In the year 1997, on Friday, October 17th, a session of the Supreme Court [of Iceland] hearing case No. 302/1997:
The Prosecution
(Bragi Steinarson, Asst. Director of Public Prosecutions)
vs.
Connie Jean Hanes and
Donald Hanes
(Ragnar T�mas �rnason, District Court Attorney)
delivered the following
The judges in this case are Supreme Court Judges Haraldur Henrysson, Gunnlaugur Claessen, Hj�rtur Torfason, Hrafn Bragason and P�tur Kr. Hafstein.
The prosecution appealed the case to the Supreme Court with a charge dated July 9, 1997, which was received by the Court, together with the documentary evidence to support the charge, on the 11th of that same month. The appeal charges contest a ruling, issued by the Reykjav�k District Court on July 7, 1997, which found that the conditions set by [Icelandic] law for the extradition of the defendants to the United States were not satisfied. The legal basis for appeal is provided by Article 142 of the Criminal Proceedings Act No. 19/1991, cf. Article 24 of Act No 13/1984 on the Extradition of Criminals and Other Assistance in Criminal Cases. The prosecution demands that the ruling under appeal be invalidated and a judgement handed down to the effect that the conditions set by law for complying with the request of the US authorities for the extradition of the defendants to the US are satisfied.
The defendants demand the affirmation of the ruling under appeal and that payment of costs incurred due to defence in the case before the Supreme Court be made from the National Treasury. Several new documents in the case have been submitted to the Supreme Court.
As described in the ruling of the District Court, US authorities requested, in a letter dated March 4, 1997, to the [Icelandic] Ministry for Foreign Affairs, that the defendants be extradited to the US to face criminal charges which had been filed against them there. The application was delivered to the [Icelandic] Ministry of Justice which forwarded it, with an accompanying letter, to the Director of Public Prosecutions on March 14th of this year. The letter stated that the request was sent to the Director of Public Prosecutions for appropriate treatment. He [the Director] sent it to the State Criminal Investigation Police on the 18th of that same month with a request for an investigation. Reference was in this connection made to the second paragraph of Article 13 of Act No. 13/1984. In addition, it was mentioned especially that a demand should be made that the defendants be placed under travel ban immediately upon the inception of the investigation and until the result of the case was decided. This demand was subsequently refused by a decision of the Reykjav�k District Court on April 23, 1997.
The defendants gave a report to the State Criminal Investigation Police on April 1, 1997 regarding the case. In their protocol to the report, they iterated the position which they had previously taken, i.e. that they were prepared to travel on their own volition and at their own expense from Iceland to the United States and present themselves to the court in the State of Arizona, which is to judge the case which gave rise to the request for extradition. The condition was set, however, that the international warrant for their arrest, which had been issued by the US authorities, be cancelled, so that they would be able to travel unfettered to their destination in Arizona. Failing this they would be arrested immediately upon entering the US and transported in irons to the destination under the rules applicable to the transport of prisoners within the United States. [They claimed that] the treatment received by individuals subject to such transportation involved much unnecessary discomfort and humiliation, which they wished to avoid. They stated at the same time that they were prepared to agree to any sort of supervision or escort on their journey from Iceland to the court in question in the above-mentioned state to prevent them from fleeing. In addition, they expressed their wish the Icelandic authorities might use their influence to achieve such a solution. In the protocol it was stated that until this demand was met, they would oppose the request for extradition. A statement submitted to the District Court on April 22, 1997, explained that they had opposed the request for extradition only due to the fact that this demand was refused.
Among the evidence in the case are letters from the defendants� US attorney to the public prosecutor in Arizona who is to prosecute the case against them there. They are written on March 12 and March 28, 1997, and include a request concerning the journey of the defendants from Iceland to Arizona in the manner previously referred to. The letters also indicate that the attorney had submitted the same proposals to a representative of the US national government, which had indicated that it was prepared to give its consent, provided the consent of the prosecution authorities in Arizona was forthcoming. The second letter requested a prompt reply so that the defendants would be able to make the necessary arrangements for their journey. According to the evidence submitted in the case neither of these letters from the US attorney nor his oral inquiries have been answered.
