“The extradition system as it currently exists is only equipped to deal with fugitives pre-21st century,” leading criminologist and extradition expert, Dr Warren said. 

“Under the Extradition Act (1988) a person facing extradition must prove ‘special circumstances’ justify the claim. 

“This is because people wanted for extradition are also considered a significant flight risk. In Cabal, it was found ‘special circumstances’ must be ‘extraordinary’ and unique to the claimant compared with other extradition cases.”

“Even if special circumstances are proved and there is no flight risk, there is still no obligation to grant bail.”

Extradition proceedings for indefinitely imprisoned internet tycoon Zhenya Tsvetnenko have been adjourned to allow both parties more time to prepare.

Mr Robertson had said that Mr Tsvetnenko’s case was ‘entirely unnecessary and cruel’ and showed the problems of the extradition bail law.

“In the case of potential extradition Australian law does apply a general rule against granting bail unless they can show some extraordinary circumstance such as they may die if left to rot in prison or that the extradition request is nonsense,” Mr Robertson said.

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The delay for proceedings, originally scheduled for 5 and 6 March, will mean more time behind bars at Hakea Prison, for the father of two young children. A trial date will now be set on 5 October.

Mr Tsvetnenko, who has not been charged with any crime in Australia, has been gaoled since he was arrested by Federal Police at 5am on 20 December 2018.

Like other “unseen and unheard” Australians who have been accused by foreign states, bail has been consistently refused according to Mr Robertson.

The problem of bail 

Like Mr Tsvetnenko’s case, Australians can find themselves vulnerable when faced with very little choice with the federal courts judging on the circumstances of bail, according to Dr Warren.

“Delay is unlikely to be a special circumstance as it is common for extradition cases to take several years before a decision is made,” Dr Warren said.

“A risk of flight is also always considered likely, given the decision to extradite can expose a suspect to an unfamiliar criminal justice system with more complex procedures and harsher criminal penalties.

“The effect of a lengthy period of pre-extradition detention, which can often be served in a maximum security prison because of the presumed flight risk, combined with the uncertain outcome, can be financially and psychologically damaging for any person facing extradition.”

Australian federal courts acknowledge “special circumstances” establish a strong, but not conclusive presumption against bail. However, because the circumstances must be unique to a particular case, the threshold of proof is high.

The problems the profession may face

For Australian lawyers who may face these problems with their clients trapped in the international extradition process, it will require more careful preparation.

Like Mr Tsvetnenko, people who may never have been fugitives may find themselves facing allegations by countries they may not have stepped foot in at the time of the alleged activity.

According to Dr Warren, if a person or business is engaging in activity that complies with Australian law, this does not guarantee it is also compliant with the laws of any other nation.

“This problem is not new, but creates new burdens on legal professionals when advising clients given the ease of global digital communications,” Dr Warren said.

“At the bare minimum, legal advisers should be aware that a person’s activity might have criminal consequences elsewhere.”

Furthermore, Dr Warren said it would also be beneficial to have a strong knowledge of US laws relating to crime, business activity and intellectual property which is a good benchmark to follow in preventing the risk of extradition, because of the sophistication of its legal system.

“Once an extradition process has started, the main roles the profession can play involve providing moral support and attempting to obtain as much documentation about the alleged offending as possible, from both Australian and relevant international authorities,” Dr Warren said. 

A consequence of rapid technological change is that Australian internet entrepreneurs operating across international borders are increasingly likely to be policed by the foreign state. 

A fairer system for those accused under these circumstances is to follow the example of the UK, where the Forum Bar exists, and bring the evidence to the source of where the alleged harm occurred and try the accused in their own country amongst their peers.

According to Dr Warren, a Forum Bar approach may offer a fairer outcome for Australians accused of crimes in foreign states.

“It is commonly argued the Forum Bar offers a fairer approach for people accused of crime in foreign states when the alleged offending occurred on home soil,” he said.

“If satisfied, the Forum Bar shifts the location of the trial to the location of the offender, rather than the location of the offence.

“This requires evidence to be provided by the requesting state to enable the trial to be held in the suspect’s home country, amongst their peers and support networks.”

 Political implications 

The complex extradition bail laws can also have implications politically when examining how it falls in the relations between human rights, Australian policy and the UN.

Extradition would fall into a very “grey” area in the international political arena, reflecting a “tension between promoting positive relations between nations, respecting international human rights laws and domestic conceptions of due process,” Dr Warren said.

The Human Rights Law Centre, the Human Rights and Equal Opportunity Commission and the United Nations Human Rights Committee, have called for reform pointing out that the balance tips too heavily in favour of extradition with little regard to Australia’s human rights obligations.

“The presumption is any person who is extradited will face the same type of fair trial as a local citizen. However, this is often not the case for foreign nationals, who can face two forms of trial: the challenge to extradition itself, which could take several years, and the formal trial once extradition is granted,” Dr Warren said. 

“Several multilateral treaties aim to enhance international police and criminal justice cooperation, including the European Union Convention on Cybercrime and the United Nations Convention against Transnational Organised Crime, by fast tracking extradition.

“Politically, international organisations can admonish Australia for its approach to bail and extradition, but this can also contradict demands for greater cooperation in the suppression of crime from the same organisations.”

However, Dr Warren stated that extradition is quite rare compared with other criminal cases, and there are no legally binding consequences that stem from international concerns over a nation’s practices, with the political implications for Australia minimal.

“In fact, the political implications for failing to extradite to certain nations are likely to be more significant than those driven by international organisations such as the UN,” Dr Warren said.