Australian Holocaust Revisionist historian Dr. Fredrick Töben (pictured at left), wanted in Germany for alleged Holocaust denial, will remain in British custody for at least another week, it emerged on Friday October 3rd, 2008. Media stories published by the Guardian, the Guardian Politics blog, the Telegraph (HERE and HERE), the Daily Mail, and the Sydney Morning Herald.
And here's an October 3rd article from the Wimmera Mail-Times, which provides considerable background on Toben's life in Australia.
Discussion continues on Stormfront, the Vanguard News Network Forum, The Phora, and Dr. David Duke's website.
Scotland Yard's extradition unit arrested Dr Fredrick Töben, 64, when he passed through London's Heathrow airport on Wednesday enroute from Australia to Dubai, on the basis of a European Union arrest warrant issued by a district court in Mannheim, Germany. Germany accuses him of publishing material on the internet "of an anti-Semitic and/or revisionist" nature. See previous post for more details on the arrest.
At his initial hearing on October 1st, Töben refused to consent to extradition, after Tina Whybraw, representing the authorities in Mannhein, Germany, presented Germany's initial case for extradition. He appeared again at City of Westminster magistrates' court on Friday, and will also appear before the court on October 10th to discuss bail. An extradition hearing will be held on October 17th.
A small group of supporters, including the controversial British historian, David Irving, attended the Friday hearing. Outside the courtroom Irving, who was jailed in Austria for denying the Holocaust, said: "Either you have freedom of speech or you don't. Freedom of speech means the right to be wrong."
Asked if he agreed with Töben, he said: "I disapprove of some of his views but he has the right to express them. This case is about the right to say what you think and the right to be wrong". However, if bail for Töben is approved on October 10th, Irving has offered to put him up at his house in Windsor, Berks, although Irving also said he couldn't afford to help Töben with his bail.
The first Telegraph article offers a lengthy explanation of the legalities involved. The first question for the Westminster district judge to decide on October 17th is whether the offence specified in the arrest warrant amounts to an extradition offence, as defined by the Extradition Act of 2003. This situation strikes at the heart of one of the most controversial parts of the European arrest warrant, that a defendant could be extradited from one country where their alleged offence does not constitute a criminal offence to another where they can be prosecuted. Here's their legal explanation, slightly shortened:
Germany is one of the European countries that the Government has designated under the Extradition Act as a category 1 territory. For conduct to amount to an extradition offence in relation to a category 1 territory, three conditions must be satisfied.
- The alleged conduct must have occurred in the category 1 territory and not in the UK.
- It must be punishable with at least three years’ imprisonment.
- And it must fall within the so-called European framework list.
This list is taken from the EU Council Framework Decision of 2002 that sets out the scope of the European arrest warrant and the surrender procedures between member states. Among the offences listed in the framework are “racism and xenophobia”.
All that’s needed is a certificate from the German warrant-issuing authorities that this — or another crime on the framework list — is what Dr Töben’s alleged conduct amounts to. It would be far from easy for an English judge to decide whether a German law is covered by terms that are not legally defined in English law, but this does not seem to be required. What is certainly not needed is proof that Holocaust denial amounts to an offence under English law. This “double criminality” does not apply to cases covered by the European arrest warrant. There is also no longer any role for the Home Secretary to approve or refuse extradition in category 1 cases.
But Dr Töben’s alleged conduct may prove not be an extradition offence after all, even if it comes within the definition of racism and xenophobia. Yes, he is accused of publishing anti-Semitic or revisionist material on his website. That website is registered in Australia. It can be accessed in Germany, of course, and so its contents are certainly published there.
But if it is published in Germany, it is also published in Britain. And conduct is an extradition offence under section 64(2)(a) of the Act only if “the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom”. This restriction on extradition is specifically permitted by the EU framework decision. It would prevent someone who publishes material that is lawful in Britain from being extradited to Germany on the basis that the published material breaches German law.
In Dr Töben’s case, the German authorities would have to establish that he had published prohibited material in Germany that could not be read in Britain. Unless there is evidence of printed or spoken Holocaust denial by him in Germany, that may be hard to prove.
The double-criminality rule and the need for ministerial concurrence in extradition are safeguards that were designed to protect people from being sent to countries where they might not receive a fair trial. It is implicit in membership of the European Union that its member states trust each other to try all defendants fairly — even though some crimes may not be precisely replicated in each of the 27 member countries.
The bottom line - Dr. Töben does have a chance to avoid extradition and to be set at liberty, although he would probably be perma-banned from the United Kingdom. And had if not been for his prior 10-month incarceration in Germany in 1999 over a similar offense, his chances of being set free might be good. However, because this is the second time he's run afoul of the German authorities, they will probably press their case most vigorously.
Dr. Töben operates the Adelaide Institute website in Australia.