Following the delivery of the ruling under appeal, on July 7, 1997, the US attorney once more wrote a letter to the public prosecutor in Arizona on August 6, 1997. It states that the defendants are willing, as before, to present themselves in Arizona of their own volition. They now set three conditions, however, which must be fulfilled. Firstly, that all warrants for their arrest be cancelled. Secondly, that an agreement be reached on reasonable bail to be set when their case is first brought before court, so that they will not have to remain in custody while awaiting a verdict in their case. Thirdly, that the public prosecutor agree that, should they be found guilty of the charges, the defendants will not have to serve any sentences in Maricopa County, Arizona. This third condition [they state] is set in light of the ruling under appeal, where the conclusion was reached that the treatment of prisoners in the prisons of this county was inhumane. At the end of the letter it is stated that the sooner agreement is reached on the conditions set by the defendants, the sooner they can depart on their journey.
A reply was received from the public prosecutor dated September 2, 1997. It states that at the present time it is not possible to agree to the conditions set by the defendants, without any further explanation being given.
The defense counsel appointed for the defendants informed the Ministry of Justice of the above-mentioned protocol made by his clients to the State Criminal Investigation Police the same day it was made and the US Embassy in Iceland the following day. In the case for the defense it is stated that this was done in the hope that these parties might use their influence to seek a satisfactory solution in the case. No replies were received, but a representative of the Ministry did, however, comment on the protocol to the media. The defense counsel thus repeated the request expressed in the protocol in a letter of April 21, 1997. In a letter sent to the defense counsel the following day the Ministry stated that it had neither conveyed to the US authorities a request for the withdrawal of the request for extradition, in order that another solution could be found in the case, nor any other request, as the case was being dealt with by the Reykjav�k District Court. Upon receiving this response, the defense counsel wrote yet another letter to the Ministry on April 23 of this year and pointed out that the defendants had expressly requested that the Ministry use its influence to seek a solution in the case while the Court proceedings were underway. An answering letter sent by the Ministry on May 9, 1997 stated that the Ministry did not consider it as its role to serve as intermediary in negotiations between the defendants and the US authorities. Should the Courts decide, however, that the legal conditions for extradition were satisfied, the Ministry would assess the claims submitted by the defendants to the effect that they would be subject to humiliating treatment in their transportation as prisoners to their destination in the US.
The defendants report that no response was received from the US Embassy in Iceland to the protocol.
In a statement presented to the Reykjav�k District Court on May 13, 1997, the defendants state that they were, for the above-mentioned reasons, forced to persevere in referring the request of the United States for their extradition to a court of law, despite the fact that they had repeatedly offered to present themselves on their own volition to the US court which is to try their case. It is also stated that they agreed that it was only reasonable that they stand trial for their actions in the US. They hope that the courts there will judge their doings fairly and take into account the many mitigating circumstances. They base their defense on the contention that Icelandic courts should not rule that the conditions for extradition have been satisfied until it is finally evident that the authorities in this country have not been able to comply with reasonable demands seeking to find a solution to the case through other and more lenient remedies. [They claim that] the prosecution has not demonstrated such remedies to be unavailable, should the Icelandic authorities use their influence on behalf of the defendants to achieve them. Should it turn out that the case could not be resolved, in a fashion in accordance with the demands of the defendants, the courts should then, in the light of such, decide whether the conditions for extradition are satisfied, inter alia having regard to humanitarian questions.
At the same time, the defendants point out that it is to their substantial advantage to be given an opportunity to present themselves without delay before the judge in Arizona, who will decide whether they may remain at large on bail while the case is being processed. Should they, on the other hand, appear before the court as extradited prisoners, such would greatly reduce their chances of going free on reasonable bail until a verdict was pronounced. Until a decision was taken on their bail they would be held in prison. The same would apply should a decision be reached to set the amount of bail so high that it would be beyond their financial means. Such imprisonment would be in Maricopa County, where prisoners are subjected to inhumane and humiliating treatment [it is claimed]. In addition, the defendants also point out that, should they be held in prison while their case was being tried, such would unavoidably place them in a much less favourable position to defend themselves. It is, however, especially important that they be able to organise and maintain a satisfactory defense against the criminal charges. [They maintain that] their case had drawn extensive attention in the County for the one-sided and incorrect handling which it had received in the media, especially through the television programme "Unsolved mysteries", which had discussed the case in detail. The attitudes of the court and the general public had been affected by the discussion which the case had already received. It was to be expected that the prosecution in the County would attempt to reinforce the wrong impression which had been presented of them and, all things being considered, such attempt could be expected to succeed if the defendants were presented to the court as extradited prisoners. The objective of the prosecution with such treatment would be [it is maintained] to present a picture of the defendants as hardened criminals. This would be intended to convince the judge and the public, which would be represented on the jury, or at least have an effect upon their assumptions that the events were in fact as they had been described in the above-mentioned television programme. Such would substantially reduce their chances of going free on reasonable bail while the case was being tried. Their freedom and the ability to present a satisfactory defense gave them the hope that they would not be sentenced to imprisonment in the County, where the conditions of prisoners were as poor as was evident from the reports of human rights organisations and other documentary proof.
