Attorney General v Damache

CourtHigh Court
JudgeMs. Justice Donnelly
Judgment Date21 May 2015
JurisdictionIreland
Neutral Citation[2015] IEHC 339

[2015] IEHC 339

THE HIGH COURT

[No. 51 EXT./2013]
[No. 670 J.R./2013]
[No. 112 J.R./2014]
AG & Ors v Damache
No Redaction Needed
AND IN JUDICIAL REVIEW
IN THE MATTER OF THE EXTRADITION ACT 1965 AS AMENDED

BETWEEN

ATTORNEY GENERAL
APPLICANT
-AND-
ALI CHARAF DAMACHE
RESPONDENT
ALI CHARAF DAMACHE
APPLICANT
-AND-
THE DIRECTOR OF PUBLIC PROSECUTIONS AND IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
-AND-
MINISTER FOR JUSTICE AND EQUALITY
NOTICE PARTY
1. Introduction
2

2 1.1. The United States of America ("the U.S.A.") seeks the extradition of Mr. Ali Charaf Damache ("Mr. Damache") to face trial for two offences. Mr. Damache, a Muslim, is accused of committing offences of international terrorism. Those two facts, amongst others, are relied upon by counsel for Mr. Damache to ground points of objection to his extradition.

3

3 1.2. Some of those grounds relate to the conditions of detention in which, it is alleged, Mr. Damache will be held if he is extradited to the U.S.A.. Others cover the sentencing procedure under U.S. Federal Sentencing Guidelines ("the Sentencing Guidelines"), the plea bargaining system and the nature and length of the sentence he is bound to receive. A particular issue, unique to extradition law, called the rule of speciality is also raised. Further issues, also unique to extradition law such as double criminality or correspondence of offences, must be established if extradition is to be permitted.

4

4 1.3. In separate proceedings, Mr. Damache seeks to review the decision of the Director of Public Prosecutions ("the DPP") not to prosecute him in this jurisdiction arising from the factual allegations underpinning the extradition request. In particular, he wants to know the reasons for the DPP's decision.

5

5 1.4. A third set of proceedings is also before the Court. In these proceedings, Mr. Damache seeks to review the failure of the DPP to reconsider or review her decision not to prosecute him. That reconsideration had been sought by Mr. Damache in light of the change of circumstances, namely that subsequent to the initial decision not to charge him, he was arrested on the extradition request by the U.S.A.. Mr. Damache has an interest in being prosecuted in this jurisdiction, because, regardless of the outcome if he were to be so prosecuted, he could not be extradited to the U.S.A..

6

6 1.5. Counsel for the Attorney General, who also represented the DPP and the Minister for Justice and Equality in the judicial review proceedings, told the Court that the State parties wished to have all three sets of proceedings dealt with by the Court. In other words, even if the case could be disposed of on by a ruling on certain grounds, it was in the interests of the administration of justice that a judgment covering all relevant issues be given. Certainly, from the point of view of the parties, it may be better to have a High Court decision on each relevant issue which can then form the basis of a complete appeal by either side should they wish to so appeal. For the sake of convenience, the Attorney General, and where appropriate the DPP and the Minister for Justice and Equality ("the Minister"), will be referred to as the State in these proceedings except where necessary to distinguish between each of those parties.

7

7 1.6. This judgment will cover the following matters in the following order:-

1

Introduction

2

The Required Proofs for Extradition

3

The Requirement of Double Criminality/Correspondence of Offences and Minimum Gravity

4

Deficiencies in the Extradition Request

5

The Role of the Irish Human Rights and Equality Commission

6

Federal Guidelines and Disproportionate Disregard for Character of the Accused

7

Specialty

8

Sentencing Provisions: Sentencing for the Relevant Conduct of Co-Conspirators and for Uncharged and Acquitted Conduct on the Basis of the Preponderance of the Evidence

9

De Facto Life Sentence and Irreducible Life Sentence

10

Coercive Plea Bargaining and Special Administrative Measures

11

Prison Conditions and Restrictions

12

The Judicial Reviews

1.7. Background
2

2 1.7.1. Mr. Damache is sought by the U.S.A. for prosecution of, in the words of the Embassy of the U.S.A., "terrorism - related offenses". He is sought in relation to two separate offences set out in a superseding indictment filed on 20 th October, 2011, in the U.S. District Court for the Eastern District of Pennsylvania.

3

3 1.7.2. The two offences on which Mr. Damache is indicted are as follows:-

"Count 1:

Conspiracy to provide material support to terrorists, in violation of Title 18, United States Code, Section 2339A, and carrying a maximum penalty of 15 years' imprisonment and

Count 2:

Attempted identity theft to facilitate an act of international terrorism as defined in Title 18, United States Code, Section 2331(1), in violation of Title 18, United States Code, Section 1028(a)(2), (b)(4), (f) and 2, carrying a maximum penalty of 30 years' imprisonment."

2

2 1.7.3. In synopsis, the facts alleged against Mr. Damache, as set out in the extradition request and supporting documentation, indicate that in early 2009, Mr. Damache met Ms. Colleen LaRose online. It is alleged that Mr. Damache told Ms. LaRose, a U.S. citizen then residing in Pennsylvania, that he was a devoted jihadist living in Ireland and that he wanted to travel to Pakistan to fight against U.S. and allied troops. Soon thereafter, Mr. Damache, Ms. LaRose, and others developed plans to form a European terror cell. The plan called for a small group to travel from Europe to an Al-Qaeda training camp in Pakistan to get training in military tactics and explosives. After the completion of training, "the Damache led group" was to return to Europe and support attacks on targets that were to include U.S. and Western European citizens. In August 2009, Ms. LaRose travelled to the Netherlands, journeying eventually to join Mr. Damache in Ireland to assist in his effort. Through electronic communications, Mr. Damache coordinated Ms. LaRose's departure from the U.S.A. and arrival, transportation and accommodation in Amsterdam. In Amsterdam, Mr. Damache provided Ms. LaRose with spiritual guidance and planned her move from Amsterdam to Ireland to join his group. Ms. LaRose later flew to Ireland and moved in with Mr. Damache and his new wife.

