Chapter 3 - Extradition in Practice: The Conduct of Nations

Summary

Introduction

The three cases described in this chapter highlight various concerns about specific conduct by the requesting and requested nations that could undermine the extraditee's individual rights. The high-profile case involving Kim Dotcom raises significant questions regarding the legality of search warrants executed by NZ Police to collect evidence to assist prosecutors in the US, and the operation of the double criminality rule. The quality of evidence against an extraditee was also raised in Hassan Diab's case, which examined the additional problem of when continued proceedings against the individual should cease. Finally, the case involving Daniel Snedden raises issues about the communication between nations when an extradition request has been made, and the application of the specialty principle, which stipulates an extraditee can only be prosecuted for the offences listed in the extradition request (Bassiouni 2014). This case also demonstrates how the political offence exception operates in the context of international crimes after protracted violent conflict and war. As with the cases in the previous chapter, there are few instances where judges supported the arguments raised by extraditees. The chapter will set out the key details of each case and illustrate problems when it comes to recognising the human rights of the extraditee during the surrender procedure.

Kim Dotcom, Police Action and Double Criminality

The Kim Dotcom case is a useful example that highlights the dilemmas facing police organisations asked to enforce a foreign extradition request while attempting to uphold domestic laws and individual rights protections that might differ from those in the requesting state. In this case, while US authorities held preliminary evidence that was sufficient to lay charges against Dotcom, Mathias Ortmann, Bram van der Kolk and several co-offenders, a successful prosecution required additional evidence that could only be collected by NZ Police under domestic search warrants. The legality of the NZ Police search and the issue of double criminality as judged by the NZ courts have been central to determining extraditability in this case.