Supreme Court rules Kim Dotcom can be extradited, subject to judicial review

Kim Dotcom may be extradited to the United States to face 12 criminal charges related to copyright, the Supreme Court ruled after a marathon legal dispute.

But in a twist, the superior court gave Dotcom and his three co-defendants the ability to challenge the decision through judicial review.

The Supreme Court ruled that the High Court and the Court of Appeal were wrong in not considering their request for judicial review of the original 2015 District Court decision that first ruled in favor of extradition.

German-born Dotcom had claimed that the District Court made a number of procedural and substantive errors, but the two higher courts dismissed his request for review as an abuse of process.

If the judicial review fails, The “final” decision on the extradition of Dotcom and his co-defendants, Mathias Ortman, Finn Batato and Bram van der Kolk, would then be made by Justice Minister Kris Faafoi.

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But Victoria University law professor Geoff McLay said even that might not be the end of the process.

This is because if Faafoi approves the extradition, his decision could be subject to further judicial review by Dotcom and be taken to court once again.

Dotcom was dramatically arrested in 2012 when armed police stormed his rented Auckland mansion by helicopter at dawn, at the behest of the FBI, claiming it was part of a “mega conspiracy.”

It soon emerged that the crimes Dotcom and his co-defendants were charged with were less sinister than the manner of the arrests suggested.

However, US prosecutors alleged that its Megaupload Internet business facilitated widespread piracy of films and publications, costing rights holders more than $ 500 million (NZ $ 757 million).

The Supreme Court case started in June last year and relied in part on arguments as to whether Dotcom’s activities were, and should be, criminal offenses in New Zealand at the time, for extradition.

He declared that the crimes would have to be punishable by at least one year in prison in both New Zealand and the United States for the group to be extradited, respecting the principle of “double criminality.”

It stated that this was the case for 12 of the 13 charges brought by US prosecutors, with the exception of one count of money laundering conspiracy for which there was no equivalent offense in New Zealand.

Speaking on the eve of the Supreme Court ruling, McLay predicted that it would take Faafoi months to reach a decision, assuming the case eventually caught up, especially since he was new to the justice portfolio.

“Faafoi, in my impression, has a methodology of ‘quietly, go slowly’. He’s definitely a harmless kind of minister. “

The Extradition Law grants the Minister wide freedom to consider “compelling or extraordinary circumstances”.

Faafoi would have to consider Dotcom’s claim that the case against him was politically motivated, McLay said.

Dotcom argued that his arrest was orchestrated by then-US Vice President Joe Biden to appease Hollywood interests in the wake of President Obama torpedoing the Sopa anti-piracy bill, which would have introduced a maximum penalty. five years in jail for streaming pirated content.

Faafoi may also need to consider Dotcom’s claim that the punishment he could face in the United States is disproportionate, he said.

Six of the crimes that Dotcom and his co-defendants are charged with carry maximum sentences of 20 years in prison in the United States.

“I’m not sure we would have jailed him for long, if anything,” McLay said.

“We don’t do the big ‘organized crime’ that the United States does.”

But McLay believed the government would be reluctant to acknowledge that problem, as doing so could affect extraditions generally.

“If we go into that, extradition will be very difficult as New Zealand has its own approach to the amount of time people spend in jail for various things and obviously other countries have very different approaches.”

McLay believed Dotcom would seek judicial review of any Faafoi decision in favor of extradition, meaning the case could go back to the Supreme Court two more times.

That could mean the saga drag on for years to come, he said.

As a former law commissioner, McLay contributed to a Law Commission report published in 2016 that warned that “conflicting procedures” in the Extradition Act could lead to unnecessary delays.

The Dotcom case spun a wrecking ball of shame through Kiwi institutions, including the police, spy agencies, and prison authorities.

In 2013, then-Prime Minister John Key was forced to apologize to Dotcom after police discovered that the Government Communications Security Office had illegally spied on Dotcom.

The following year, the private prison operator Serco apologized to Dotcom for his treatment at Mt Eden Prison after his arrest, and Things for initially providing incorrect information about your time in custody.

Dotcom alleged that he had not received any bedding, towel, toilet paper, soap, shampoo, toothpaste or toothbrush on the night of his incarceration, leaving him unable to wash after using the bathroom.

Police reached a confidential settlement with Dotcom in 2017 over his claim that they used unreasonable force during his arrest, which Dotcom described as a “publicity stunt designed to appease US authorities.”

The Human Rights Court ruled in 2018 that the Crown needed to pay Dotcom $ 90,000 for privacy violations by failing to disclose to reporting agencies they had about him.

McLay did not believe that those errors made any difference regarding extradition.

“I think, on principle, I shouldn’t,” he said.

“It should be up to an American court to put all of that in the basket and determine what the appropriate sanction should be.”