Succumb and deliver
Oct 1st 2009
From The Economist print edition
Extradition laws are getting tougher and tighter. But they remain messy, even if your name is not Polanski
IT IS a fair bet that if a humble Polish immigrant called, say, Pawel Romanski had skipped bail after pleading guilty to raping a 13-year-old in Los Angeles 30 years ago, fleeing to France would have done him little good, and his fate, however unfair, would never have become a cause célèbre. Most of the time, international extradition is a boring business involving a lot of dull form-filling, after which wrongdoers are taken back to face justice.
But add a dose of celebrity, a dash of politics, and sharply clashing cultural attitudes, and things change. Swiss police arrested the film director Roman Polanski (pictured above) on September 26th, fulfilling an American arrest warrant issued in 1978. In that year Mr Polanski fled the country to avoid sentencing by a Los Angeles judge. Arrested for rape, he had agreed to a plea bargain in which he admitted unlawful sexual intercourse with a 13-year-old. A French-born Pole, Mr Polanski has dual citizenship, thus benefiting from France’s restrictive extradition laws. He has since travelled in Europe, but never returned to the United States.
His arrest has sparked a diplomatic rumpus. The French and Polish foreign ministers jointly asked America for clemency—though their governments later distanced themselves from these calls. Film-industry luminaries such as Woody Allen, Pedro Almodóvar and Martin Scorsese are supporting a petition calling for his immediate release. For Mr Polanski’s fans, the extradition decision is vindictive and sinister. His whereabouts were no secret: he was invited to Switzerland to receive an award at the Zurich film festival. Some suspect that the wily Swiss set a trap, hoping to placate America, which has been cracking down hard on Swiss tax shelters. Certainly Mr Polanski had travelled to the country many times in the past, without incident. Why had the American court only now sought to enforce the warrant?
Others, especially in America, see the issue differently. By jumping bail, Mr Polanski cocked a snook at American justice. The passage of time if anything aggravates that. So did his attempts (without showing up in person) to have a Los Angeles court dismiss the case late last year, and his successful lawsuit in London against an American magazine. (He gave evidence by videolink). The witness statement given by Mr Polanski’s victim still makes harrowing reading (though she has long since settled with him in a civil-law suit, and has supported his efforts to close the case). Justice would be ill-served if fame mitigated any crime, especially one like rape.
Mr Polanski’s case is one of several high-profile and highly politicised extraditions now in court. America is also trying to extradite Viktor Bout, a Russian arms dealer, from Thailand. Russia is trying to extradite Yevgeny Chichvarkin, a mobile-phone tycoon, from Britain on charges of extortion and kidnapping. He says his life is in danger if he is returned. Britain has previously refused to extradite other Russians, including a former Kremlin insider, Boris Berezovsky, on the ground that they cannot expect a fair trial in Russia.
Politics plays a big role in extradition. Some countries—France, Russia and Israel are examples—rarely or never extradite their own citizens (though they will send back foreigners). Diplomatic clout decides which countries conclude treaties with others, and on what terms. Exact reciprocity is rare. The fourth amendment to America’s constitution requires proof of “probable cause” for an arrest. But for America to extradite someone from Britain the level of proof is rather lower: information (not evidence) that provides a “reasonable basis to believe that the person committed…the offence for which extradition is sought”. Many find that imbalance galling.
The biggest flaw in extradition is not politics, however, but the treatment of those who lack Mr Polanski’s wealth and connections. As extradition becomes speedier and procedures tighter, the risk of miscarriages of justice rises, and in a way that the humble and innocent may find difficult to resist. A report to the British House of Commons this year highlighted the case of an elderly British citizen called Derek Bond, who was arrested, at gunpoint, in February 2003 while on holiday in South Africa. After being held for three weeks, it turned out that the American extradition request was based on a fraudster who had stolen Mr Bond’s identity.
A second concern is deeds that count as crimes in one country but not another. In October 2008 an Australian Holocaust-denier, Gerald Fredrick Töben, was arrested at Heathrow Airport while flying from America to Dubai. Germany wanted his extradition for publishing anti-Semitic material on his website. (An English court freed him after a month.) Free-speech defenders worry that in other cases vaguely worded laws against “xenophobia” could be used to extradite the controversial and eccentric, as well as the obnoxious.
The third worry is that rules on legal aid, interpreting, bail and the like vary widely between countries. That makes gaining justice in a foreign court dauntingly difficult. Such worries are particularly acute in the EU, where the “European arrest warrant”, a fast-track procedure agreed in 2002, has removed many of the bureaucratic barriers to speedy extradition—but also some of the safeguards. Charlotte Powell, a London-based barrister and chair of the Extradition Lawyers’ Association, notes that the desire to harmonise procedural rules has outstripped the harmonisation of substantive elements.
Moreover, the grounds on which a court may refuse extradition still vary sharply country by country. If a crime took place several years ago, notes Ms Powell, a Greek court may regard it as time-barred and decline to extradite, even though other EU countries would count it as still prosecutable. Another difference concerns what lawyers call “specialty”: making sure the person is prosecuted only for the crime the extradition order cites. Some countries’ courts are finicky about this. Others see warrants as small hooks to catch big fish.
Criminal-justice authorities understandably want their reach to be global. But they make mistakes. Standing trial in your own country is likely to give you a better chance of dealing with such errors than if you are hauled into court abroad—assuming, of course, that you come from a law-governed and civilised country.