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Roman Polanski: no extradition
Press Release, FDJP, 12.07.2010. Corrected version.
Bern. The 76-year-old French-Polish film director Roman Polanski will not be extradited to the USA. The measures in place to restrict his freedom have been revoked. This announcement was made by Eveline Widmer-Schlumpf, head of the Federal Department of Justice and Police (FDJP), in Bern on Monday. The decision was due to deficiencies in the US extradition request that could not be satisfactorily resolved despite intensive efforts. Account was also taken of the principles governing state action that derive from international public policy.
At the end of 2005, the US authorities issued an international arrest warrant against Roman Polanski in respect of a sexual offence committed against a minor in 1977. On the basis of this warrant, Roman Polanski was arrested on 26 September 2009 on his arrival at Zurich airport and detained pending extradition. On 22 October 2009, the US authorities filed a formal extradition request. On 4 December 2009, Roman Polanski was released from custody after depositing bail of CHF 4.5 million on condition that he remained under house arrest with electronic monitoring in his chalet in Gstaad.
Refusal to disclose records
In the course of the extradition proceedings, the Federal Office of Justice (FOJ) on 5 May 2010 asked the US authorities to substantiate their extradition request by supplying the transcript of an interview conducted on 26 February 2010 with Roger Gunson, the public prosecutor in charge of the case in the 1970s. It had been alleged that the transcript would show that at a meeting held on 19 September 1977, the judge in the case at the time had expressly assured the representatives of the parties that the 42 days that Roman Polanski spent in the psychiatric unit of a Californian prison represented the entire term of imprisonment that he would have to serve. If this were the case, Roman Polanski would in fact have completed his sentence and therefore both the proceedings on which the US extradition request was founded and the request itself would have no foundation.
The request for the testimony transcripts made by the FOJ was rejected by the US Justice Department on 13 May 2010 after a US court had ruled that the testimony transcripts were to remain sealed. In the circumstances, it was not possible to exclude with the necessary certainty that Roman Polanski had not already served the sentence imposed at the time and as a result, the extradition request was seriously flawed. Given the persistent doubts as to the precise facts of the case, the request had to be rejected.
Legitimate expectation is a principle of international law
In addition to considerations based on the extradition treaty with the USA, account must also be taken of general international law and international public policy. International treaties should not simply be interpreted literally: the spirit and purpose of the law must also be considered. Treaties must be upheld according to the principle of good faith. The principle of legitimate expectation, which protects parties to litigation from arbitrary decisions, is laid down in specific provisions of both international law and Swiss domestic law, and primarily in Article 9 of the Federal Constitution (Art. 9 Protection against arbitrary conduct and principle of good faith: Everyone has the right to be treated by state authorities in good faith and in a non-arbitrary manner).
In particular, account must be taken of the fact that it was common knowledge that, since buying his house in Gstaad in 2006, Roman Polanski had made regular visits to Switzerland. Nonetheless it was years before the US authorities filed a formal extradition request. Moreover, although Polanski's name was placed on the Swiss register of wanted persons, he was never subjected to any checks by the Swiss authorities. These circumstances gave rise to a position of trust, and Roman Polanski would probably not have decided to attend the film festival in Zurich in September 2009 had he not been confident that the journey would not entail any legal disadvantages for him.
Having considered all the aspects of this case – and in particular the unsatisfactory presentation of the facts of the case in the extradition request and the principles governing state action that derive from international public policy – the Swiss authorities had no alternative but to reject the request for Roman Polanski's extradition.