Eminent human rights barrister Geoffrey Robertson AO, QC has used a United Nations human rights procedure to challenge some of the harshest extradition bail laws in the world.
In a test case for all Australians accused by foreign states, Perth man Zhenya Tsvetnenko, an internet entrepreneur who has been imprisoned indefinitely since December 2018, has petitioned the UN Human Rights Committee, represented by Mr Robertson.
Mr Tsvetnenko is charged with wire fraud in the US. A father of 2 young children, he has demonstrated there is no danger he might flee the country.
Mr Robertson says Australia’s blanket rule of refusing bail to anyone accused by a foreign state, even if there is no danger they will flee the country, is harsher than most comparable countries.
"In England, there is no general rule against bail in extradition cases, nor in New Zealand, where Kim Dotcom has been at liberty for years, despite a US extradition request," Mr Robertson said.
"Our courts cause real cruelty to people they lock up for years and deprive of the presumption of innocence, simply because it is a foreign country which wants to put them on trial."
The case seeks the opinion of UN experts on whether the extradition law breaches Australia’s international legal obligations, specifically Article 9 of the International Covenant on Civil and Political Rights, which states there must be no general rule against granting bail.
The law is ‘entirely unnecessary and cruel,’ says Mr Robertson, and must be changed.
The UN has previously recommended Australia reform its extradition laws in the case of Griffiths v Australia.
Remedy Australia is a human rights organisation which believes Australia should comply with UN decisions on human rights complaints, both past and future. Australia is obliged to remedy violations of its human rights treaty commitments and ensure they never happen again.
Launched in 2014 on the 20th anniversary of the landmark Toonen v Australia case, Remedy Australia is a national, non-governmental, non-profit, supporter-based, voluntary organisation.
Remedy Australia monitors Australian cases adjudicated by the UN treaty committees and maintains a public online database of complaints that have been upheld. We assess Australia's progress in remedying each violation and report our findings to the UN. The results are not good. Australia has remedied only 13% of complaints upheld against it so far. Join us in making that 100%.
It's a human right you may never have heard of. But it belongs to everyone, guaranteed by international law in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) as well as elsewhere.
The right to remedy goes hand-in-hand with every other human right. If your human rights are violated, you are entitled to have something done about it.
The right to remedy means the right to obtain justice when you have been wronged; the right to have restored what is lost when human rights are violated. Where that is not possible, it is the right to reparations, compensation, redress. Remedies should be 'adequate, effective and prompt' and 'proportional to the gravity of the violations and the harm suffered'.
Since 1980, Australia has been a party to the ICCPR, which means it has ratified this important human rights treaty and is legally bound to uphold it and to ensure that "any person whose rights ... are violated shall have an effective remedy" (article 2).
Since 1994, the UN has found Australia in breach of the ICCPR and other human rights treaties a total of 47 times.
Some of these cases are well known, like Toonen v Australia (discussed in this video by the former UN High Commissioner for Human Rights). But most have disappeared without trace. Most of the victims involved (known as 'authors') have not received any remedy, even though the UN has upheld their complaint, found Australia in breach of international law and determined an appropriate remedy. Remedy Australia aims to change this.