Eligibility for Surrender - section 19(2) Extradition Act
Section 19(2) Extradition Act
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate or Judge;
(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents--those documents have been produced to the magistrate or Judge;
(c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
- In relation to the meaning of supporting documents referred to in section 19(2) (a), I must have regard to section 19(3) Extradition Act. [Note: subsection (3)(b) relates to an offence where the person has been convicted and is not relevant to this application]:
Section 19(30 Extradition Act
(3) In paragraph (2)(a), supporting documents , in relation to an extradition offence, means:
(a) if the offence is an offence of which the person is accused--a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant; …….., and
(b) In any case
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.
- The legislative provision as to whether a document is duly authenticated is contained in section 19(7) Extradition Act:
Section 19(7) Extradition Act
(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i) in any case of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii) where the extradition country is a colony, territory or protectorate of the person administering the Government of that country or of any person administering a Department of the Government of that country.
- The Extradition Request is contained in two bound volumes, one in Spanish and one in English; both sealed over a piece of string passing through all of the documents, with the seal of the Embassy of Chile in Australia; and purported to be signed or certified by an officer of the extradition country.
- In the Respondent's outline of submissions (part 2) filed 9 June 2020, the following appeared at paragraphs 123, 124 and 125:
"Section 19(7)
123. It is unclear on the material who placed the seal on the documents.
124. Was it a Judge, a Minister?
125. If it was the embassy in Australia it raises a real question as to its power to do so."
- Since the Seal applied is that of the Embassy of Chile in Australia, it appears to satisfy the legislative requirements of section 19(7)(b)(i). There is no need to identify 'who' placed the Seal on the documents if the document purports to be authenticated by being sealed with an official or public Seal of the extradition country.
- I therefore inquired of counsel for the Respondent whether an objection was being raised as I could see no basis for it. Mr Santisi said that the submission was no longer pressed.
- I am satisfied the relevant documents are duly authenticated.
- In relation to section 19(3)(a), two warrants were issued by Chile for the arrest of the Respondent for the extradition offences. A copy of each warrant is contained in the English translated bundle at pages 82-83, and 83-84 (and in the Spanish bundle at pages 57 and 58).
- In relation to section 19(3)(c), a duly authenticated description of the extradition offences is set out on page 329 of the English translation (Spanish bundle page 61):
"OFFENCES FOR WHICH THE EXTRADITION OF ADRIANA ELCIRA RIVAS GONZALEZ IS SOUGHT
7. The extradition of Adriana Elcira Rivas Gonzalez to the Republic of Chile is sought for the following offences:
7.1. Aggravated kidnapping of the victim named Victor Manuel Diza Lopez, in her capacity as a co-perpetrator, related with an indictment issued in case roll No. 2,182.98, Conferencia 1. Folios Nos. 30-37.
7.2 Aggravated kidnapping of the victims named Fernando Alfredo Navarro Allendes, Lincoyan Yalu Berrios Cataldo, Horacio Cepeda Marinkovic, Juan Fernando Ortiz Letelier, Hector Veliz Ramirez and Reinalda del Carmen Pereira Plaza, in her capacity as co-perpetrator, related with an indictment issued in case roll No. 2,182.98, Conferencia 2 and Conferencia 2 Episodio Reinalda Pereira. Folios Nos. 38-53."
- Further, a duly authenticated copy of the offence provision is set out on pages 86-87 of the English bundle (Spanish bundle from page 60):
"ART 41. He/she who, under no right whatsoever, confined or detained another individual depriving him/her of his/her freedom, shall be punished with minor imprisonment or detention in any of its categories.
The same penalty shall be applied to he/she who may provide a place to carry out the criminal offence.
Should the confinement or detention last longer than ninety days or causes serious damage to the person or the interests of the person confined or detained, the penalty shall be rigorous imprisonment in any of its categories."
- The penalties for the criminal offences for which extradition is requested are set out on pages 329-331 of the English bundle.
