz denies the charges.

Previous blogs on the FIFA investigation are available here.

On 23 July 2015, Paraguay’s Foreign Ministry confirmed that the US Embassy had sent an extradition request for Mr Leoz.

Extradition Hearing: 24 August 2015

It is not entirely clear on what grounds Ricardo Preda, the lawyer representing Mr Leoz, challenged the US extradition request for his client, at an extradition hearing held in Paraguay on 24 August 2015. However, it appears that it relates to the procedure underlying the US-Paraguay extradition treaty.

Speaking to reporters outside the Paraguayan court, Mr Preda stated: “The defence is saying that you cannot extradite somebody if the law did not lay out the rules of the game. The treaty does not establish clear procedures to follow. There is a legislative void.”

Judge Humberto Otazu said that he would take up to three days to rule on Mr Preda’s submissions. The judge’s decision is open to appeal.

1998 US-Paraguay Extradition Treaty

Under Article II of the US-Paraguay extradition treaty, an offence is an extraditable offence if it is punishable under the laws in both countries and carries a minimum penalty of one year in prison. Article VII sets out extradition procedures, encompassing the requirements for a request to be made in writing, and supporting documentation.

The treaty further sets out, inter alia, provisional arrest procedures (Article X), decision and surrender requirements (Article XI), rules on specialty (Article XV), simplified extradition procedures (Article XVI) and transit provisions (Article XVII).

Navinder Singh Sarao Update: Civil Proceedings Stayed for Four Months Pending Extradition and UK Bail Granted

720px-US-CFTC-Seal.svgOn 13 August 2015, it was reported that the civil action brought by the United States Commodity Futures Trading Commission (CFTC) against the British “flash crash” trader, Navinder Singh Sarao, has been put on hold whilst US prosecutors seek his extradition from the United Kingdom, to face related criminal charges.

A report is here. A previous blog is here.

On 12 August 2015, U.S. District Judge Andrea Wood, sitting in the US District Court for the Northern District of Illinois, granted a stay on proceedings for four months, on the grounds of “the interests of justice”.

This followed a request by federal prosecutors to delay the exchange of evidence in the civil matter, in order to avoid damaging the criminal case.

Such requests in parallel criminal and civil cases are common, and usually granted, according to the report.

The criminal case is U.S. v. Sarao, 15-cr-00075, U.S. District Court, Northern District of Illinois (Chicago). The CFTC case is U.S. Commodity Futures Trading Commission v. Nav Sarao Futures Ltd., 15-cv-03398.

13 August 2015 Bail Granted

On 13 August 2015, Navinder Singh Sarao was granted bail by District Judge Purdy, sitting at Westminster Magistrates’ Court, and released from Wandsworth Prison, where he was being detained. As a condition, he must stay within the bounds of the M25 motorway. The amount of his bail security was reduced from £5m to £50,000. A report is here.

During the hearing, it was revealed that Mr Sarao has funds of more than £30m, including £25.5m held in Switzerland and £5m controlled by his lawyers in the US, held in an escrow.

Lawyers for Mr Sarao contended that Mr Sarao had to be released from prison, in order to present evidence to an expert on complex trading activities.

Mr Sarao’s full extradition hearing is scheduled for 24 and 25 September 2015.

Extradition of Suspected Murderer of Jennifer Dornan a Possibility

Co_DonegalOn 10 August 2015, it was reported that the Police Service of Northern Ireland (PSNI), is considering seeking the extradition of a man suspected of murdering Jennifer Dornan in her home, from Mountjoy Prison, in the Republic of Ireland. A report is here.

On 2 August 2015, Ms Dornan was stabbed in her home in Belfast, which was subsequently set ablaze. It is believed that the fire was a bid to destroy the evidence of her murder.

On 7 August 2015, a 37-year-old man was detained by gardaí in County Donegal, on an unrelated matter. He is now believed to be the primary suspect in the murder, and is currently being detained in Mountjoy Prison, in Dublin.

Following the arrest, a PSNI spokesman stated: “There are a number of options we will now be considering to progress this investigation and seeking an extradition order is one of these options.”

