Friday, 3rd October 2008

The case of Holocaust denier Frederick Toben is a dangerous new use of the European Arrest Warrant, writes Gerard Batten MEP

Voltaire famously said, "I disagree with what you have to say but will fight to the death to protect your right to say it." While agreeing with the sentiment, few of us would want to take the outcome to that extreme, but most reasonable people would concede that the right to free speech involves tolerating views that we don’t agree with. Unfortunately that tolerance is usually put to the test by someone with the most repugnant views. 

Just such a dilemma has just arisen in the form of Dr Frederick Toben and his arrest at Heathrow airport near London on 1 October. Dr Toben is not someone we can warm to. He is a holocaust denier. He runs a website that contends that the Nazis did not murder millions of Jews. Dr Toben is an Australian citizen who was convicted of charges under Holocaust law in Germany in 1999, and he also reportedly faces jail in Australia for breaching a Federal Court order in 2002 to remove material that it found "vilified Jewish people".  

Dr Toben was arrested at Heathrow airport under a European Arrest Warrant issued by Germany and executed by the British police. Dr Toben is an Australian citizen who was in transit between the USA and Dubai. Although he allegedly jumped bail in Germany in 1999 the EAW was not issued in relation to this matter but for allegedly "publishing anti-Semitic and/or revisionist material between 2000 and 2004" on the Internet. If extradited to Germany he faces five years in prison. 

Dr Toben’s views are totally repugnant to reasonable people. If he is guilty of inciting violence or criminal activity then let him face trial after the appropriate legal procedures. But Dr Toben’s case illustrates the dangers of the European Arrest Warrant and reveals some new and yet more dangerous developments.

The legislation that established the EAW does not state that it is applicable to non-EU nationals, even when travelling through EU member states where they are not wanted for a crime, and where their alleged crime in another state is not recognised as such. It is not clear at this stage if Dr Toben holds dual citizenship with an EU country, in which case under what law has he been arrested in Britain, and why didn’t the German authorities seek to extradite him from Australia?

Most dangerously of all, his arrest seems to establish what I have been warning about for years: that statements made on the Internet could result in the issuing of an EAW in a member state where it is a crime, and the arrest and extradition of a citizen from another state where the statements were made and where it is not a crime. If this involves information published on the Internet then it strikes at the fundamentals of free speech within nation states.

And I am not making a case for unfettered free speech. Incitement to terrorism, violence or criminal activity, or publishing child pornography, are illegal in most countries of the world and can be dealt with under existing national law. Holocaust denial might be compared to hard-core adult pornography, which is available on the internet and is not illegal. People can choose to look at it or not. It is understandable that Holocaust denial is illegal in Germany, since Germans were responsible for it in first place, and if it is denied in-country they quite reasonably have laws against it.

The European Arrest Warrant already allows for EU citizens to be extradited from one state to another without their own state having any right whatsoever to consider the evidence against them and satisfy itself that there is a proper case to answer. Member states have absolutely minimal powers to protect their own citizens against injustice, even when they know such injustice is about to visited on one of their citizens by another member state.  

We cannot protect our citizens against EU countries that are institutionally corrupt, such as Romania and Bulgaria, and others with extremely dubious legal and judicial systems. British citizens are completely at their tender mercies and this is about to be made worse by new laws coming into force later this year regarding trials in absentia. Under these laws, EU member states will be able to try, convict and sentence any other EU citizen and then require their extradition, or the collection of fines or confiscation orders, by their home state.

We are sleepwalking towards an EU police state. No one has sympathy for genuine terrorists, criminals, or people who hold repellent views such as Dr Toben, but this is not the point. The point is that protection under the law exists not just to protect the rights of criminals but to protect the rights of the law-abiding and innocent. Those protections are being systematically dismantled. If we don’t take notice when it happens to the likes of Dr Toben, it will be too late thereafter. 

The European Union Framework Decision on the European Arrest Warrant states that it does not prevent a Member State from "applying its constitutional rules relating to…freedom of the press and freedom of expression in other media". The British authorities should reject the application to extradite Dr Toben to Germany and then boot him straight back to Australia.

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