- In relation to section 19(3)(c)(ii) concerning the requirement of duly authenticated statement of conduct constituting the offences, I am assisted by the Applicant's first written submissions at pages 9 and 10 setting out the relevant principles, and the reference to section 10(2) Extradition Act as well as relevant case law, which I have extracted below. [footnote numbers adjusted]
[EXTRACTED from pg.9 Applicant's submissions]
Subparagraph 19(3)(c)(ii): statement of conduct constituting the offence
40. Subsection 10(2) provides that a reference in the Extradition Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or alleged to have, been committed.
41. There are a number of established principles regarding the nature and sufficiency of the statement of conduct constituting the offence:
i) First, it must be a statement of the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed, not merely a restatement of the charge in respect of which extradition is sought. [1]
ii) Secondly, the conduct by which an offence has or is alleged to have been committed lies at a level of abstraction between a formal statement of the elements of the offence and an account of the evidence relied on to prove the relevant conduct, on the other. [2]
iii) Thirdly, whether the statement of conduct is to be accepted as a statement setting out the conduct constituting the relevant extradition offences is a "matter for practical judgment and assessment, not for over zealousness in discerning deficiencies". [3]
iv) Fourthly, it is not the case that every conceivable doubt or ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition. The test is whether the documents set out the essential elements of each offence for which surrender is sought, clearly identify the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach, and give particularity to ensure that the requested state and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made. [4]
v) Fifthly, documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective. Such documents must be read fairly and not perversely. Whether they meet the requirements of the Extradition Act is a matter for practical judgment. [5]
vi) Sixthly, the statement setting out the conduct constituting the offence may consist of a number of documents and it is permissible to have resort to all of the supporting documents to ascertain the relevant conduct. [6]
42. A duly authenticated statement of the conduct constituting the extradition offences is produced in the following sections of the English Bundle:
i) Report dated 14 August 2015 prepared by the Human Rights Programme of the Ministry of Interior and Public Safety (Interior Ministry Minute), at pages 235 to 260;
ii) Chilean Investigations Police Record No. 242 (Chilean Police Report) at pages 260 to 277;
iii) Statement given by Jorgelino Del Carmen Vergara Bravo (First Bravo Statement) at pages 277 to 290;
iv) Statement given by Jorgelino Del Carmen Vergara Bravo (Second Bravo Statement) at pages 290 to 294;
v) Statement given by Juan Hernan Morales Salgado (Salgado Statement) at pages 294 to 305; and
vi) 'Summary of the conduct alleged against Adriana Elcira Rivas Gonzalez' and 'Detailed statement of the alleged conduct constituting the offence' at pages 333 to 340.
- Having read all of the English translated bundle and the 'Summary of Conduct' set out from paragraphs 62 to 79 inclusive of the Applicant's (first) Outline of Submissions, I am satisfied that the summary accurately sets out some of the more salient points that provide an overall context. The summary is taken directly from the Extradition Request English bundle Rather than (unnecessarily) attempt to write a further summary, I will extract it below:
[EXTRACT from pg.14 Applicant's Submissions]
Summary of conduct [7]
62. The central allegation against the Respondent is that she was a member, "agent" or "operative" of a specialised group, called the "Brigada Lautaro" (Lautaro Brigade), which was part of the operative branch of the Dirección Nacional de Inteligencia (DINA). [8] The Chilean Police describe her as an officer in the Chilean Navy, [9] who was one of the "security personnel" of Lautaro Brigade. [10] 31 It appears that she was also known as "La Chani".
DINA's function and activities
63. The Interior Ministry Minute describes the formation of DINA as follows: [11] 32
The constitutional government of President Mr. Salvador Allende was overthrown on 11 September 1973 by the Armed Forces, resulted in a long-lasting condition of political, juridical and social abnormality. Within this context, and under the pretext of an internal war, a systematic, massive and institutionalised policy of violations against the most fundamental rights of human beings was established.
Amongst the meanest instruments used by that systematic policy is [sic] the creation of specialised repression groups that implemented underground detention centers which later became places where the most hideous acts of horror, torture and genocide took place.