Another man has been arrested in Belfast, on suspicion of withholding information.

General Karenzi Karake Update: UK Free Spy Chief

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On 10 August 2015, Senior District Judge Riddle dismissed the case against General Karenzi Karake, whose extradition from the United Kingdom was sought by Spain, for war crimes committed against Spanish nationals in Rwanda in the 1990s. A report is here. A previous blog is here.

 

CPS Statement  

Following a hearing at Westminster Magistrates’ Court, a spokesperson for the Crown Prosecution Service (CPS) stated: “This was a complex case and we have worked swiftly to consider the UK law against the conduct alleged by the Spanish authorities in the European Arrest Warrant.”

“After careful consideration we do not believe an extradition offence can be established under UK law. The main reason is that the relevant laws on the conduct alleged in this case do not cover the acts of non-UK nationals or residents abroad.”

“We felt it important to bring our findings to the attention of the District Judge as soon as possible in order to allow him to make a decision ahead of the full hearing scheduled for September.”

Reported Legal Analysis

No judgment is available, and the legal arguments advanced by the CPS, and General Karake’s defence team, are not entirely clear.

As General Karake was arrested under a European Arrest Warrant, there are 32 offences for which dual criminality would not have to be demonstrated. However, war crimes are not included in this list.

It appears that the District Judge Riddle concluded that General Karake could not be charged for war crimes committed in another country, under UK law, unlike in Spain, where the principle of universal jurisdiction operates.

Under Article 23.4 of the Judicial Power Organization Act No 6/1985 of 1 July (Judicial Power Organization Act), Spanish courts may indict those it believes have committed crimes, including genocide, terrorism, and war crimes, in another country.

The UK does, in fact, prosecute certain offences under the principle of universal jurisdiction, largely through the Geneva Conventions Act 1957, Criminal Justice Act 1988 and the International Criminal Court Act 2001. However, it rarely exercises this power, and consent of the Attorney General is required for such prosecution to be brought.

General Karake was permitted to fly back to Rwanda, within 48 hours of the judgment being issued.

Relevant Legislation

Article 23.4 of the Judicial Power Organization Act states (original formulation) states:

“4. Spanish jurisdiction shall also apply to acts committed by Spaniards or foreigners outside the national territory when those acts are classified as one of the following offences under Spanish criminal law:

  • Genocide
  • Terrorism

(g) Any other crime which should be prosecuted in Spain pursuant to international treaties or conventions.”

Lauri Love Fears Fair Trial Rights Will Be Denied if Extradited to the US

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On 9 August 2015, it was reported that Lauri Love, who faces extradition to the United States to face hacking charges, fears that he will be denied a fair trial in the country. The report is here. A previous blog is here.

Mr Love, in his first official statement after his re-arrest on 15 July 2015, stated: “I would say my prospects of due process in America are essentially zero, and the prospect of extradition is tantamount to a punishment worse than any punishment from the UK justice system,”

“My parents and me are quite stressed. I have had time to acclimatise. My dad has had a heart condition and my mum is a natural worrier.”

He added, “The charges should be heard [in the UK]… where 12 of my peers should be found to try me.”

Mr Love’s full extradition hearing is expected at some point in December 2015, according to the report.

Emmanuel Okoyomon Update: Okoyomon Requests Bail

On 5 August 2015, it was reported that a hearing to consider Emmanuel Okoyomon’s request for bail has been adjourned to 12 August 2015, following an objection raised by counsel for the Attorney General of the Federation of Nigeria. A report is here.

 

Background

As outlined in a previous blog, on 4 May 2014, the Federal High Court, in Abuja, ordered the extradition of Mr Okoyomon to the United Kingdom, to face bribery allegations, and ordered his remand in prison. Mr Okoyomon appealed the judgment.

On 26 June 2015, the Abuja Court of Appeal granted a stay on the order to extradite Emmanuel Okoyomon, to the United Kingdom. The court rejected his bail application, pending the outcome of his appeal.

August Development 

At some point after the 26 June 2015 ruling, Mr Okoyomon, through his counsel, approached the Federal High Court, challenging his remand in custody pending appeal, and made a further application for bail.

