FEDERAL COURT OF AUSTRALIA
Tervonen v Finland [2008] FCA 781
EXTRADITION – review of surrender determination of Magistrate in respect of applicant – challenge to sufficiency of “supporting documents” under s 19 Extradition Act 1988 (Cth) – whether certain arrest warrants validly authenticated – whether arrest warrant backing for certain extradition offences – whether certain arrest warrants were for the arrest of the applicant for an extradition offence or for coercive investigation only – whether determination of latter issue foreclosed by High Court authority – whether dual criminality established for certain extradition offences – whether certain extradition offences barred by time limitation in Finland – whether applicant on remand for purposes of s 19 Extradition Act – whether notice of extradition request issued out of time for purposes of s 16 Extradition Act – whether applicant afforded reasonable time before Magistrate – grounds of review not made out – orders of Magistrate confirmed
Extradition Act 1988 (Cth), ss 5, 11, 12, 15, 16, 16(1), 16(2)(a)(i), 16(2)(a)(ii), 16(2)(b), 17(2)(a), 19, 19(1), 19(2), 19(2)(a), 19(3)(a), 19(7), 19(8), 19(9), 21, 21(2)(b)(i), 22
Extradition (Finland) Regulations, cl 3, cl 4, Sch 1, Sch 2
Treaty between Australia and Finland concerning Extradition, Arts 1, 7, 7(2)(d), 8, 8(2), 14Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32 related
Minister for Home Affairs v Tervonen [2008] FCAFC 24 related
Republic of Finland v Tervonen [2008] FCAFC 25 related
Tervonen v Finland [2007] FCA 2067 related
Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898 related
Tervonen v Minister for Justice and Customs [2007] FCA 1684; (2007) 98 ALD 589 related
Brock v United States of America (2007) 157 FCR 121 cited
Director of Public Prosections (Cth) v Kainhofer (1995) 185 CLR 528 followed
Dutton v O’Shane (2003) 132 FCR 352 at 386 cited
Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 discussed
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 appliedJAN TERVONEN v FINLAND and MAGISTRATE PAUL LYON
NSD 1286 OF 2007
GYLES J
29 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1286 OF 2007
BETWEEN:
JAN TERVONEN
ApplicantAND:
FINLAND
First RespondentMAGISTRATE PAUL LYON
Second Respondent
JUDGE:
GYLES J
DATE OF ORDER:
29 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The order of the second respondent, Magistrate Paul Lyon, made on 6 June 2007 be confirmed save in respect of the offences listed in paragraphs 55, 57 and 58 of the notice in writing dated 30 April 2007 signed by Senator Johnston pursuant to s 16 of the Extradition Act 1988 (Cth).
2.The applicant pay the costs of the first respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1286 OF 2007
BETWEEN:
JAN TERVONEN
ApplicantAND:
FINLAND
First RespondentMAGISTRATE PAUL LYON
Second Respondent
JUDGE:
GYLES J
DATE:
29 MAY…
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- Tervonen v Finland [2008] FCA 781
- Case
- [2008] FCA 781
- Decision Date
CaseChat Overview and Summary
The court determined that, despite the challenges faced by Tervonen, he had ample time to prepare for the extradition proceedings. The court found that the Magistrate's order should be confirmed, with the exception of the offences omitted from the amended s 16 notice due to an order of the Full Court. The court held that the Extradition (Finland) Regulations were applicable and that the Treaty provisions were correctly applied in this case. The applicant's challenges did not undermine the validity of the extradition process as conducted.
The final orders of the court were to confirm the Magistrate's order for extradition, with the exception of the specified offences, and to direct that the applicant pay the costs of the first respondent. This decision ensures that the extradition process is upheld while considering the applicant's circumstances to a reasonable extent.
Orders
Orders of the court
1. The order of the second respondent, Magistrate Paul Lyon, made on 6 June 2007 be confirmed save in respect of the offences listed in paragraphs 55, 57 and 58 of the notice in writing dated 30 April 2007 signed by Senator Johnston pursuant to s 16 of the Extradition Act 1988 (Cth).
2. The applicant pay the costs of the first respondent.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GYLES J
The Extradition (Finland) Regulations are also applicable. Clause 3 and cl 4 are as follows:“Declaration of Finland as extradition country3.Finland is declared to be an extradition country.Application of Act4.The Act applies in relation to Finland subject to the Treaty between Australia and Finland concerning Extradition that came into force on 23 June 1985 (being the treaty a copy of the English text of which is set out in Schedule 1) as amended by the Protocol between Australia and Finland amending that Treaty that came into force on 14 February 1986 (being the protocol a copy of the English text of which is set out in Schedule 2).”Schedule 1 consists of the Treaty and Sch 2 is the Protocol amending the Treaty. Articles 1, 7 and 8 of the amended Treaty are as follows:“Article 11.Each Contracting Party undertakes to extradite to the other Contracting Party, subject to the provisions of this Treaty, any person found in its territory who is charged by a competent authority with, or has been convicted of, an offence against the law of the other Contracting Party, whether committed within the territory of that Party or outside that territory in the circumstances referred to in paragraph 3.2. Extradition may be refused for an offence committed within the territory of the requested State, but if the offence has been committed within that territory by an officer or employee of the requesting State who is a national of the requesting State, the requested State shall, subject to its law, extradite the person sought unless it considers it proper not to do so, in which event it shall submit the case to its competent authorities for the purpose of prosecution.3. Extradition shall be granted in respect of an offence committed outside the territory of the requesting State only where the law of the requested State provides for the punishment of an offence committed outside its territory in similar circumstances.…Article 71.A request for extradition shall be made in writing. All documents submitted in support of a request for extradition shall be duly authenticated.2. The request for extradition shall be accompanied:(a) if the person is accused of an offence – by a warrant for the arrest or a copy of the warrant for arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the fugitive in respect of each offence;(b)if the person has been convicted of an offence – by such documents as provide evidence of the conviction and the sentence imposed, the fact that the sentence is immediately enforceable, and the extent to which the sentence has not been carried out;(c)if the person has been convicted of an offence but no sentence has been imposed – by such documents as provide evidence of the conviction and a statement affirming that it is intended to impose a sentence;(d)in all cases by documents setting out the relevant provision of the statute, if any, creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings, as the case may be, and in either case a statement of the punishment that can be imposed for the offence; and(e) in all cases by information as to the nationality and residence of the person and by documents that establish that the person whose surrender is sought is the person accused or convicted of the extraditable offence.3.To the extent permitted by the law of each Contracting Party extradition may be granted of a person sought pursuant to the provisions of this Treaty notwithstanding that the requirements of paragraph 2 of this Article have not been complied with provided that the person sought consents to an order for his extradition being made.Article 81.A document that, in accordance with Article 7, accompanies a request for extradition shall be admitted in evidence, if duly authenticated, in any extradition proceedings in the territory of the requested State.2.A document is duly authenticated for the purposes of this Treaty if:(a) in the case of a warrant it is signed, and in any other case its authenticity is certified, by a Judge, Magistrate or other competent authority in the requesting State; and(b) it is sealed with the official seal of a Minister of State or a Ministry of the requesting State.”Supporting documents