It seems increasingly likely that the winner of the upcoming Ukrainian Presidential elections will be a man called Viktor Yanukovych. The name is probably unlikely to ring many bells outside of Ukraine itself, but perhaps it ought to.
Mr. Yanukovych was the sitting Prime Minister during the last term of former Preisdent Leonid Kuchma. In 2004, he became a Presidential candidate. In 2002, a coalition of opposition factions within the Ukrainian Parliament, led principally by Viktor Yushchenko and Yulia Tymoshenko, made a pact to run against the incumbent Party of the Regions. By mid-2004 this alliance had a name - the 'Force of the People'.
Ukrainian Presidential elections require a 50% majority to allow victory to be declared. Typically, in the first round of voting, no one candidate manages to achieve this, and thus a second ballot is held between the top two of the first poll. The official results of the 2004 election were that Yanukovych had won in the second round. However, numerous indepedent electoral observers stated their belief that the election had been rigged, and Yanushchenko, and his supporters began a series of mass protests. They wore orange, the colour of Yanushchenko's campaign, and thus the Orange Revolution was born.
The protest worked, and ultimately the election results were annulled. The matter had been referred to the Ukrainian Supreme Court, who ordered a re-vote, which Yanushchenko won by a clear margin. Thus, the Orange Revolution ended - it seemed it was a great day for democracy. Yanushchenko was pro-western, and it seemed to give hope that the nation would move towards EU membership and integration, and away from Russian influence.
However, Yanushchenko only polled 5.5% of the votes in the first round of the recent elections, meaning he will not return. Yulia Tymoschenko, the Prime Minister since 2004, is the nearest rival but it seems that her support is not strong enough. The Ukraine is lurching back towards the Kremlin.
This begs the question - why? The simple truth is that the government that arose post the Orange Revolution failed. It failed to address the corruption at the core of Ukrainian administration, which is perhaps what was most gravely needed. The crux of the problem came down to a power struggle between Yanushchenko and Tymoschenko. With constant infighting and backbiting between the legislature and executive, there was no hope of reform, and indeed it came to pass that no real progress has been made.
The sheer pettiness of the disputes, most ludicrously when Yushchenko effectively commandeered a plane that was due to transport Tymoshenko from Kiev to the western city of Lviv, forcing her to wait for alternative transport, shows the sheer level of idiocy that ensued. There were numerous allegations of corruption made against each other, regarding deposits of state owned assets into private accounts. Most troubling is the likelihood that some of these allegations may well be fact. The coalition between the two borke down in September of 2008, and from there on any hopes that the Orange Revolution had any lingering prospect of leading to meaningful change for the people of the Ukraine.
Spokespeople for Mr. Yanukovych state that he is a moderniser, that he is not simply a Kremlin stooge and will seek European integration. It is hard to believe this, based on his past record as Prime Minister. The Ukraine is a nation of burgeoning importance, a physical conduit for Russian gas and energy supplies into Europe. A great opportunity was missed after the successes of 2004, both for Europe as a whole to welcome a strategically valuable new partner, but most crucially of all for the Ukrainian people to live in a proper, functioning and mature democracy.
Given the failures of this administration it is hard not to forgive the electorate for turning their backs. It seems, however, that Russia may well be the only winner here, and given the struggle of the Ukrainians to be a free nation, and the terrible famines suffered there under the Russian aegis, such a victory is ill deserved. With its launch of a new military covenant this week, re-asserting the need for a nuclear arsenal, there can be little cause for cheer when it comes to the wider picture of progress for post-Soviet states.
Sunday, February 7, 2010
Tuesday, February 2, 2010
Extradition Law in the UK and Jersey
The Extradition (Jersey) Law 2004: Recent Developments
New extradition arrangements were introduced in the UK under the Extradition Act 2003 which also implemented the UK-US Extradition Treaty 2003. Similar arrangements were introduced in Jersey in the following year under the Extradition (Jersey) Law 2004 which is based on the UK Act.
