Swiss legal experts say that Switzerland has overall made a pragmatic and correct decision in not extraditing film director Roman Polanski to the United States.This content was published on July 13, 2010 - 15:43
But opinions over the Atlantic differ, particularly among the justice authorities in Los Angeles who want to pursue a 33-year-old child rape case against Polanski.
On Monday the Swiss authorities decided not to extradite the 76-year-old Oscar-winning director. Polanski was arrested in September 2009 in Zurich on his way to a film festival, before being placed under house arrest in his Gstaad chalet. He is now said to have left the country.
Swiss Justice Minister Eveline Widmer-Schlumpf said the decision had been taken after Washington’s refusal to give access to confidential documents.
“I think in the end we can say that the decision is correct and it makes sense,” Peter Cosandey, a former Zurich prosecutor with expertise in international assistance matters, told swissinfo.ch.
Cosandey said the move was based on two grounds, with the main one being “a possible defect” in the US extradition request.
Switzerland wanted the transcript of former Los Angeles prosecutor Roger Gunson, who was in charge of the case in the 1970s, which deals with the question of whether Polanski had already served his sentence.
The Franco-Polish director was in a Los Angeles jail for 42 days before being released. He then fled the country in 1978, shortly before he was scheduled to appear in court again.
“That’s an important question because if Polanski has already served his sentence then there is no basis any more for a criminal case and as a consequence for an extradition request,” Cosandey said.
The second, more auxiliary reason, concerns the concept of protection of confidence according to public international law. Here the argument is that although the Polanski case dated back more than 30 years, the arrest warrant was only issued around five years ago. The question is why, Cosandey said.
“So there was no extradition request until September 2009 even though the US authorities must have been aware of Polanski’s travels not only in Switzerland but also in other countries,” he said.
“Polanski was never caught at a border control, so the Swiss government argues that Polanski must have been confident that nobody was after him when he accepted this invitation to the Zurich film festival.”
Stefan Heimgartner, an expert in international legal assistance at Zurich University who has looked into the Polanski case, also said the Swiss extradition decision was correct.
“But I wonder whether the missing documents were really that crucial for the decision,” he told swissinfo.ch.
He also raised doubts over the US’ interest in criminally prosecuting Polanski over the past 33 years. He concluded: “Political aspects most likely played a part in the decision-making. But this is not unusual in an unusual case.”
Cosandey added that Polanski’s fame should not in theory have influenced the case but that it was hard to say overall. The director had received a lot of media attention, but Cosandey also pointed to international high profile mutual assistance cases where courts had resisted outside pressure.
In the US justice officials have said they thought the extradition request was completely supported by the facts and law.
It cannot legally appeal the Swiss decision, but the arrest warrant remains active.
“The United States believes that the rape of a 13-year-old child by an adult is a crime, and we continue to pursue justice in this case," said State Department spokesman Philip Crowley.
In Los Angeles, District Attorney Steve Cooley said authorities would seek Polanski’s extradition again, "if he's arrested in a cooperative jurisdiction".
Cosandey said a new extradition request to Switzerland could in theory be filed, but would not make sense as Polanski was no longer in the country.
“He might come back to his chalet in Gstaad and probably he is safe, but of course we do not know what the US authorities will do,” he added.
The views of Los Angeles legal experts, quoted on the agencies, ranged from seeing the Swiss move as a slap in the face to those who thought Cooley’s office had left it too late to prosecute Polanski.
Cooley has accused the Swiss of exploiting a quirk of California law to set the director free. In doing so, he also says the country has rejected the American courts’ competency.
"The Swiss could not have found a smaller hook on which to hang their hat," he said in a statement.
Isobel Leybold-Johnson and Urs Geiser, swissinfo.ch
Where is Polanski?
It remains unclear where the Franco-Polish director is now staying. All indications are that he has left his chalet in Gstaad in the Bernese Oberland.
He could be in France, where he has citizenship and where his family lives. France, like most other countries, does not extradite its citizens.
Polanski has had little trouble travelling throughout Europe—until last September—although he has stayed away from Britain.
There is still an arrest warrant out for Polanski, so he is effectively banned from the US.
Switzerland handles about 200 extradition requests, including five from the US, every year.
Of the total, about one in two cases are contested according to the justice ministry.
Only 5% of requests are rejected.
Polanski case: timeline
Mar 1977: Roman Polanski, 43, has sexual intercourse with Samantha Geimer, 13.
Apr: Polanski pleads not guilty at trial for rape then in August changes plea to guilty of statutory rape; sentenced to 3 months jail for psychiatric tests.
Jan 1978: Flees to Paris, judge then refuses to give verdict in absentia.
Aug 1994: Prosecutor refuses to dismiss case unless Polanski appears in court. Polanski had already ended the civil case by paying Geimer $225,000.
Dec 2008: Polanski lawyers call for case to be dropped over original trial's unfairness.
Sep 26, 2009: Polanski arrested on arrival at Zurich airport.
Sep 28: Appeals against extradition request; receives wide support from film world and French politicians and intellectuals.
Oct 6: Federal Justice Office refuses to release him.
Oct 23: US formally requests extradition.
Nov 25: Swiss court agrees to house arrest in Gstaad on bail of SFr4.5 million.
Dec 4: Polanski moves to Gstaad chalet, wearing electronic surveillance bracelet.
Jan 2010: Los Angeles court rejects request for trial in absentia, a decision confirmed by appeal court in April.
July 12: Swiss justice minister announces rejection of extradition request.
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