Thus, on 14 June 1974, through Decree Law No. 521, the Dirección Nacional de Inteligencia (hereinafter DINA), was created as a military organisation, of a technical-professional character, whose purpose and mission was to produce intelligence for surveying the national security and the country's development.
In practice, they acted secretly and above the law, so their internal operation, distribution of resources, duties and organisation were unknown matters until the moment when the start of judicial enquiries, carried out within the framework of criminal proceedings brought for the offences committed by its officers, unveiled their mission and structure.
64. The 'Brigada Lautaro' (or Lautaro Brigade) was created on 1 April 1974. [12] Its initial mission was to provide personal security to the DINA National Director, Juan Manuel Guillermo Contreras Sepúlveda and his family. [13] The Division had its headquarters in premises known as 'Torre No. 5' in the center of Santiago. [14] It was commanded by Juan Herńan Morales Salgado. [15]
Once the base was set up, Salgado restructured Lautaro Brigade into guard personnel, emergency personnel, information search personnel and security personnel. All members of the division performed guard duty and were emergency personnel: Chilean Police Report, p 264.
65. The Respondent is alleged to have joined the Lautaro Brigade of DINA in 1974, "after taking a course on intelligence" in the locality of Rocas de Santo Domingo. [16]
66. In mid-1975, Lautaro Brigade moved its headquarters to premises at 8800 Simón Bolivar, which were commonly known as the "Simón Bolívar Headquarters". [17] The Respondent is alleged to have moved with Lautaro Brigade from the Torre No 5 premises to the Simón Bolívar Headquarters. [18]
67. It appears that the Simón Bolívar Headquarters was not particularly large. The Chilean Police Report indicates that the Lautaro Brigade comprised about 25 people when it first moved to that base, and that the headquarters comprised a one story house with three bedrooms, a gymnasium and two dressing rooms (which were used for questioning, and as cells, respectively) a cafeteria and a small farm and greenhouse. [19] 40 A strong inference can be made, given the size of the headquarters, that any persons based there must have been aware of the activities that took place at the headquarters.
68. The Interior Ministry Minute describes the conduct of DINA personnel at the Simón Bolívar Headquarters as follows: [20]
… the leaders of these three groups [meaning Lautaro and two other Brigades which became one "single Brigade"] carried out together the repressive acts against the Communist Party. They detained the member[s] of that Party in operations planned in advance and took them to the Simón Bolivar's Headquarters, where they were interrogated under physical and psychological coercion with the purpose of getting information about the structure and other members of the party, to kill them and make their bodies disappear.
This Brigade was known for the brutality of the crimes perpetrated by its agents. It was composed of men and women, with the depositions of this Brigade's members having established that all of them, without exception, performed operational duties. (footnote omitted, however see page 242 English bundle)
69. The Chilean Police Report states: [21]
… personnel of the Lautaro Brigade, joined the group to perform operational duties related with forced entries , detentions, interrogations and application of torture. They are:
Lautaro Brigade Operational Group
…(names listed, incl.)
-Adriana Elcira Rivas Gonzalez
…
In addition to the foregoing, it was established that the political detainees were located in the Headquarters' gym and cafeteria. They were interrogated and tortured in the dressing rooms located by the gym; they were then killed using the following modus operandi:
Application of torture during the interrogations carried out in the gym's dressing room area; there were metal bunk beds used for the application of electrical current.
Once the interrogations were over, and after having taken the decision to kill the detainees, they were given injections [with] unknown substances. …
Later, the victims were suffocated by asphyxiating them with plastic bags.
70. The Interior Ministry Minute states: [22]
It is important to emphasise the cruelty of the crimes committed therein. Prisoners were left in dungeons under very poor health conditions; they were interrogated under torture by applying electric current in different parts of the body. The premises were even used to develop advanced killing techniques, such as the preparation of Sarin gas. They had a team of medical doctors checking the health condition of prisoners to decide if they could still stand torture. Dead bodies were burnt their fingerprints and face with a welding torch; this was done inside the empty swimming pool. Then, the bodies were put inside sacks, tied-up with cables to a piece of railway beam and then thrown into the ocean by Air Force helicopters.
