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1st Jan to 9th Sept 2005


On the consequences of the European Arrest Warrant

Update: In the original version of this article, I wrote that the European Arrest Warrant allows for extradition to take place if the offence is punishable by 1 year or more in prison in the country requesting extradition. This is only true if the offence exists in both jurisdictions, i.e. if dual criminality applies. As section 64(2) of the Extradition Act 2003 makes clear, extradition where there is no dual criminality requires the offence to be punishable by 3 years or more in prison. I have altered the article to correct this. Apologies for the mistake.

On the 1st October, Dr Frederick Toben, an Australian citizen, landed at Heathrow Airport whilst on a journey from America to Dubai.

He did not complete that journey.

Instead, he was arrested via a European Arrest Warrant, on a charge of ‘holocaust denial’, at the behest of the German government.

I strongly disagree with this man’s views, but he has as much right to express his views as I do. I am opposed to making holocaust denial an offence for the simple reason that it is contrary to freedom of expression. I also think it is wrong to prevent people, by law, from expressing scepticism or doubt about the generally accepted accounts of an historical events, since there is no guarantee that those accounts have managed to capture all the evidence surrounding those events or evaluate it fully and objectively. The best guarantee one can have is to allow people to make their arguments and to test each other’s arguments. Outlawing the expression of points of view that are in opposition to an officially accepted view means you hinder further advances in knowledge about the subject matter, not because the outlawed points of view are correct but because the debates and challenges that arise from allowing them to be expressed may lead to new insights or new evidence being discovered. Making an official point of view sacrosant turns history into dogma.

But this case is not merely about freedom of speech, or freedom of historical enquiry. It is also about the rule of law, and there are no British laws against holocaust denial.

So why has Toben been arrested? Because:

  • Toben runs a website that denies the holocaust happened.
  • Britain signed up to the European Arrest Warrant (EAW), which allows for fast-track extradition between EU states without any evidence being presented to the courts of the country performing the extradition and where there is no requirement that the conduct be an offence in both countries. The conduct needs only to be an offence in the country requesting extradition, so long as the offence falls into one of a broadly defined set of categories, and is punishable by 3 years or more in prison; Toben is apparently facing upto 5 years in a German prison.
  • With the internet, many countries, Britain included, are applying the principle that once someone downloads material in a particular jurisdiction (e.g. by reading a web page with their browser), that material has been published in that jurisdiction. Germany will therefore be claiming that Toben’s website has been published in Germany, even though he runs it from Australia, where there are also no laws making holocaust denial an offence, and thus that Toben committed an offence falling under the “Racism and Xenophobia” category that enabled them to request extradition under the EAW in the first place.

If Toben is extradited, then it will confirm that anyone (who is accused of) publishing, on the internet, any articles questioning the holocaust could be extradited to Germany from any other EU country without their local courts even getting a chance to see any evidence against them, regardless of whether their internet publications were legal in their own country or the country where the website is run from.

More generally, it means that one’s internet publications are effectively subject to the union of all the laws applying in the EU, where the offence is punishable by 3 or more years in prison, and which fall under the “Racism and Xenophobia” banner or any of the other 31 categories (e.g. “computer-related crime”), and you could be extradited to any other EU state on the accusation that your publication violated those laws. Anyone living in or travelling through any EU country can potentially be targetted with this legislation.

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