Extradition from Colombia to the United States—Fake Passport Ring

Colombia claims to have “broken up a ring that provided false passports to members of al-Qaeda and Hamas.”^[1] 19 individuals in five Colombian cities have been arrested and “accused of forging passports for Pakistani, Jordanian, Iraqi and Egyptian citizens, who could then travel to the US and Europe.”^[2] Colombia began the investigation in August, 2002, when it found three Iraqis with false passports in Bogota.^[3]

The United States assisted in the investigation, thinking that the operation involved only “people posing as members of Colombia’s largest rebel army, the Revolutionary Armed Forces of Colombia, or FARC.”^[4] The surprise for the Americans came as it was disclosed that the ring allegedly provided false passports to people with terrorist ties, a revelation that will surely strengthen suspicions that drug traffickers and terrorists are working together, a suspicion we have mentioned earlier. According to Colombia’s acting Attorney General, Jorge Armando Otalora, “[a]n undisclosed number of those arrested are wanted for working with the al Qaeda terror network and the militant Palestinian group Hamas.”^[5]

The fraudulent passports were not modeled on those issued by the United States, but rather those issued by Colombia, Spain, Portugal, and Germany.^[6]

Despite the allegations that the passport ring has ties to terrorism, the United States is seeking to extradite 10 individuals—8 of whom have been arrested—on charges that they smuggled “people that they thought were members of FARC into the United States.”^[7] As far as the US DOJ is concerned, they “are not alleging any connections to any terror organization other than the FARC.”^[8]

Extradition from Colombia to the United States has become increasingly simplified in recent years, with mass-extradition flights having been established in 2004. The extradition treaty between Colombia and the United States contains a hybrid Extraditable Offenses clause.^[9] On one hand, it has a laundry list of offenses appended to the treaty which includes things like murder, rape, kidnapping, embezzlement, arson, counterfeiting, forgery, piracy, narcotics trafficking, bribery, and tax evasion.^[10] Note that the list also includes offenses related to the importation of people.^[11] If this offense was not included in the appendix, it would not be too much of a problem, because, as noted, the treaty is a hybrid and it contains a dual-criminality clause as well: “Offenses, whether listed in the Appendix to this Treaty or not, provided they are punishable under the Federal laws of the United States and the laws of the Republic of Colombia,” are also extraditable offenses.^[12]

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[1] ’Al-Qaeda link’ to Colombia Ring, BBC News, Jan. 27, 2006.
[2] Id.
[3] Id.
[4] Colombia Busts Fake Passport Ring with Terrorist Ties Associated Press (via CTV news), Jan. 27, 2005.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] See Extradition Treaty, Sep. 14, 1979, U.S.-Colom., art. 2, S. Treaty Doc. No. 97-8 (1976).
[10] Id. appx.
[11] Id. appx. para. 23.
[12] Id. art. 2 para. 1(b).

Extradition from Australia to Croatia—Captain Dragan Denied Bail

Dragan Vasiljkovic, whose extradition case we have been following for the past few weeks will not be released from detention in Australia.^[1] According to his lawyer, Mr. Vasiljkovic presented a low risk of flight, and that he is “a man of impeccable character who [is] a ‘hero’ in the local Serbian community and ha[s] his mother, brother, sister, two of his children, three grandchildren and nieces and nephews living in Australia.”^[2] The court however, thought otherwise. Magistrate Judge Allan Moore said there were no special circumstances for bail: "I am not satisfied at this point in time that special circumstances exist and bail is refused."^[3]

Furthermore, according to his lawyer, Mr. Vasiljkovic is facing only non-serious crimes: "There is only one physical act of violence alleged against this man," said the lawyer. "In all that material it is said he kicked somebody else. The rest relates to alleged failure to control alleged subordinates (while he was a paramilitary commander in the Balkans)."^[4]

However, the lawyer also says that there is no extradition treaty between Australia and Croatia, which is, as we have pointed out, plainly false.

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[1] Balkans War Crimes Suspect Refused Bail, Sydney Morning Herald, Jan. 27, 2006.
[2] Id.
[3] Id.
[4] Id.

