Australia in breach of International Covenant on Civil and Political Rights

28.04.2015

Griffiths v. Australia (1973/2010)

Summary

In October 2014, the Human Rights Committee was asked to consider whether Australia had violated its obligations under the International Covenant on Civil and Political Rights in connection with its detention of an individual subject to extradition proceedings.

The communication was submitted by a British citizen with permanent residency in Australia under the Optional Protocol to the Covenant.

Background

Griffiths v. Australia (1973/2010)

Summary

In October 2014, the Human Rights Committee was asked to consider whether Australia had violated its obligations under the International Covenant on Civil and Political Rights in connection with its detention of an individual subject to extradition proceedings.

The communication was submitted by a British citizen with permanent residency in Australia under the Optional Protocol to the Covenant.

Background

The author, Mr Griffith, is a British citizen who had permanently resided in Australia since the age of seven. In Australia, he had been involved in an Internet group that made copies of software and computer games available to be downloaded by its members. The group was not motivated by profit and made no financial gain by their activities.

In 2000, the Customs Service of the Unites States of America started an investigation into Internet software piracy groups. On 11 December 2001, the Australian Federal Police seized the author’s computer in connection with possible copyright infringement. On 12 March 2003, the United States District Court for the Eastern District of Virginia indicted him with criminal copyright infringement and conspiracy to violate copyright laws. The Court argued that the relevant acts entailing the breach of copyright occurred in the Eastern District of Virginia because it was where the material was downloaded by end users. On the same date, the Court issued an arrest warrant against the author in connection with the charges.

On 19 June 2003, the Unites States authorities requested the author’s extradition from Australia. On 28 July 2003, the Australian Minister for Justice and Customs issued a notice of receipt and extradition request.

On 20 August 2003, a provisional arrest warrant was issued by the Australian authorities. On 22 August 2003, the author was arrested and placed in custody at the Gosford Police Station. He was subsequently transferred to the Metropolitan Remand and Reception Centre at the Silverwater Correctional Complex. On 15 October 2003, the Central Local Court granted him bail and released him conditionally.

On 25 March 2004, the author successfully challenged the Unites States extradition application before the Australian Local Court of New South Wales. The Court found that the author did not satisfy the “double criminality” requirement under the Extradition Act, according to which a person is eligible for extradition if “the conduct constituting the office” in the requesting country would have constituted an extradition offence “in the part of Australia where the proceedings are being conducted”.

The Unites States authorities submitted an appeal to the Federal Court of Australia. On 7 July 2004, the Court reversed the decision of 25 March 2004. On the same date, the Court ordered the author’s arrest.

On 10 July 2004, the author was placed in custody at the Metropolitan Remand and Reception Centre, pending extradition. On the same date, his bail application was denied.

The author appealed the decision of 7 July 2004 to the Full Court of the Federal Court of Australia. On 10 March 2005, the Court confirmed the decision of 7 July 2004 and ruled that the offence of conspiracy was a continuing offence that had occurred in the Unites States, notwithstanding the author’s physical presence in Australia.

On 2 September 2005, the author applied for special leave to appeal before the High Court of Australia, which rejected his application on 2 September 2005, on the basis that the arguments he had advanced had insufficient prospects of success.

On 6 September 2005, the Australian Attorney General invited the author to submit written submissions to the Minister for Justice and Customs. On 22 December 2006, the Minister made a final determination that the author should be extradited to the Unites States and issued a warrant for the extradition. On 9 February 2007, the author made a final application to the Federal Court of Australia, seeking the review of the Minister’s decision of 22 December 2006, which was rejected on the same date.

On 17 February 2007, the author was extradited to the Unites States from Australia and remanded in detention.

On 20 February 2007, the District Court in Alexandria, Virginia, charged him with the copyright offences. On 23 February 2007, his application for release on bail was denied.

On 20 April 2007, the author entered a guilty plea to one count of conspiracy to commit criminal copyright infringement, with the remaining count of copyright infringement having been dismissed. On 22 June 2007, the District Court in Alexandria found him guilty of conspiracy to commit copyright infringement and sentenced him to 51 months imprisonment. The Court took into consideration the time already served in custody in Australia, and ordered that he serve a total of 15 months in custody in the United States. On 26 January 2008, the author was released. On 2 March 2008, he returned to Australia.

On 22 February 2010, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that Australia had violated his rights to: (i) freedom from arbitrary detention, (ii) due process in extradition proceedings, and (iii) fair trial (under articles 9, 13 and 14 of the Covenant respectively), as well as claiming that Australia had failed to legislate to give effect to the rights protected under the Covenant (under article 2(2) of the Covenant).

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee noted the author’s claim under article 2(2) of the Covenant and recalled its jurisprudence that the provisions of article 2 lay down only general obligations for State parties. Accordingly, article 2(2) did not afford a separate individual right that could be invoked in a communication under the Optional Protocol. The Committee also found the author’s claims under articles 13 and 14 were inadmissible for lack of substantiation and that the author’s claim under article 9(3) of the Covenant was inadmissible ratione materiae, as this provision did not apply in extradition proceedings. The Committee found that the author’s remaining claims under article 9 of the Covenant were admissible.

On the merits, the Committee recalled its jurisprudence that under article 9 of the Covenant detention should not continue beyond the period for which the State party can provide appropriate justification. The Committee noted that the author had been detained for an uninterrupted period of over two years and five months, during which time he had pursued avenues for appeal. While Australia had advanced reasons to justify his detention, the Committee observed that it had failed to demonstrate that those reasons justified the author’s continued detention in the circumstances. In particular, Australia had not demonstrated that there were not less invasive means of achieving the same ends. Australia had also failed to show whether due regard had been given to the author’s arguments in support of his release, such as his compliance with previous bail conditions, his low flight risk, the absence of a past criminal record or his health condition. The Committee also noted that detention pending extradition was not limited in time under Australian law and that, as a general rule persons “are to be held in custody whether or not their detention is necessary”.

With respect to the author’s claim under article 9(4) of the Covenant, that there were no effective and available remedies for him to obtain a judicial review of his continuous detention, the Committee recalled that a judicial review of the lawfulness of detention under article 9(4) is not limited to mere compliance of the detention with domestic law, but must include the possibility to order a release if the detention is incompatible with the requirements of the Covenant. For the purposes of article 9(4), such a review must also be more than merely formal. In the present case, the author had been detained pending extradition for over two years, with neither any chance of obtaining substantive judicial review of the continued compatibility of his detention with the Covenant, nor of being released on this ground. In the circumstances, the Committee considered that the author had been effectively precluded from taking effective proceedings before a court to obtain a review of the lawfulness of his continuing detention. Such an inability to challenge a detention that was or had become contrary to article 9(1) constituted a violation of article 9(4) of the Covenant. The Committee also found that Australia had not demonstrated that the author had an effective remedy with regard to his claim under article 9(4) of the Covenant.

In the light of the above, the Committee considered that Australia had violated the author’s rights under article 9(1 and 4) of the Covenant. In accordance with article 2(3)(a) of the Covenant, the Committee observed that Australia was under an obligation to provide the author with an effective remedy, including adequate compensation. The Committee found that Australia was also under an obligation to prevent similar violations in the future, including reviewing its legislation and practice.

Australia must now submit its written response within six months of the Committee’s decision, including information on the action taken in the light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.

Category:

Region
  • Pacific
Topic
  • Treaty body strengthening process
Mechanism
  • Human Rights Committee (CCPR)
Country
  • Australia