3

3 1.7.4. Ms. LaRose returned to the U.S.A. on 15 th October, 2009, and was arrested based on a warrant issued on 10 th October, 2009. In an interview following her arrest, it is alleged that Ms. LaRose admitted that she had travelled overseas with the intent to join Mr. Damache and commit violent attacks on U.S. and European citizens, that she was involved in a plot to kill Swedish artist, Mr. Lars Vilks ("Mr. Vilks"), a cartoonist who had drawn depictions of Muhammad, that she tried to raise funds for Al-Qaeda and that she had intentionally misled investigators by providing false information on two occasions in order to further the conspiracy.

2. The Required Formal Proofs for Extradition
2

2 2.1. Section 29(1) of the Extradition Act 1965, as amended, ("the Act of 1965") sets out the duties of the High Court where a person is before the Court under the provisions of either section 26 or section 27 of the said Act of 1965. A person can only come before the Court where a warrant for arrest has been issued by a judge of the High Court under s. 26 or under s. 27. Such a warrant may only issue under s. 26 after the Minister has certified that the request for extradition has been made. Section 27 allows for the provisional arrest of a person where no such certificate has issued provided there is urgency in the request and particular grounds are satisfied.

3

3 2.2. Under the provisions of s. 29(1), the High Court shall make an order committing a person to custody to await the order of the Minister for his or her extradition, where it is satisfied that:-

a "(a) the extradition of that person has been duly requested, and

(b) this Part applies in relation to the requesting country, and

(c) extradition of the person claimed is not prohibited by [Part II of the Act of 1965] or by the relevant extradition provisions, and

(d) the documents required to support a request for extradition under section 25 have been produced."

This Part of the judgment only deals with the formal proofs required for extradition. The potential prohibitions on extradition with which this case was concerned are individually addressed later in this judgment. In so far as Part II of the relevant extradition treaty may contain other potential prohibitions not directly addressed in this judgment, none have been established before me and the extradition of Mr. Damache is not thereby prohibited.

2.3. A person before the High Court under s. 26 of the Act of 1965?
2

2 2.3.1. The request for the extradition of Mr. Damache was sent on the 11 th January, 2013, by the Embassy of the U.S.A. in Dublin to the Minister for Foreign Affairs and Trade. It was received by the legal division of the Department of Foreign Affairs and Trade on the 14 th January, 2013, and by the Minister for Justice and Equality on the 18 th January, 2013. On the 8 th February, 2013, the Minister for Justice and Equality certified that the request for extradition had been duly made by and on behalf of the U.S.A. and received by him in accordance with Part 2 of the Act of 1965. An application was made to a Judge of the High Court (Edwards J.) in accordance with the provisions of the Act of 1965 and a warrant for the arrest of Mr. Damache was issued on the 15 th February, 2013. Mr. Damache was arrested on the 27 th February, 2013, in Waterford Courthouse on foot of this warrant.

3

3 2.3.2. In those circumstances, I am satisfied that Mr. Damache is before the High Court...

To continue reading

Request your trial
19 cases
  • Minister for Justice and Equality v Bukoshi
    • Ireland
    • High Court
    • 23 January 2017
    ...the phrase 'substantial grounds' must be read as meaning 'reasonable grounds'. As this Court has held in Attorney General v. Damache [2015] IEHC 339, the test in Rettinger applies to the prohibition on inhuman and degrading treatment under the Constitution or under the European Convention ......
  • Damache v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 31 May 2019
    ...plus the two judicial reviews came before Donnelly J., who ultimately granted the applicant relief ( Attorney General v. Damache [2015] IEHC 339 (Unreported, High Court, 21st May, 2015)). That was appealed by the State to the Court of Appeal, and in Damache v. D.P.P. [2018] IECA 130 (Unre......
  • S.F. v Director of Oberstown Childrens Detention Centre
    • Ireland
    • High Court
    • 6 November 2017
    ...Materials concerning the solitary confinement and juveniles 77 In the course of her judgment in Attorney General v. Damache [2015] IEHC 339, Donnelly J. considered how international instruments can be considered by the Irish courts and said:- '11.10.47. ... it is well-established that I ma......
  • Paget v The Governor of the Midlands Prison
    • Ireland
    • High Court
    • 9 July 2019
    ...of Oberstown Childrens” Detention Centre & Ors [2017] IEHC 829, approving dicta of Donnelly J. in Attorney General v. Damache [2015] IEHC 339, that:- ‘The decision to impose solitary confinement must be based on genuine grounds, both initially and on review. The decisions should be comp......
  • Request a trial to view additional results
1 books & journal articles
  • Judicial Review of the Decisions of the Director of Public Prosecutions
    • Ireland
    • Trinity College Law Review Nbr. XIX-2016, January 2016
    • 1 January 2016
    ...their extradition to the United 49[2014] IESC 19, at [41]. 50[1986] IR 642. 51[1993] 1 IR 39; [1992] ILRM 237 [hereinafter O’Keeffe]. 52[2015] IEHC 339. 53[2015] IEHC 798. Trinity College Law Review [Vol 19 States for trial by seeking to have the decision of the DPP not to prosecute them in......