It appears that Mr Okoyomon’s grounds for challenging his imprisonment were:

  • first, that the period he has spent in custody exceeds the term of imprisonment contemplated by the Federal High Court, when it imposed the order on 4 May 2015; and
  • secondly, continued incarceration has adversely affected his health, and the medical facilities at the Medium Security Prison, in Kuje, are inadequate for his health needs.

Counsel for the Attorney General of the Federation objected to the bail application, on the basis that Mr Okoyomon is detained lawfully, pursuant to the discretionary power of the Court of Appeal, a court which the Federal Court is “subordinate to”.

Counsel also rejected the contention that Mr Okoyomon’s health needs could not be treated whilst he was in custody, and raised the possibility of him being transferred to a hospital for treatment, if necessary.

On 5 August 2015, the Federal High Court, adjourned the hearing on the preliminary objection, to 12 August 2015, at the request of Mr Okoyomon’s counsel, who requested time to respond to the issues raised.

Spanish Judicial Authority v Arranz [2015] EWHC 2305

On 31 July 2015, the High Court upheld the appeal of convicted terrorist, Antonio Arranz, who faced extradition from the United Kingdom to Spain, finding that the extradition bar under section 12A of the Extradition Act 2003 (EA 2003) (of no final decision to charge or try) had been met. The judgment is here.

 

Background

In 1986, Mr Arranz, with others, placed an ‘explosive device’ in central Madrid, as part of a terrorist cell which “sought to further the aims” of the Basque separatist group, ETA. The bomb exploded, killing eleven members of the civil guard, and injured 60 others.

Mr Arranz was convicted in 1989 of 91 offences, including terrorism, murder and attempted murder. He was sentenced to 2,232 years’ imprisonment; this sentence was capped at a 30 year term, without remission (i.e. a possible reduction in his sentence), by the Audiencia Nacional in 2000.

Parot Doctrine and Release in Spain

In 2006, in a case involving another ETA defendant, the Spanish Supreme Court, amended the law so that remission would be applied to each sentence separately: the so-called ‘Parot Doctrine’. The result, in Mr Arranz’ case, was that remission was applied to the 2,232 year term of imprisonment, not the capped 30 year term.

On 1 February 2011, ostensibly applying the Parot Doctrine to Mr Arranz’ case, the Third Section of Audiencia Nacional held that Mr Arranz was to be released in 2017, rather than in 2011. However, Mr Arranz was in fact released from prison on 13 April 2011; it appears that effect was given to the earlier decision, and remission applied to the 30 year term.

On 19 April 2011, the Audiencia Nacional reversed the ruling that permitted Mr Arranz’ release, and issued a Spanish domestic warrant for his arrest. A ‘conviction’ European Arrest Warrant (EAW 1) for his arrest was issued on 26 April 2011, to enforce the Spanish arrest warrant. Mr Arranz was arrested on 29 June 2012 in the UK.

EAW1 and Case Progress in the UK

On 1 February 2013, the District Judge at Westminster Magistrates’ Court ordered the extradition of Mr Arranz under EAW 1. The decision was then upheld by the High Court in a judgment dated 14 June 2013.

The High Court upheld the decision on the basis of an express undertaking by the Spanish Judicial Authority that it would abide by the pending appeal in the decision in Del Rio Prada v Spain (2012 App 42750/09, July 2012).

In Prada, a judgment that was issued shortly after Mr Arranz’ arrest in the UK, it was held that a retroactive application of the Parot Doctrine would breach Article 7 of the European Convention on Human Rights (ECHR).

The Grand Chamber of the European Court of Human Rights did, ultimately, uphold the decision in Prada, in a judgment dated 21 October 2013. Accordingly, Mr Arranz immediately applied for his extradition appeal to be reopened.

On 22 October 2013, the Spanish Judicial Authority requested time to consider its position. Mr Arranz was granted bail, though he was not released until 27 November 2013.

The Spanish Judicial Authority refused to withdraw EAW 1.  The High Court allowed Mr Arranz’ appeal (date unspecified), ordered his discharge under s. 27 EA 2003, and quashed the order for his removal. EAW 1 was finally removed by Spanish authorities in the course of the latest appeal before the High Court.

