COSTA RICAN COURT'S DENIAL OF EXTRADITION RAISES CONCERNS

UNCLAS SAN JOSE 000682

SIPDIS
SENSITIVE

DEPT FOR WHA/CEN, CA

E.O. 12958: N/A
TAGS: CASC PREL PGOV KOCI CR

SUBJECT: COSTA RICAN COURT'S DENIAL OF EXTRADITION RAISES CONCERNS
ABOUT BILATERAL RELATIONS


1. (SBU) SUMMARY: On June 26, a Costa Rican court denied a USG
extradition request for Nicole Kater, an American citizen wanted in
California on charges of parental child abduction. The court's
lengthy and convoluted decision revolved around Costa Rica's need to
ensure Kater's fundamental human rights and protect her from alleged
domestic violence. The decision concerns Post for many reasons: 1)
the decision appears to contravene the bilateral extradition treaty;
2) the decision questions both the USG's commitment to human rights
and the USG's ability to protect its citizens against human rights
violations in cases of domestic violence; and 3) the decision may be
yet another indication that Costa Rica has or will soon become a
safe-haven for child abducting parents. Post seeks Department
guidance on formulating a comprehensive response to the Government
of Costa Rica ("GOCR") to address the USG's concerns about the
court's decision and its ancillary effects. END SUMMARY.

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FACTUAL BACKGROUND
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2. (SBU) On November 22, 2000 Nicole Kater ("Kater") and John Gehl
("Gehl"),who were never married, gave birth to Tierra Zion
Gehl-Kater ("Tierra") while visiting Costa Rica. After an extended
stay, they returned to the United States and settled in California.
The relationship soured and a custody battle ensued. On August 8,
2005 the Superior Court of Humboldt County California issued an
order to show cause that required Kater to appear at a hearing on
August 29 and forbade her from removing Tierra from Humboldt County.
On August 17, in violation of the Court's order, Kater fled to
Costa Rica with Tierra. On August 22, after fleeing, Kater filed a
response to the order to show cause motion in which she alleged that
Gehl had abused both her and Tierra throughout their relationship.
Kater had never previously alleged being a victim of domestic
violence nor were there any court or police records substantiating
that any domestic violence had ever occurred.


3. (SBU) On June 16, 2006 a Federal arrest warrant was issued
against Kater on charges of international parental kidnapping. For
more than two years Kater's and Tierra's whereabouts were unknown,
and Gehl was deprived of all of his parental rights. On April 22,
2008 Kater was arrested in Costa Rica. In its extradition request,
the U.S. government ("USG") provided assurances to GOCR that if
extradited, Kater would not be subject to the death penalty or life
imprisonment and that she would only be tried in the United States
for the offense for which extradition was requested. As per the
extradition treaty, the USG was represented by the Office of the
Procuraduria General of the GOCR. In opposition to the extradition
request was Kater and her attorney and a cadre of governmental
entities, including the Attorney General, the Public Defender's
Office, the National Women's Institute (Spanish acronym INAMU),and
the Ombudsman's Office.


4. (SBU) Soon after her arrest and the start of extradition
proceedings, Kater and her "team" of supporters went into high gear
to forestall her impending return to the U.S. Kater filed an asylum
petition alleging that she feared Gehl and had been abused by him.


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A PROLONGED COURT BATTLE ENSUED
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5. (SBU) On September 18, 2008 the first court to hear the USG's
extradition request agreed with the Attorney General's position and
denied extradition on the ground that there was a lack of dual
criminality, which is required under the bilateral extradition
treaty. The decision was appealed by the Procuraduria. On November
7 an appeals court ruled that the Attorney General's Office should
be excluded from the proceedings. On December 16, the same appeals
court found that there was dual criminality, reversed the September
18 decision and granted extradition. On January 23, 2009 the
Constitutional Court annulled the appeals court's decision, ordered
that another court hear the extradition case and also ordered that
the Attorney General's Office had the right to participate in the
proceedings.


6. (SBU) On March 10 the Attorney General himself appeared before a
court in San Ramon to oppose the USG extradition. While his
principle argument was the lack of dual criminality, he also made
statements that he was concerned that if Kater were returned to the
United States that Costa Rican could not assure that her human
rights would be protected. Kater's attorney and the other entities
opposing extradition once again based their arguments on Kater's
unsubstantiated domestic violence allegations and the need to
protect her from further abuse. In a well-written decision that
granted extradition the court explained that there clearly was dual
criminality. It also stated that any allegations of domestic
violence should be addressed by the competent court in the United

States rather than the Costa Rican court hearing the extradition
request. Of course, all parties opposing extradition appealed.


