How hard will it be for Australia to extradite and prosecute Neil Prakash?

Previously presumed dead, Australian citizen Neil Prakash was arrested at the Turkish border in late November. ABC News

Australia is seeking the extradition from Turkey of Neil Prakash, an Australian citizen who is accused of being a leading propagandist and recruiter for Islamic State (IS).

Earlier presumed killed in a US airstrike, Prakash is also accused of planning terrorist attacks in Australia. The extradition process could be prolonged, as Turkey and other countries may want to interrogate Prakash or seek his extradition. But Australia has a strong case for extradition.

Who is Neil Prakash?

Turkish forces apparently captured Prakash while he was trying to cross into the country from Syria using false identity papers. An Australian government spokesman has said Prakash’s arrest was:

… the result of close collaboration between Australian and Turkish authorities.

Justice Minister Michael Keenan has confirmed that Australia has made a formal application for Prakash’s extradition. Earlier this week he said that Australia had a very good relationship with the Turkish authorities, “and they’re very aware of our keen interest”.

Prakash, known in IS as Abu Khaled al-Cambodi, is of Cambodian and Fijian-Indian background. The Australian Federal Police issued a warrant for his arrest in 2015 as a member of a terrorist organisation and for incursions into a foreign state with the intention of engaging in hostile activities.

The case for extradition

Australia has an extradition treaty with Turkey, providing for extradition of a person charged with an offence punishable by imprisonment for at least one year. The Parliamentary Joint Standing Committee on Treaties has reported that the treaty is:

… subject to the full range of human rights safeguards and provides the same range of obligations and exemptions provided by other modern extradition agreements.

The rule of double criminality applies to Australia’s application to extradite Prakash. This means the crimes with which Prakash would be charged in Australia must also be crimes under Turkish law. This does not require the crimes to be identical in both countries’ criminal law, but just perceived as punishable under both countries’ laws.

There may be competition to Australia’s extradition application. Turkey itself, European Union countries and the US may want to interrogate Prakash. The US may also want to prosecute him.

However, Australia has a strong case for extraditing Prakash to face trial in an Australian court, based on both the traditional grounds of jurisdiction of territoriality and nationality.

Prakash is allegedly associated with acts or attempted acts of terrorism that have occurred in Australia. These include Numan Haider’s attack on two police officers in Melbourne in 2014, and the planned attack on ANZAC Day commemorations in Melbourne in 2015.

Australia can also claim jurisdiction over Prakash because he is an Australian citizen. A country has the ability to prosecute and punish its citizens solely on the basis of their nationality, wherever their alleged offence takes place.

Traditionally, common-law jurisdictions like Australia have tended to exercise extra-territorial jurisdiction over their citizens only for very serious crimes. The Prakash case falls into that category.

Potential difficulties with a prosecution

Prakash could be charged in Australia under the provisions of the Commonwealth Criminal Code. These provide for extended geographical jurisdiction over terrorism offences committed by Australian citizens, and for prosecution of “foreign fighters” who fight alongside terrorist organisations in overseas conflicts.

However, there would be difficulties in prosecuting Prakash in an Australian court for crimes he allegedly committed outside Australia, including by acting as a foreign fighter. This would stem from difficulties in obtaining admissible evidence.

The former independent national security legislation monitor, Bret Walker, said in 2014 that:

… the problem of overseas evidence is peculiarly challenging for the prosecution of terrorist offenders.

He added:

… prosecutions but also investigations are presently stillborn on account of problems of foreign evidence that might otherwise have succeeded.

Legislation passed in 2014 gave judges greater discretion in deciding whether to admit foreign material in terrorism-related proceedings, while maintaining existing protections of the rights of the defendant.

Previously, the law provided that only foreign evidence obtained through a government-to-government request was admissible. It now provides for admission of evidence obtained through informal co-operation between Australian and overseas agencies, such as police.

The law also provides that any such material is not admissible if the court is satisfied it was obtained directly as a result of torture or duress.