71. The Respondent is named in the Chilean Police Report as one of the "Lautaro Brigade Operational Group" who participated in the forced entries, detentions, interrogations and application of torture. [23]
It is alleged that the Respondent was an active agent in the Lautaro Brigade and was "commonly and concurrently" involved in the aggravated kidnapping and disappearance of persons who entered the Simón Bolívar Headquarters. The Interior Ministry Minute describes the Respondent as being "an active part of the organised and hierarchical apparatus called DINA, whose missions was repression, becoming involved in an operative group carrying out detentions, acts of torture, homicides and disappearances". [24]
73. The Respondent denies being a member of Lautaro Brigade, stating that "she performed secretarial and administrative duties". [25] 46 Nevertheless, the "depositions of all former agents who worked with [the Respondent] are key to identify her as carrying out operational duties and involved in active missions inside and outside the headquarters". [26]
74. In this respect, the Interior Ministry Minute states: [27]
By way of example, Jorgelino del Carmen Vergara Bravo refers to [the Respondent] in the following terms: "(…) Adriana was an agent at the headquarters and carried out operational actions …["] Later, in the same deposition, he adds: "I would also like to set on record that women in the headquarters were disguised as secretaries, but they were all operational agents."
The Conferencia / Episodes
75. In relation to the Conferencia 1 Episode, the Extradition Request states: [28]
(A) At around 1:00am, on May 12, 1976, agents from [DINA] search the house located in Bello Horizonte Street, District of Las Condes, Santiago, where they arrested Víctor Manuel Díaz López, who at the time was Undersecretary General of the Communist Party and took him to the Villa Grimaldi Headquarters … There he was kept in captivity by [DINA] agents and subject to constant interrogations.
(B) He was later transferred to the [Simón Bolivar Headquarters] … where he stayed during the last months he was alive. Being permanently watched and interrogated by [DINA] agents operating in such headquarters, he was in constant confinement and under a regime of deprivation of freedom …
76. Salgado describes how Díaz was brought from Villa Grimaldi to the Simón Bolívar Headquarters as follows (emphasis added):50 [29]
[Díaz] was interrogated without covering his eyes, by Barriga and Lawrence, who did not exercise any coercion. … I remember that, during this first interrogation, … also present were … Adriana Rivas. He was interrogated about the structure of the Communist Party … Diaz was then taken to the gym where he remained in detention.
…
Most officers belonging to my Brigade witnessed the events around [Díaz'] death, apart from those who participated directly in the acts. Because of the time, I think that almost all of them were present.
77. The Extradition Request describes the events relating to the Conferencia 2 Episode and Reinalda Pereira Episode, as follows: [30]
(A) Around 2:00 pm on 13 December 1976, in the junction of Grecia and Ramón Cruz streets, District of Ñuñoa, Fernando Alfredo Navarro Allendes, 49 years old, former leader of the Workers' Central Union (Central Única de Trabajadores) and member of the Communist Party's Central Committee, was arrested by agents of [DINA] who forcibly pushed him into one of the vehicle[s - sic] they were using and took him to [the Simón Bolívar Headquarters. There, he was interrogated under coercion and was later made disappear.
(B) After 8:00 am on 15 December 1976, in the area near the Lo Plaza Roundabout, in the District of Ñuñoa, Lincoyãn Yalú Berríos Cataldo, 48 years old, primary education teacher who was a member of the Communist Party and former president of the National Municipal Workers' Union, was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters. There, he was interrogated under coercion and was later made disappear.
(C) At around 8:00 am on 15 December 1976, on a street of the city of Santiago, Horacio Cepeda Marinkovic, 54 years old, a member of the Communist party and former Director of the State's Collective Transport Company (Empresa de Transportes Colectivos del Estado), was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters. There, he was interrogated under coercion and was later made disappear.