The UK legislation was originally brought in to speed up extradition of terrorist suspects. However, a large amount of the offences have been for alleged indictable financial offences. Between 1 January 2004 and 31 July 2009 the Home Office received 95 extradition requests from the United States alone. The UK has made 42 requests of the US during the same period. Meanwhile, in Jersey, only four or five extradition requests have been received under the 2004 Law.
The 2003 Act has been subject to much criticism. This controversy has arisen because of the apparent double standards being applied to the relationship between the UK and the USA in particular. Under the legislation it remains much more difficult for the UK (and Jersey) to extradite from the US than for the US to extradite from the UK (or Jersey).
UK Controversy
The recent extradition request of the US government for Gary McKinnon who faces 97 counts of hacking NASA and military networks has highlighted the lack of safeguards in the legislation. The Director of Public Prosecutions concluded at the start of 2009 that there was not enough evidence to support a decision to prosecute Gary MacKinnon in the UK and the Home Affairs Select Committee have most recently requested that his extradition be blocked by the British government. Nevertheless, the Home Secretary has maintained that the evidence that must be provided for a US extradition request to proceed in the UK is in practice the same as for a UK request to proceed in the US and that the suggestion that the operation of the Extradition Act needs to be reviewed comprehensively is unnecessary. His statement makes clear that the government's view is that unless the evidence shows that extradition would breach the European Convention on Human Rights it would be unlawful for it to refuse extradition. Mitting J granted leave for Judicial Review of Mr. Mckinnon's case on 17th January 2010, providing some hope that the government will not prevail in this instance.
The test for extradition in Jersey
Under the 2004 Law a person can be extradited to a country ('a designated territory') listed in respect of alleged criminal conduct which occurred whether in Jersey, the designated territory or elsewhere (although different rules apply in each case).
There are two categories of designated territory:
· Schedule 1, Part 1 includes most European countries, the USA, Australia, Hong Kong, Canada and Russia;
· Schedule 1, Part 2 includes places such as Monaco, Panama and Singapore.
To be extradited for alleged criminal conduct, if that conduct has occurred in the designated territory, it must constitute an offence in the designated territory punishable by at least 12 months' imprisonment and it would also have to have constituted an offence punishable by that term in Jersey had it occurred here.
Where part of the conduct has occurred within Jersey, there is an additional requirement that in corresponding circumstances equivalent conduct would have constituted an extra-territorial offence under Jersey law punishable by imprisonment or detention of at least 12 months.
Extradition hearings are heard by the Magistrate, who can only bar extradition if
· It would infringe the double jeopardy rule ( i.e. a person cannot be prosecuted twice for the same offence);
· The request purpose is so that the person can be prosecuted or punished on account of their race, religion, nationality, ethnic origin, gender, sexual orientation or political opinions;
· If the request was granted the person would be prejudiced at trial, punished, detained or restricted on account of those issues listed above.
· It would appear unjust or oppressive because of the passage of time;
· There are hostage-taking considerations.
Beyond those matters, the Magistrate has very little discretion.
However, one of the few safeguards provided is that under the Act the Magistrate must be satisfied that the request contains admissible evidence of the offence sufficient to establish a prima facie case against the person. Unfortunately, this only applies to Part 2 designated territories. In relation to both Part 1 and 2, however, the Magistrate must be satisfied that the extradition is compatible with the European Convention on Human Rights.
Latest Developments in Jersey
Until recently, the provisions of the local 2004 Law have not been an active source of concern. However, recent developments in the wide ranging Australian Operation Wickenby tax investigation have brought the Law to the attention of the international media.
Philip de Figueiredo, principal of the Swiss accounting firm Strachans, is at the heart of the Wickenby probe, and faces criminal charges in Australia. He was arrested on 31 December 2008 in Jersey and faces a request from the Australian Federal Government for his extradition. Whilst he has never been to Australia the allegations he faces involve conduct with was intended to be felt and was actually felt in Australia.
