The dramatic news that seven Fédération Internationale de Football Association (FIFA) officials – reportedly including a vice-president – have been arrested in Zurich pending their extradition to the United States on corruption charges including wire fraud, racketeering and money laundering, should give pause to all Australians who spend time doing business in foreign jurisdictions.
It is important that individuals and entities are fully alert to the consequences of engaging in risky conduct or transactions, whether in Australia or abroad.
Extradition from Switzerland to the United States
The Extradition Treaty between the Government of the United States of America and the Government of the Swiss Confederation (the Treaty), governing the extradition of persons located within Switzerland's jurisdiction to the United States, entered into force on 10 September 1997.
Under the Treaty, Switzerland has an obligation to extradite to the US persons who have been charged with an 'extraditable offence' (that is, an offence punishable under the laws of both Switzerland and the US by a period of imprisonment exceeding one year). All of the charges the FIFA officials are reportedly facing involve extraditable offences.
Extradition must or may be refused by Switzerland in certain circumstances – including where the acts for which extradition is sought violate provisions of law relating exclusively to currency policy, trade policy, economic policy or tax minimisation – but none of these circumstances currently appears relevant to the case of the FIFA officials.
It appears that the FIFA officials have been provisionally arrested, meaning that it is expected that a request for extradition (which must be accompanied by an arrest warrant) will follow.
The process can take a year or longer, depending on whether the officials elect to use all available avenues of appeal to prevent their extradition. These avenues include an appeal to the Federal Criminal Court or, in 'particularly important' cases, to the Federal Supreme Court.
The Treaty does, however, also provide for a simplified extradition process. Under this process, Switzerland may grant extradition of a FIFA official without formal extradition proceedings if the official irrevocably agrees in writing to extradition after being advised by a 'competent judicial authority' (for example, the Swiss prosecutor) of the right to formal extradition proceedings and the protection afforded by them. Currently, one of the seven FIFA officials arrested is being reported to have chosen not to oppose his extradition.
The Australian position
The extradition by Australia of persons within its jurisdiction is governed by the Extradition Act 1988 (Cth) (the Act). Under this Act Australia can only accept extradition requests from countries that have been declared 'extradition countries', being countries with whom Australia has bilateral extradition treaties.
Australians doing business overseas should be aware that, currently, these countries include India, Vietnam, Malaysia, Cambodia and the US.
In Australia the extradition process commences with the receipt by the Attorney-General's Department of an extradition request. The process comprises a number of steps and along the way a person whose extradition is sought is afforded various opportunities for review –for example, where a magistrate or judge determines that a person is eligible for surrender that decision is reviewable by the Federal Court within 15 days of the determination (provision is also made for review of the Federal Court's decision by the Full Federal Court).
Like Switzerland, Australia's extradition treaties with other countries also require the dual criminality requirement to be satisfied through the definition of the term 'extraditable offences' as those punishable by the laws of both states with a term of at least 12 months' imprisonment.
Australia may refuse extradition in a variety of circumstances, including where it has substantial grounds to believe that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person's race, sex, religion, nationality or political opinion (or that that person's position may be prejudiced for any of those reasons), or where it believes that the surrender is likely to have exceptionally serious consequences for the person whose extradition is sought, including because of the person's age or state of health.
As with the Swiss-American process, a party to an extradition treaty with Australia may also request the provisional arrest of a person pending a request for extradition.
The world will be keenly watching developments in the case of the FIFA officials.
Closer to home, the FIFA case is a stark reminder that extradition is a real prospect for Australians who spend time overseas – including for business purposes. The Department of Foreign Affairs and Trade reports that in 2013-2014, Australia surrendered, through the extradition process, one person facing bribery and corruption offences and three facing fraud or theft charges. Australian individuals and entities must at all times be alive to the significant risks of engaging in unlawful conduct, both at home and in foreign jurisdictions.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.