(D) At around 4:00 pm on 15 December 1976, on a street, Juan Fernando Ortiz Letelier, 54 years old, a member of the Communist Party Central Committee, was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters]. There, he was interrogated under coercion and was later made disappear.
(E) At around 9:00 am on 15 December 1976, on a street, Héctor Véliz Ramírez, 43 years old, coordinator and liaison person between the regional and central bureaus of the Communist Party, was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters]. There, he was interrogated under coercion and was later made disappear.
(F) After 4:00 pm, on 15 December 1976, in the junction between Exequiel Fernández corner of Rodrigo de Araya Streets, District of Ñuñoa, Reinalda del Carmen Pereira Plaza, 29 years old, medical technician and member of the Communist Party, who at the time was pregnant, was arrested by [DINA] agents travelling in two cars, forcibly introduced into one of the cars and taken to [the Simón Bolívar Headquarters]. There, she was interrogated under coercion and was later made disappear.
The Respondent's involvement in the alleged events, and events more generally concerning DINA and the Simón Bolívar Headquarters, described above, is summarised in the Interior Ministry Minute follows: [31]
In conclusion, [the Respondent], was a member of the organised repressive apparatus called DINA. She always performed operational duties and joined the Lautaro Brigade since its creation, which Brigade was responsible for the detention and disappearance of the leaders of the Chilean Communist Party during 1976. She was involved in the detention and interrogation of people and served as a guard at the Simón Bolívar Headquarters, the place were [sic] the victims went missing. She has been indicted for these acts.
79. Accordingly, it appears from the Extradition Request that the Respondent's criminal responsibility as a perpetrator of the offences is said to arise as a result of the Respondent, at the relevant times:
i) being a DINA agent at the Simón Bolívar Headquarters;
ii) being aware of the function of the Simón Bolívar Headquarters and work performed by DINA agents at the headquarters; and
iii) participating actively in that work.
- The description of the Simon Bolivar Headquarters is (page 243-244):
"It was a piece of land of less than 5,000 square metres with only one entrance. ……The place had open spaces where DINA officers walked freely, so everyone knew the complete premises, as well as the existence of people that were unlawfully imprisoned there. In addition, both men and woman had to take shifts to watch the detainees [cited from deposition of Sergio Andrade], so they could see the entrance and exit of vehicles transporting the detainees."
- Former DINA agent Jorgelino del Carmen Bergera Bravo provided a list of names of DINA agents who were part of the Lautaro Brigade led by Juan Salgado. This list includes the Respondent. He described performing guard duty and that he "would always see detainees coming in, who were transferred mostly by" eight agents whom he named, including the Respondent: see p.252 and 253. It is said that the deposition by Bravo was in the context of the detention and death of Victor Manuel Diaz Lopez, and that the agents named by him relate to those acting at headquarters at that time.
- Agent Rosa Hernandez provided a deposition in relation to the death of a former agent of the Lautaro Brigade, and named the Respondent and others as being agents / members of that Brigade, and that all people who worked in security matters were operational officers: see.p.254 and 255.
- I note that the Respondent makes a number of submissions about the lack of detail in the Extradition Request documents (English bundle) as to what the Respondent did or did not do. These are not committal proceedings. The documents relied upon do not purport to be the full brief or set out all available evidence. They contain sufficient information by way of an overall account of the evidence from which the relevant elements can be identified.
- I will deal with the Respondent's submissions when considering section 19(2)(c), and then deal with the Respondent's claimed extradition objections.
- I am satisfied that the documents contain a statement of conduct constituting the offences alleged against the Respondent, satisfying the requirements of section 19(3)(c)(i) Extradition Act.
- In relation to section 19(2)(b), I am satisfied that the documents produced satisfy the legislative requirements, and conform with the obligation referred to in Timar v Republic of Hungary [1999] FAC 1518 at [79]. In other words, per Timar, upon being satisfied that documents set out in section 19(3) have been produced, I am satisfied that section 19(2)(b) has been complied with.