In the statement of the prosecution to the Supreme Court it is stated that there is nothing to indicate a danger that the defendants will not receive fair treatment before an independent and impartial court in North America. It has not been demonstrated that the case has affected the attitudes of the police and prosecution, despite it having been discussed in the mass media. This is even less true in the case of the courts. Nor does it make any difference whether the defendants are in custody while their case is being tried or not. In addition, [it is claimed] that bias or a less-than-objective attitude on the part of the police chief of Maricopa County towards the defendants has not been demonstrated.
Article 12 of the Public Administration Act, No. 37/1993, contains the substantive provision that is called, in the title of the Article, the "Moderacy Rule". According to this rule the authorities shall only take a decision aggravating the situation when the legitimate objective aimed at cannot be achieved through other, more moderate means. Care shall be taken not to proceed more rigourously than is necessary in each case. This rule is based on the principle that a public authority should not only take into account the end to which its efforts are directed, but also take into consideration the interests and the rights of those at which the deeds of and exercise of power by the authorities are aimed. According to the second paragraph of Article 1 of this same Act, the Moderacy Rule shall apply when the authorities take a decision on the rights or obligations of individuals. Where the authorities have a choice of means to achieve the ends sought in taking a decision, they should choose the remedy which is mildest yet can be effective. The more aggravating is the restrictive effect resulting from the decision of the authorities, the stricter the demands must be that they prove it to be necessary. This applies, in particular, to those interests of individuals which concern their freedom and inviolability as guaranteed by the constitution and international human rights conventions to which Iceland is a party. The Moderacy Rule clearly applies to actions by Icelandic authorities aimed at compliance with requests for extradition from other states.
The Ministry of Justice responded to the request for extradition submitted by sending it to the Director of Public Prosecutions "for appropriate treatment". This response, together with the claims of the prosecution, can only be interpreted as implying that the authorities are of the opinion that the conditions set by law for extradition are satisfied, and that their way is clear to comply with the request, whether or not they set any conditions for eventual extradition at such point in time. Right from the beginning of this case the defendants have declared their willingness to return to their own country and take responsibility for their actions. They have, furthermore, described their unavailing attempts to reach an agreement with the US authorities on being treated reasonably and humanely upon their return. Their position to the request for extradition indicated clearly to Icelandic authorities that it would be possible to achieve the objective of having the defendants stand trial in the US without subjecting them to the discomfort of arrest, as previously described, which would unavoidably have resulted in the event of their unconditional extradition. The Icelandic authorities should have, under such conditions and in view of the evident interests of the defendants in this case, attempted to accomodate this legitimate position. This they could have done, either by exerting their influence to obtain an agreement between the defendants and the US authorities or by promising to set conditions for the extradition which would ensure that the defendants would have the opportunity of defending themselves in court without prior arrest. By choosing either of these avenues it would have been possible to achieve the principal objective of the extradition, i.e. that the defendants would receive fair treatment when tried for the charges made against them, before an independent and impartial court, in accordance with the demands of Article 70 of the Constitution of the Republic of Iceland, No. 33/1944, cf. the Act on the Constitution, No 97/1995, and Articles 5 and 6 of the European Convention on Human Rights, cf. Act No. 62/1994. In not taking any action, despite the clear request to this effect from the defendants, the Icelandic authorities failed to fulfil their obligation to follow the course of moderacy in exercising the authority invested in them. Such being the case, the conditions set by law for complying with the request for extradition of the defendants to the US, are not satisfied.
In accordance with all of the above, the ruling under appeal is hereby affirmed. With reference to the second paragraph of Article 16 of Act No. 13/1984, remuneration to the counsel for the defendants shall be made for defense before the Supreme Court from the National Treasury, as prescribed in the Verdict.
The ruling under appeal is hereby affirmed.
Remuneration to the counsel appointed for the defendants, Ragnar T�mas �rnason, District Court Attorney, for defense before the Supreme Court, in the amount of ISK 250,000, shall be paid from the National Treasury.
in Supreme Court Case No 302/1997:
The Prosecution
vs.
