By Alper Ali Riza
I do not know what is alleged against Ms Eleni Loizidou, the lawyer formerly at the extradition desk of the government law office but as an inquiry is in progress, I shall do as Mr Attorney-General advised and not comment on the predicament of the hapless lawyer. Rather, I shall concentrate on the wider issues about the conflict of laws between extradition and refugee law raised by the controversy.
I must, however, declare an interest on behalf of clients because the facts of their cases inform what I say in this article.
As every extradition lawyer knows, and as Ms Loizidou seemingly told the Guardian newspaper, countries are obliged to cooperate in the investigation and prosecution of cross-border crime.
The obligation to cooperate received huge support from a landmark decision of the European Court of Human Rights in 2010 that found Cyprus in violation of the human rights of a Russian family for failing to cooperate with Russia in the investigation of the death of their daughter who was trafficked as a sex slave and who died in Cyprus in mysterious circumstances.
In April 2017 Cyprus was found in violation of the human rights of a Turkish Cypriot family, again for failing to cooperate – this time with the Turkish Cypriot authorities – in the investigation of a murder in the Republic of three members of their family by three Turkish Cypriots who escaped to north Cyprus. The Turkish side was also found guilty of the same violation for the same reasons and the case is pending before the Grand Chamber of the ECHR and will be heard in March 2018.
Indeed, whenever an offence is committed in one country and the alleged perpetrator escapes to another the general principle that applies is summed up succinctly by the Latin tag aut dedere, aut judicata – either extradite or prosecute. It is a widely accepted principle that criminals should not go unpunished by the simple expedient of moving elsewhere; hence the need to cooperate and hence the need to extradite.
Generally speaking countries do not have jurisdiction to investigate offences committed in other countries. Moreover, as evidence is more readily available in the country where the crime is committed, defendants are tried in that country; and punished there pour decourager les autres.
Provided extradition is done in accordance with due process and the suspect’s fundamental rights are protected, there is no reason why extradition should not take place quickly and efficiently – even to countries whose criminal justice system does not measure up to EU standards.
Due process requires law enforcement agencies to follow certain procedures and standards provided by EU law, whose implementation is supervised by the European Commission, armed with the power to bring legal proceedings against a member state that fails to fulfil its obligations.
The fundamental rights engaged are the right to life; the right not to be subjected to inhuman and degrading treatment or punishment; the right to a fair trial, and the right to asylum. These rights overlap but the right to asylum is the most efficacious because of the ease with which it can be claimed and because it carries with it an absolute prohibition on refoulement – returning a refugee to the borders of a country likely to persecute him.
When Cyprus joined the EU its constitution was amended to give EU laws legal effect and precedence over other laws. EU law expressly prohibits refoulement in extradition cases. Furthermore, EU procedures and standards for determining refugee status are mandatory and they apply to all claims made to any law enforcement agency, in any context, including extradition, and require consideration by a single central authority.
In the UK, once an alleged offender claims his extradition is politically motivated, the extradition process is adjourned to await a decision on his claim from the Home Office – the designated central authority in the UK.
The requirement for a decision by a single a central authority is hugely important in the context of extradition because, unlike the prosecution minded ethos at any attorney-general’s office, it is an independent authority with the necessary expertise for the task in hand. It is for that authority to consider all the relevant facts about the requesting state and take into account its criminal laws, the way they are applied and the evidence relied on, and subject it all to ‘rigorous and anxious scrutiny’ with a right of appeal if the extradition request is upheld.
This is not what happens in extradition hearings in Cyprus at present. The court does not consider the evidence against the alleged offender to see if it is satisfactory, or whether it proves the crime for which extradition is sought, but confines itself to deciding if the applicant has proved that his prosecution is politically motivated.
How any judge can decide that an extradition request is politically motivated without assessing the nature of the evidence against an alleged offender is difficult to understand. It is no longer acceptable for a judge to say he has seen and heard the applicant and not found him credible – a bad habit picked up from an older generation of English judges. As the former Chief Justice of England, the late Lord Bingham, said judicially and extra judicially, that sort of judging is intellectually unsound because a witness’s demeanour tells one very little – especially when it is given through an interpreter or in another tongue.
In extradition cases from the Russian Federation the prosecutor-general puts in a request for extradition with the minister of justice via its embassy in Nicosia. The request identifies the offence for which extradition is sought and sets out in a schedule the acts of the defendant which it is alleged show he committed the offence, and asks for his detention with a view to removal to Russia. The request gives the usual guarantees which include the assertion that it is not aimed at prosecuting the person for political reasons.
What then happens is that there is a hearing before a court to decide if the applicant has shown that his prosecution is politically motivated. He is examined and cross examined. If the judge believes him well and good. If he does not then it is curtains and he is flown from Cyprus to Russia with love!
That is not the EU way of determining refugee status. It looks as though the procedures and standards laid down in the directives dealing with refugee claims have not been harmonised into the extradition process despite the obvious overlap between them.
There is undoubtedly a tension between refugee and extradition law since refugees can be returned if there are serious reasons for considering they have committed a serious non-political offence, but that begs the question whether the extradition request itself is genuine or done for political reasons.
Alper Ali Riza QC is a queen’s counsel and a part time judge in the UK