As of now, the hearing is set for September 21, 2015—the tenth time this hearing has been scheduled.
“We are in the process of preparing for the September 21st extradition hearing,” Ira Rothken, Dotcom’s lead global counsel, told Ars. However, Rothken explained that Dotcom’s New Zealand-based lawyers plan to try to delay even further.
“The motion for stay is being raised with the District Court on day one of the extradition hearing,” he added. “We believe the [United States Department of Justice] is acting in a manner to deny due process in New Zealand and we are hopeful the court will decide the stay matter as a threshold issue. The DOJ is clearly concerned about the weakness of their case and what these experts have to say in order to resort to such procedural game playing to prevent their testimony.”
Dotcom and the others had asked the court to push back the hearing date, arguing that seized assets held by the United States prevented them from mounting an adequate extradition offense.
He and his attorneys argued—and submitted more than 3,000 pages of supporting documentation—that in order to even be considered for extradition, there must be clear evidence that an extraditable offense was committed. There’s one major problem: copyright infringement is not an extraditable offense.
As Ars reported in January 2015, the legal battle between the United States and Dotcom started in sync with the January 2012 raid that shuttered the cloud storage site. Back then, Dotcom was charged with five criminal counts in the US: conspiracy to commit racketeering, conspiracy to commit copyright infringement, conspiracy to commit money laundering, and two counts of aiding copyright infringement.
A month later, a superseding indictment expanded the counts to 13, adding charges of racketeering, wire fraud, more counts of copyright infringement, and aiding and abetting copyright infringement. (Racketeering is a catchall criminal charge often associated with cases involving organized crime.)
Of those charges, which offenses fall under the extradition treaty between the United States and New Zealand? Currently, only two: racketeering and money laundering. Absent those charges, the US would have an even harder time trying to get Dotcom extradited.
Dotcom and his team argued before the Court of Appeal that in order to properly defend these allegations, they need to bring American experts and lawyers to rebut such charges. Not doing so, they claimed, would constitute a breach of “natural justice.”
The United States, as represented by Crown Law, the New Zealand prosecutor, argued that such questions can be addressed during the extradition hearing. On that day, there will be ample opportunity to raise challenges.
The Court of Appeal of New Zealand sided with the US and seemed anxious to finally put to rest the extradition question, which has been continually delayed for years.
The three-judge panel quoted from a previous decision by High Court Justice Sarah Katz:
The District Court hearing scheduled to commence in September will take place more than three and a half years after the applicants were first arrested. As the Court of Appeal has stressed, it is now necessary to proceed to an extradition hearing without further interlocutory intervention in the absence of “exceptional” circumstances. I am not satisfied that such exceptional circumstances exist.
Should the extradition hearing be delayed beyond September 21, it may run up against when German-born Kim Dotcom becomes eligible for New Zealand citizenship on November 29, 2015.
That date marks five years after he became a permanent resident under the country’s “Investor Plus” program. If Dotcom does become a New Zealander, it’s possible that the government would put up more of a fight to prevent extraditing one of its own.
The extradition treaty, after all, provides that avenue:
Neither of the Contracting Parties shall be bound to deliver up its own citizens under this Treaty, but the executive authority of each shall have the power to deliver them up, if, in its discretion, it be deemed proper to do so.