Connie Jean Hanes and
Donald Hanes
Act No. 13/1984, on Extradition of Criminals and Other Assistance in Criminal Cases, which applies to this case, should be interpreted and implemented in the light of the constitutional principle that no one be deprived of his liberty without a court ruling on the legitimacy of the such action, together with the principle of justice in this country that the courts should not be called upon for their opinion on rules of law or the rights and obligations of individuals except to resolve actual disputes over interests which are actually at stake. The provisions of the first paragraph of Article 14 of the Act, that a ruling may be sought in the Reykjav�k District Court as to whether the conditions for extradition are satisfied, should thus not be construed to mean that this applies to a ruling on the existence of authorisation by law for the extradition and its general conditions, but should rather be regarded as implying that this Court, and other Courts as the case may be, has jurisdiction on extradition at all stages, which covers all conditions which may come under question.
It must as a rule be regarded as a basic condition for the forced extradition of an individual on the occasion of a request for extradition from a foreign state, that such is actually necessary. In this instance the defendants have declared themselves prepared to travel to the US of their own volition although, admittedly, under certain conditions. The conditions mentioned are connected with objective reasons, and it is not evident that they are all insurmountable. On the contrary, it must be regarded as probable that they could be accommodated, to some extent. Nor has it been determined whether the defendants regard them as absolutely unnegotiable. The prosecution has thus not demonstrated any necessity, as the case now stands, of obtaining a forced extradition. In accordance therewith a ruling in the case cannot proclaim that the conditions set by law for complying with the request for the extradition of the defendants are satisfied. Having added these comments, I am in agreement with the verdict of the majority of the judges.
in Supreme Court Case No 302/1997:
The Prosecution
vs.
Connie Jean Hanes and
Donald Hanes
The circumstances of this case are related in the ruling of the District Court and the verdict of the majority of its judges. As is indicated there, it is primarily characterised by conflicts within the defendants� family. There is room for disagreement as to what would have been to the best advantage of the defendants� granddaughter. No evidence has been presented to indicate that she was not well cared for in their custody. The extradition authorities prevented the defendants from availing themselves of their obvious human rights to have the Supreme Court decide whether the child should be returned. Furthermore, the defendants have another child who is dependent upon them, and such must be taken into consideration. Finally, the defendants have offered, on specific conditions, to return to the US of their own volition and present themselves there before a judge. No position has been taken on the part of Icelandic extradition authorities to this last-mentioned point.
The demand of the prosecution is for a "judgement that the conditions set by law for the extradition of the defendants are satisfied, cf. Article 14 of Act No. 13/1984, on Extradition of Criminals and Other Assistance in Criminal Cases". According to the third paragraph of the Article 14 here referred to, in carrying out an investigation and other actions concerning the request for extradition, the rules applying to criminal proceedings shall be followed as appropriate. This can only be understood to mean that the handling of the case shall follow the rules of the Criminal Proceedings Act, No. 19/1991. In accordance with this, clear declarations concerning the intent of the authorities to extradite the defendants must be made, stating the conditions for such.
According to Article 45 of Act No. 19/1991, it is incumbent upon the prosecution to prove that the legal conditions for extradition are satisfied. The defendant has shown reason to believe that the treatment of extradited prisoners, under transportation to and upon arrival at the destination in Maricopa County until being brought to trial, would violate the provisions of Article 68 of the Icelandic Constitution and Article 3 of the Council of Europe Agreement for the Protection of Human Rights and Freedom, cf. also Article 7 of the international agreement on civil and political rights, which state that no one shall be subject to inhumane or humiliating treatment. As proof of this, a letter has been submitted from the Human Rights Division of the US Department of Justice, dated March 25, 1996, and evidence from respected international organisations. In this case it thus makes no difference that in general the treatment of criminal cases in the US may be expected to comply with the provisions of human rights conventions on proceedings in such cases. According to Article 7 of Act No. 13/1984, extradition may be refused on humanitarian grounds. The position of the prosecution regarding this question, as presented in the ruling of the District Court and the verdict of the present majority of judges, is unreasoned and the prosecution has presented no evidence to disprove this claim on the part of the defendants.
All of the afore-mentioned must be examined in discussing the conditions for extradition. The prosecution cannot thus be considered to have demonstrated that the conditions of Act No. 13/1984 for the extradition of the defendants are satisfied. On the basis of these arguments, I am in agreement with the conclusion of the majority of the judges.
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