Extradition while application to ECHR pending does not justify stay of proceedings

Mokbel v The Queen [2013] VSCA 118 (17 May 2013)

Summary

The Victorian Court of Appeal has refused Antonios Sajih (Tony) Mokbel leave to appeal against a conviction and sentence relating to three serious drug offences. The Court upheld the decision at first instance that complaints about the conduct of Australian authorities (who accepted Mr Mokbel’s extradition whilst he had an application to the European Court of Human Rights on foot) fell far short of justifying a permanent stay of his criminal charges.

Facts

In early 2006, while on trial for drug offences in the Supreme Court of Victoria, Mr Mokbel fled to Greece. On 5 June 2007, he was taken into custody in Greece. On 5 July 2007, Australia formally requested that Greece extradite Mr Mokbel, in order for him to serve the sentence already imposed and to face further drug charges in Australia.

Mr Mokbel unsuccessfully challenged the validity of the extradition request in the Australian Federal Court, Full Federal Court, and High Court. On 26 July 2007, the Court of Appeal in Athens upheld Australia’s request, ordering Mr Mokbel’s extradition. Mr Mokbel appealed the decision to the Greek Supreme Court, which confirmed the order for extradition.

On 9 April 2008, Mr Mokbel lodged an application for “provisional protective measures” with the ECHR. He asserted that for Greece to extradite him would violate rights set out in the European Convention on Human Rights.

In May 2008, the Greek Minister of Justice ordered Mr Mokbel’s extradition and he was escorted back to Australia. At that stage, there had not yet been any communication between the ECHR and the Greek Government regarding Mr Mokbel’s application. No order for provisional protective measures had been made.

Back in Australia, Mr Mokbel applied for a permanent stay of the further criminal proceedings against him. He argued that because his extradition had occurred while his application to the ECHR was pending, it would be an abuse of process for him to be prosecuted. He failed in three successive applications and was convicted of three drug offences.

He sought leave to appeal the conviction on the ground that the third stay application should have succeeded. In order to succeed, Mr Mokbel was required to show:

• that Greece had violated its obligations under the Convention; and
• that Australia had accepted his surrender by Greece with knowledge of the unlawfulness of Greece’s conduct.

Decision

Whether Greece had violated its obligations under the Convention

Article 34 of the Convention provides that:

The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

Mr Mokbel contended that Greece had violated this article because his extradition “hindered…the effective exercise of [his] right” to advance a claim before the ECHR alleging human rights breaches. His counsel acknowledged, however, that they could point to no ECHR authority nor any academic writing on the subject, which supported that contention.

The Victorian Court of Appeal considered the current state of Convention law and concluded that:

the only relevant proposition that has, to date, been authoritatively established is that a Contracting State violates art 34 if it extradites a person in defiance of interim measures of which the State has been notified.

This was not the case for Mr Mokbel. At the time of his extradition, the ECHR had made no order for interim measures. There was therefore no legal obstacle to Mr Mokbel’s extradition.

The Victorian Court of Appeal went on to explain why it considered itself confined to the current state of Convention jurisprudence:

For obvious reasons, it would be neither appropriate nor practicable for the Australian court to reach a conclusion based on speculation about how the relevant area of foreign law might be extended or developed in the future. Moreover, unless the breach of foreign law was plain, there is most unlikely to have been relevant knowledge of unlawfulness on the part of the requesting Australian authorities.

Whether Australia had accepted Mr Mokbel’s surrender by Greece with knowledge of the unlawfulness of Greece’s conduct

As there was no illegality by Greek authorities, it was strictly unnecessary to consider the second issue. The Court nevertheless briefly recorded its view, as the issue was explored in argument.

It was observed that “[i]n the absence of obvious or glaring illegality of that kind, Australia as the requesting country will ordinarily be entitled to rely on assurances from the surrendering country that there is no impediment to the surrender under the applicable foreign law.”

Australian officials had relied on the assurance of the Greek government that, in the absence of interim measures, there was no impediment to Mr Mokbel’s extradition. That assurance was consistent with internal legal advice and Australia’s reliance upon it was reasonable.

Commentary

This case provides a useful overview of the current state of ECHR jurisprudence on article 34 of the Convention. At present, article 34 does not prohibit a Convention State from extraditing a person merely because they have filed an application with the ECHR for interim measures. As the trial judge observed, if that were the case an applicant would obtain “all of the practical benefits of interim measures merely by making his application and then notifying” the requesting state. It would render the interim measures sought unnecessary.

Also interesting is the commentary on how the Court should approach the task of ascertaining applicable European law. The Attorney-General for the Commonwealth intervened in the proceeding, submitting that the operation of the Convention was a matter of foreign law and therefore a question of fact to be proved by expert evidence. The Court noted that if the Convention could be regarded as international law, rather than foreign law, there is authority for the proposition that it need not be the subject of strict proof. The Court resolved the issue by noting that neither party had raised the point and that there was therefore tacit agreement that the trial judge could proceed without formal proof as to the various Convention matters raised.

The case also confirms that a country requesting extradition will ordinarily be entitled to rely on assurances from the surrendering country that there is no impediment to the surrender under foreign law. Foreign authorities have a closer understanding of their own law and are better placed to make the assessment.

This decision is available online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2013/118.html

Emma Newnham, Law Graduate, King & Wood Mallesons Human Rights Law Group