Extradition from the United States to Chile—Lucia Pinochet

The eldest daughter of Chile’s former dictator Augusto Pinochet is the subject of an expected extradition request from Chile^[1] at the same time that she is seeking asylum in the United States.^[2]

First, we’ll address the extradition request. According to the AP, Judge Carlos Cerda has asked Chile’s Supreme Court to “approve a request for the United States to extradite” Lucia Pinochet.^[3] No date is set for action on the request, and extradition requests are allowed “only if they are approved by the [Chilean] Supreme Court.”^[4] She is wanted in Chile on charges of tax evasion and using a false passport, charges that are related to the prosecution of her father, Augusto Pinochet, who has also been indicted on tax evasion charges.^[5]

And now we turn to the asylum request. When Ms. Pinochet arrived at Washington DC’s Dulles airport from Argentina, she was denied entry because of the Chilean charges.^[6] She then asked for political asylum after being detained.^[7] She is “expected to argue that Chilean courts are unable to give her a fair trial and that her family faces political persecution in Chile.”^[8] If her asylum request is rejected, which many believe will happen, she is supposed to be returned to Buenos Aires, from where she departed for the United States.^[9] If that happens, then Chile’s extradition request would be made to Argentina rather than the United States.^[10]

A large amount of cloak-and-dagger intrigue has gone into tracking Ms. Pinochet across Latin America. On Monday, 8 people close to General Pinochet, including his wife and children, were scheduled to appear in court; when they arrived they were arrested, except for Lucia Pinochet who disappeared.^[11] Chilean police, monitoring her mobile phone, tracked her to “a remote Chilean town near the border with Argentina.”^[12] By the time authorities reached the town, she and her son had crossed the border, and on Tuesday evening she boarded a plane bound for Brazil, where she continued on to Washington, DC.^[13] By that point, “[w]ith her escape route now being monitored by Chile, Brazil and Argentina, a frenzied round of diplomatic manoeuvres unfolded as the US prepared to receive a fugitive member of the Pinochet clan.”^[14]

Ms. Pinochet’s asylum request will be the second high-profile Latin-American asylum request in recent months. At the end of August, we began discussing Luis Posada-Carriles who also sought asylum. He eventually did not receive asylum, but he also isn’t going to be extradited to either Cuba or Venezuela because of fears that he may be tortured there.

Asylum is governed by 8 U.S.C. § 1158(b)(1) which states that asylum may be granted to a person who is determined by the Attorney General to be a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). Under this definition, a refugee is “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”

The key for Ms. Pinochet is to somehow prove that the phrase “membership of a particular social group” applies to her as a member of the Pinochet family.

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[1] Judge Asks Extradition of Pinochet Daughter from U.S. Associated Press (via Billings Gazette), Jan. 26, 2006.
[2] Jonathan Franklin, Pinochet Daughter Seeks Asylum in US, Guardian, Jan. 26, 2006.
[3] AP, supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] Franklin, supra note 2.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.

Extradition from Mexico to the United States—Daniel Perez

American prosecutors have been chomping at the bit after Mexico’s Supreme Court invalidated a law prohibiting life imprisonment in November. The first test extradition case, involving Daniel Perez, has begun.^[1] Mr. Perez was arrested in Mazatlan on Monday, “more than six years after his ex-wife, [Anabella Vara,] was kidnapped and shot and her father was killed.”^[2] In a rarity, Mr. Perez was convicted in absentia of attempted murder and sentenced to 33 years in prison.^[3]

After Ms. Vara’s father testified against Mr. Perez, he was killed in his Fontana, California home; L.A. prosecutors have pledged not to seek the death penalty against Mr. Perez.^[4]

The 1978 extradition treaty between the United States and Mexico states that extradition can be had for “person who the competent authorities of the requesting Party have charged with an offense or have found guilty of committing an offense, or are wanted by said authorities to complete a judicially pronounced penalty of deprivation of liberty.”^[5] The treaty contains a hybrid Extraditable Offenses provision; it contains both a laundry list of offenses, as well as a dual-criminality clause.^[6] Furthermore, if the request is “for the execution of a sentence,” there still must be at least six months of the sentence remaining to be served.^[7]

The treaty also contains a non bis in idem clause which states that “[e]xtradition shall not be granted when the person sought has been prosecuted or has been tried and convicted or acquitted by the requested Party for the offense for which extradition is requested.”^[8] The key here is that this clause prevents the suspect from being subject to double jeopardy by being punished both in the requested state and in the requesting state. It does not bar extradition for a person who is convicted in absentia, in the requesting state.

Of course, this may all be moot if Mexico continues to arrest suspects and send them back to the United States extrajudicially, as we have seen with Arthur March and Tongsun Park.