EAW 2 and EAW 3

On 10 January 2014, the Spanish Judicial Authority issued a second EAW (EAW 2) in respect of Mr Arranz. This was an accusation warrant, alleging two offences: membership of a terrorist organisation and forgery of official documents. On 17 October 2014, Westminster Magistrates’ Court held that the EAW 2 was invalid under s. 2 EA 2003, and Mr Arranz was discharged.

On 17 November 2014, the Spanish Judicial Authority issued a replacement accusation EAW (EAW 3) for Mr Arranz’ arrest for the same two offences, curing the defect identified in EAW 2. Mr Arranz was rearrested in the UK, on 11 December 2014, and released on bail.

On 14 April 2015, the Senior District Judge ordered Mr Arranz’ extradition in respect of the first offence (membership of a terrorist organisation), but discharged him from extradition in respect of the forgery offence. Mr Arranz appealed. Six issues were pursued on appeal:

  1. “judicial engineering” by the Spanish Judicial Authority, to secure Mr Arranz’ extradition under EAW 1, and in relation to the proceedings in EAW 2 and 3;
  2. abuse of process, on the basis that the conduct set out in EAW 3 did not give rise to the offence alleged;
  3. specialty, in respect of the extant proceedings which formed the basis of EAW 3;
  4. the fact that EAW 3 is still at the investigation stage would breach Articles 6 and 5 ECHR;
  5. his extradition was barred under 12A EA 2003, on the basis that his absence from Spain was not the sole reason why a final decision to charge or to try him had not been taken; and
  6. Article 31 of the Refugee Convention 1951.

High Court, 29 July 2015

The Lord Chief Justice and Mr Justice Cranston held the following, dismissing grounds 1–4, and upholding ground 5:

  1. It cannot be concluded that the Senior District Judge had been wrong in the conclusion he reached. First, the evidence that the judicial authority had responded to pressure, by making decisions that it knew had not been in accordance with the law, had not been compelling. Secondly, EAW 3 had not been manufactured by the judicial authority. Thirdly, there was no risk that the judicial authority would treat the appellant other than properly and fairly, and would not make a decision based on political pressure.
  2. It could not be said that the law or facts were sufficiently clear for the court to conclude that the conduct was not a fair, proper or accurate description of the matters that constituted the offence of membership of a terrorist organization. Murua; Zakrzewski applied.
  3. The Spanish Judicial Authority has now taken action to bring proceedings in respect of the original conviction to an end. Specialty no longer formed a bar to extradition.
  4. With respect to the EAW 3, the case was still at the investigation stage before the Audiencia Nacional. This phase is still not yet complete. However, Mr Arranz should be able to put his case before the decision to prosecute is made; if so, there can be no breach of Articles 6 or 5 ECHR.
  5. Where evidence was adduced to show that the means of examining the defendant were possible, through use of European Convention on Mutual Assistance in Criminal Matters, or otherwise, it is for the requesting European judicial authority to prove, beyond reasonable doubt, that s. 12A (1) (b) (iii) EA 2003 has been met. This is the exception to s. 12A EA 2003, which allows extradition to proceed if it appears that there are reasonable grounds for believing that the person’s absence from a category 1 territory is the sole reason for the state’s failure to make a final decision to charge or try the defendant. No evidence was adduced by the Spanish Judicial Authority on why a decision to try had not been taken. Therefore, it cannot be shown that the sole reason for the decision not to prosecute was due to Mr Arranz’ absence from Spain. Kandola applied. Ground upheld.
  6. Ground not considered, in view of the decision on ground 5.

Appeal allowed. Mr Arranz discharged.

Palestine Applies for INTERPOL Membership

On 4 August 2015, the Palestine News & Info Agency reported that Palestine has applied to join INTERPOL. The report is here.

The application was signed by the Palestinian Prime Minister, Rami Hamdallah.

135 states have recognised Palestinian statehood to date. Israel rejects such recognition, arguing that a state is created through negotiations only.