Most recently, on 4 November 2009, Assistant Magistrate Bridget Shaw handed down a written judgment finding in the Australian's government's favour stating that she had not heard any evidence to show that there was any legal bar to his extradition or that it was unjust or oppressive. She insisted that Jersey, an international tax haven, had an obligation to play its role in the international community on white-collar crime. The matter is currently with the Attorney General who will make the extradition ruling. The Attorney General can only discharge the person if the offence in the designated territory could result in the death penalty or if there are no specific arrangements with the designated territory to ensure that the person is prosecuted only in respect of the offence for which he is extradited. If these do not apply, the Attorney General must order the person's extradition.
Future
Mr. de Figueiredo has yet to exhaust all potential avenues of appeal and may yet avoid extradition. There are rights to appeal to the Royal Court and ultimately to the Privy Council in relation to both the Magistrate's and the Attorney General's decisions. Extradition decisions are notoriously difficult to challenge as was seen in the English High Court's decision in the NatWest Three's appeal. In that case the court made it clear that the statute was clear and its procedure had to be followed. No discretion was vested in the court, the Secretary of State, or anyone else to deviate from it.
In any event the recent ruling of the Assistant Magistrate sets a significant precedent and the concerns over the 2003 UK Act may be about to become a concrete reality here in Jersey. It remains that the hurdles for the country seeking extradition are low and there is a very limited protection for the individual.
Many companies and trusts administered in Jersey have dealings or connections with countries listed within the Law, such as the USA and Australia. Most international transactions take place in US dollars and many e-mails pass through international servers.
There are 112 territories that can seek extradition under the 2004 Law. Vigilance in all financial matters has always been important. Now, to an even greater extent, it must be considered imperative; and indeed, I feel strongly that the reach of foreign jurisdictions into Jersey and the UK is something with which we should all be concerned.
New extradition arrangements were introduced in the UK under the Extradition Act 2003 which also implemented the UK-US Extradition Treaty 2003. Similar arrangements were introduced in Jersey in the following year under the Extradition (Jersey) Law 2004 which is based on the UK Act.
The UK legislation was originally brought in to speed up extradition of terrorist suspects. However, a large amount of the offences have been for alleged indictable financial offences. Between 1 January 2004 and 31 July 2009 the Home Office received 95 extradition requests from the United States alone. The UK has made 42 requests of the US during the same period. Meanwhile, in Jersey, only four or five extradition requests have been received under the 2004 Law.
The 2003 Act has been subject to much criticism. This controversy has arisen because of the apparent double standards being applied to the relationship between the UK and the USA in particular. Under the legislation it remains much more difficult for the UK (and Jersey) to extradite from the US than for the US to extradite from the UK (or Jersey).
UK Controversy
The recent extradition request of the US government for Gary McKinnon who faces 97 counts of hacking NASA and military networks has highlighted the lack of safeguards in the legislation. The Director of Public Prosecutions concluded at the start of 2009 that there was not enough evidence to support a decision to prosecute Gary MacKinnon in the UK and the Home Affairs Select Committee have most recently requested that his extradition be blocked by the British government. Nevertheless, the Home Secretary has maintained that the evidence that must be provided for a US extradition request to proceed in the UK is in practice the same as for a UK request to proceed in the US and that the suggestion that the operation of the Extradition Act needs to be reviewed comprehensively is unnecessary. His statement makes clear that the government's view is that unless the evidence shows that extradition would breach the European Convention on Human Rights it would be unlawful for it to refuse extradition. Mitting J granted leave for Judicial Review of Mr. Mckinnon's case on 17th January 2010, providing some hope that the government will not prevail in this instance.
The test for extradition in Jersey
Under the 2004 Law a person can be extradited to a country ('a designated territory') listed in respect of alleged criminal conduct which occurred whether in Jersey, the designated territory or elsewhere (although different rules apply in each case).