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[1] L.A. Seeks Murder Suspect’s Extradition, Associated Press (via Houston Chronicle), Jan. 25, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Extradition Treaty, May 4, 1978, U.S.-Mex., art. 1, para. 1, 31 U.S.T. 5059; TIAS 9656.
[6] Id. art. 2.
[7] Id. art 2, para. 2.
[8] Id. art. 6.

Extradition from the Bahamas to the US and from Ireland to the US—Delays

Seven men fighting extradition to the United States have had their case assigned to a Bahamas Supreme Court judge.^[1] Trevor Roberts, Sheldon Moore, Brian and Lynden Deal, Devroy Moss, Shanto Curry and Gordon Newbold are facing drug charges in the United States, but they are challenging their arrest on Constitutional grounds.^[2]

Specifically, they “are challenging the Listening Devices Act, which gives the Commissioner of Police the authority to permit recordings of private conversations”; evidence from recorded telephone calls had previously been ruled admissible by Magistrate Judge Carolita Bethel.^[3] They are also challenging their arrest based on the “stipulations in the search warrants.”^[4]

Interestingly enough, a Bahamas Supreme Court, which is analogous to the District Court in the US Federal Judiciary,^[5] or the Supreme Court in New York State, had previously declared the extradition treaty between the United States and the Bahamas null and void, but that decision was overturned by the Court of Appeal.^[6] We saw a similar situation in Liberia earlier this month when Judge James Zotaa declared the extradition treaty between Liberia and the United States null and void as he refused to order the extradition of Wilma Bailey and Melee Kermue.

In other extradition news, Frederick Russell’s hearing has been delayed. If you recall, Mr. Russell is currently in Ireland fighting extradition to Washington State to stand trial there for vehicular homicide. His case has been marked with controversy as Ireland rarely extradites people to the United States. Yesterday, it was reported that his extradition hearing would begin,^[7] but it has abruptly ended.^[8] His legal team is still waiting for replies to two affidavits from America.^[9] A new hearing has been set for February 22.

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[1] Stephen Gay, Delay in Extradition Case, The Bahamas Journal, Jan. 24, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] See The Judicature of the Commonwealth of the Bahamas, Bahamas.gov.bs, last visited Jan. 24, 2006. The highest court in the Bahamas does not actually sit in the Bahamas. The Judicial Committee of her Majesty’s Privy Council sits in London, England, and hears appeals from the Court of Appeal. Id.
[6] Gay, supra note 1.
[7] American Fugitive Begins Extradition Fight, Irish Examiner, Jan. 24, 2006.
[8] US Extradition Case Adjourned at High Court, RTE News, Jan. 24, 2006.
[9] Id.

Extradition from New Zealand to Australia—Charges Dropped

The extradition case against Edward John Woodhouse Lee has ended as Australian authorities have dropped the charges pending against him.^[1] Mr. Lee, a 21 year-old pilot, was charged with committing a dangerous act causing death.^[2] He was accused of killing a 29 year-old Canadian citizen at a party at Kings Creek Station in Central Australia when “ignited aviation gas being used as a makeshift lantern was inadvertently cast in her direction.”^[3]

When Northern Territory police issued a summons against Mr. Lee, they “at the time admitted current laws meant Lee could not be extradited from New Zealand.”^[4] However, the charges have been withdrawn because “there was no legislative equivalent of the charge in New Zealand.”^[5] There is no statute of limitations on the charge, however, so if Mr. Lee ever returns to Australia, he could be arrested.^[6]

In 1999, New Zealand modernized its extradition law. Prior to this, New Zealand required an extradition treaty in order to extradite a person to a non-Commonwealth country, but now it “provides a simplified procedure for New Zealand to give effect to requests for extradition from Australia and certain other designated countries.”^[7] As expected, the Extradition Act of 1999 contains a dual-criminality clause defining an extradition offense as one which is punishable under the laws of both countries by imprisonment for at least one year.^[8] It furthermore states that an extradition treaty is not required for other Commonwealth countries.^[9]

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[1] Extradition Laws Sees Kiwi Get Off, One News (via tvnz.co.nz), Jan. 23, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Department of the Attorney General, A New Extradition System – A Review of Australia’s Extradition Law and Practice, at Appx. 3, Dec. 22, 2005.
[8] Extradition Act of 1999 § 4(1).
[9] Id. § 14.