7. (SBU) On June 26 at the final extradition hearing, the Court of
Appeals for the Third Judicial Circuit of San Ramon denied the USG's
extradition request and ordered that Kater be released immediately.
In its lengthy and convoluted written decision issued on July 24,
the judges explained that they based their ruling on the Ombudsman's
argument that extradition would violate Kater's human rights. The
court found that Kater and Tierra were both victims of domestic
violence perpetrated by Gehl and that granting extradition would
severely harm their fundamental rights and Costa Rica's obligation
to protect said rights. The judges further wrote that aside from
the bilateral extradition treaty, a Costa Rican court reviewing an
extradition request must also consider the Costa Rican constitution
as well as international human rights conventions, both of which
supersede the extradition treaty. The court went on to say that in
light of Costa Rica's obligation to protect a woman's and a child's
fundamental human rights, the issue of dual criminality was
irrelevant, and therefore never decided by the court.

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WHY POST IS CONCERNED
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8. (SBU) Post is concerned that Costa Rica's decision to deny the
USG's request to extradite Kater potentially nullifies the bilateral
extradition treaty (entered into between Costa Rican and the United
States on October 11, 1991). Using the rationale for denying
extradition in this case any Costa Rican courts could choose to
ignore Costa Rica's bilateral extradition treaty obligations and
deny an extradition if that court determines that an individual's
human rights protections are at issue. In the future anyone facing
extradition from Costa Rica, especially an abducting parent, could
successfully argue that his/her extradition should be denied based
on the grounds that the individual has been or could be a victim of
domestic violence if they were returned to the United States. The
Kater decision ignores the fact that a competent court in the
requesting country (in this case the United States) is the proper
venue to address legal issues not directly related to the
extradition request or underlying crime.


9. (SBU) Post is also concerned that the Kater decision
demonstrates that the GOCR questions the USG's commitment to human
rights as well as the USG's ability to protect its citizens against
domestic violence. Using the court's rationale and the arguments
made by the governmental entities opposing Kater's extradition, it
is implied that the GOCR does not believe that an individual in the
United States will receive adequate (human rights) protection in
cases where there are allegations of domestic violence. Post fears
that GOCR's stance that the USG is incapable of protecting
individuals' fundamental human rights may adversely affect future
bilateral relations.


10. (SBU) Finally, Post is concerned that the Kater decision (along
with Costa Rica's Minister of Public Security's decision last year
to grant refugee status to another abducting parent, who claimed she
was also a victim of domestic violence) could be dangerous
precedents leading to Costa Rica becoming a safe haven for child
abductors who disagree with the outcome of their custody disputes in
U.S. courts. It now appears to be sufficient for an extraditee in
an international parental child abduction case to merely claim that
s/he has been the victim of domestic violence for a Costa Rican
court to deny an extradition request and base its decision on human
rights and/or domestic violence concerns. Rather than determine
whether the extradition requirements have been met under the
bilateral extradition treaty, Costa Rican courts may now base their
decisions to grant or deny extradition on legal defenses that have
traditionally been heard by courts in the requesting country (after
extradition has been granted). As a result, an abducting parent
hiding in Costa Rica has a new tool to avoid prosecution in their
country of habitual residence.

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POST SEEKS DEPARTMENT GUIDANCE ON ENGAGING GOCR
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10. (SBU) Post believes that the USG must actively engage the GOCR
about the implications of this decision on Costa Rica's
international treaty obligations and bilateral judicial cooperation
with the United States. Post is currently preparing a Diplomatic
Note ("DipNote") to the GOCR Foreign Ministry ("MFA") regarding this
case, as it has implications for Costa Rica's international treaty
commitments, which are the responsibility of the MFA. Post will
share its DipNote draft with WHA and L prior to submission to the
MFA. Post also suggests that these issues be raised with the Costa
Rican Embassy in Washington, whenever possible. From conversations

with colleagues at the MFA and from other diplomatic missions in
Costa Rica Post senses that they too are concerned about these court
decisions and their implications for Costa Rica's international
treaty obligations. Post would appreciate any other advice/guidance
that the Department could provide with regard to this case.

BRENNAN