There are two categories of designated territory:
· Schedule 1, Part 1 includes most European countries, the USA, Australia, Hong Kong, Canada and Russia;
· Schedule 1, Part 2 includes places such as Monaco, Panama and Singapore.
To be extradited for alleged criminal conduct, if that conduct has occurred in the designated territory, it must constitute an offence in the designated territory punishable by at least 12 months' imprisonment and it would also have to have constituted an offence punishable by that term in Jersey had it occurred here.
Where part of the conduct has occurred within Jersey, there is an additional requirement that in corresponding circumstances equivalent conduct would have constituted an extra-territorial offence under Jersey law punishable by imprisonment or detention of at least 12 months.
Extradition hearings are heard by the Magistrate, who can only bar extradition if
· It would infringe the double jeopardy rule ( i.e. a person cannot be prosecuted twice for the same offence);
· The request purpose is so that the person can be prosecuted or punished on account of their race, religion, nationality, ethnic origin, gender, sexual orientation or political opinions;
· If the request was granted the person would be prejudiced at trial, punished, detained or restricted on account of those issues listed above.
· It would appear unjust or oppressive because of the passage of time;
· There are hostage-taking considerations.
Beyond those matters, the Magistrate has very little discretion.
However, one of the few safeguards provided is that under the Act the Magistrate must be satisfied that the request contains admissible evidence of the offence sufficient to establish a prima facie case against the person. Unfortunately, this only applies to Part 2 designated territories. In relation to both Part 1 and 2, however, the Magistrate must be satisfied that the extradition is compatible with the European Convention on Human Rights.
Latest Developments in Jersey
Until recently, the provisions of the local 2004 Law have not been an active source of concern. However, recent developments in the wide ranging Australian Operation Wickenby tax investigation have brought the Law to the attention of the international media.
Philip de Figueiredo, principal of the Swiss accounting firm Strachans, is at the heart of the Wickenby probe, and faces criminal charges in Australia. He was arrested on 31 December 2008 in Jersey and faces a request from the Australian Federal Government for his extradition. Whilst he has never been to Australia the allegations he faces involve conduct with was intended to be felt and was actually felt in Australia.
Most recently, on 4 November 2009, Assistant Magistrate Bridget Shaw handed down a written judgment finding in the Australian's government's favour stating that she had not heard any evidence to show that there was any legal bar to his extradition or that it was unjust or oppressive. She insisted that Jersey, an international tax haven, had an obligation to play its role in the international community on white-collar crime. The matter is currently with the Attorney General who will make the extradition ruling. The Attorney General can only discharge the person if the offence in the designated territory could result in the death penalty or if there are no specific arrangements with the designated territory to ensure that the person is prosecuted only in respect of the offence for which he is extradited. If these do not apply, the Attorney General must order the person's extradition.
Future
Mr. de Figueiredo has yet to exhaust all potential avenues of appeal and may yet avoid extradition. There are rights to appeal to the Royal Court and ultimately to the Privy Council in relation to both the Magistrate's and the Attorney General's decisions. Extradition decisions are notoriously difficult to challenge as was seen in the English High Court's decision in the NatWest Three's appeal. In that case the court made it clear that the statute was clear and its procedure had to be followed. No discretion was vested in the court, the Secretary of State, or anyone else to deviate from it.
In any event the recent ruling of the Assistant Magistrate sets a significant precedent and the concerns over the 2003 UK Act may be about to become a concrete reality here in Jersey. It remains that the hurdles for the country seeking extradition are low and there is a very limited protection for the individual.
Many companies and trusts administered in Jersey have dealings or connections with countries listed within the Law, such as the USA and Australia. Most international transactions take place in US dollars and many e-mails pass through international servers.
There are 112 territories that can seek extradition under the 2004 Law. Vigilance in all financial matters has always been important. Now, to an even greater extent, it must be considered imperative; and indeed, I feel strongly that the reach of foreign jurisdictions into Jersey and the UK is something with which we should all be concerned.
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