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US will ‘struggle’ to extradite Kim Dotcom

Monday 13 Feb 2012 1:33 p.m.

Megaupload's Kim Dotcom is currently being held in the Auckland Remand Prison (Reuters)

Megaupload's Kim Dotcom is currently being held in the Auckland Remand Prison (Reuters)

By Imogen Crispe

Internet piracy-accused Kim Dotcom could avoid extradition on a legal technicality, a previous benchmark case shows.

The US is currently looking to extradite the Megaupload founder but charges central to the case may not be sufficient to send Dotcom back.

Copyright infringement, one of Dotcom’s main charges is not covered in the US-New Zealand extradition treaty, and a 2002 case shows racketeering is not either.

In the historic case Bob Cullinane faced US charges of racketeering, visa fraud, alien smuggling and harbouring.

The case took two years and went to the Court of Appeal before Cullinane was discharged.

It concluded that racketeering and other offences were not extraditable offences under the Treaty.

The Treaty on Extradition lists many serious charges a person can be extradited on back to the US, including murder and assault.

Chapman Tripp partner Matt Sumpter told the National Business Review the US government would “struggle to extradite” on copyright and racketeering charges.

However, Philip Morgan QC, the lawyer for the accused Cullinane in the 2002 case, says racketeering and copyright infringement could be covered by the United Nations Convention against Transnational Organised Crime.

This could potentially override treaty laws between the US and New Zealand.

But Lowndes Jordon partner and copyright law expert Rick Shera told National Business Review the other charges seemed to rely on the copyright infringement charge.

He says this makes any extradition laws around the subsequent charges irrelevant.

Dotcom is currently being held in the Auckland Remand Prison after failing to get bail.

His lawyers last week appeared in the High Court at Auckland to fight restraining orders around Dotcom’s assets.

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