Attorney General v N.S.S

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date29 April 2015
Neutral Citation[2015] IEHC 349
CourtHigh Court
Date29 April 2015

[2015] IEHC 349

THE HIGH COURT

[No. 346 EXT/2010]
Attorney General v N.S.S
APPROVED
Mr. Justice Edwards
JUDGMENT
IN THE MATTER OF THE EXTRADITION ACTS 1965 to 2001

BETWEEN

THE ATTORNEY GENERAL
APPLICANT

AND

N.S.S
RESPONDENT

International law – Crime & Sentencing – The Extradition Act 1965 – Criminal Justice (Terrorist Offences) Act, 2005 – European Convention on Extradition 1957 – Extradition (European Union Offences) Act 2001 – Extradition – Homicide – Art. 6 of European Convention of Human Rights – Fair trial – Public Interest

Facts: In the proceedings, Russia the sought extradition of the respondent for prosecution and trial for the offence for homicide causing intentional death. The respondent objected to his surrender on the grounds that it contravened art. 6 of the European Convention on Human Rights, his fear of pre-detention, a deprivation of remedy under habeas corpus, a lack of fair trial, the treatment of inmates by Russian authorities, and an absence of prima facie evidence for his implication

Mr. Justice Edwards refused to grant an order for the extradition of the respondent and discharged him from the proceedings. The Court found that the requirements of corresponding offence of murder under s. 4 of the Criminal Justice Act 1964 and minimum gravity under s. 10 of the Extradition Act 1965 were met in the case. The Court held that the respondent's extradition would clearly violate his right of fair trial under art. 6 of the European Convention on Human Rights as evidenced by Professor Bowering's report that the Russian judiciary was saddled with dependence on the executive and corruption, and depicted a pitiful picture with disproportionately high rates of conviction, delay, lack of legal representation, inhuman prison conditions, long pre-detention periods among others. The Court was of the view that the presumption of innocence being a part of criminal justice system of a country was expressly guaranteed under art. 6 and any deviation of that would result in grave injustice to the respondent.

1

JUDGMENT of Mr. Justice Edwards delivered on the 29th day of April, 2015.

1. Introduction
2

2 1.1 In these proceedings the Russian Federation (hereinafter Russia) seeks the extradition of the respondent with a view to prosecuting him and placing him on trial in Russia for an offence contrary to article 105(1) of the Criminal Code of the Russian Federation, namely homicide involving the intentional causing of death to another person.

2. Legislation and international agreements
3

2 2.1 The application of Part II of the Extradition Act 1965 (hereinafter the Act of 1965) is governed by s.8 thereof.

4

3 2. 2 S.8 (1) (as substituted by s. 57 of the Criminal Justice (Terrorist Offences) Act, 2005) provides:

"Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Minister is satisfied that reciprocal facilities to that effect will be afforded by another country, the Minister for Foreign Affairs may, after consultation with the Minister, by order apply this Part-"

(a) in relation to that country, or

(b) in relation to a place or territory for whose external relations that country is (in whole or in part) responsible."

5

4 2.3 Both Ireland and Russia are parties to the European Convention on Extradition 1957 and on the 19 th December, 2000, the Minister for Foreign Affairs applied Part II of the Act of 1965 to Russia by means of the Extradition Act 1965 (Application of Part II) Order, 2000 ( S.I. No. 474 of 2000). Notice of the making of that Order was duly published in An Iris Oifigiúil on the 6 th February, 2001.

6

S.23 of the Act of 1965 provides that:

"…a request for the extradition of any person shall be made in waiting and shall be communicated by (a) a diplomatic agent of the requesting country, accredited to the State, or (b) any other means provided in the relevant extradition provisions."

7

5 2.4 Article 12 of the European Convention on Extradition 1957 provides:

8

2 "1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.

9

2. The request shall be supported by:

10

a a. the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;

11

b b. a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and

12

c c. a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality."

13

6 2.5 Under s. 26(1) of the Act of 1965 (as amended by s. 7 of the Extradition (Amendment) Act 1994, and by s.20 of the Extradition (European Union Conventions) Act 2001):

14

a "(a) If the Minister receives a request made in accordance with this Part for the extradition of any person, he shall, subject to the provisions of this section, certify that the request has been made.

15

(b) On production to a judge of the High Court of a certificate of the Minister under paragraph (a) stating that a request referred to in that paragraph has been made, the judge shall issue a warrant for the arrest of the person concerned unless a warrant for his arrest has been issued under section 27."

16

7 2.6 In this context s. 3 of the Act of 1965 provides that "Minister" means the Minister for Justice.

17

8 2.7 The circumstances in which an order under Part II of the Act of 1965 can be made are set out in s. 29(1) of that Act, as amended by s. 20 of the Extradition (European Union Conventions) Act 2001, which (to the extent relevant) is in the following terms:

18

2 "29-(1) Where a person is before the High Court under section 26 .... and the Court is satisfied that-

19

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

20

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

21

(c) extradition of the person claimed is not prohibited by this Part or by the relevant extradition provisions, and

22

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

23

the Court shall make an order committing that person to a prison..…there to await the order of the Minister for his extradition."

24

9 2.8 As regards the documents required to support a request for extradition, s. 25 of the Act of 1965 as amended provides:

25

2 "25-(1) A request for extradition shall be supported by the following documents-

26

(a) the original or an authenticated copy of the .... warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting country;

27

(b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;

28

(c) a copy or reproduction of the relevant enactments of the requesting country or, where this is not possible, a statement of the relevant law;

29

(d) as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality, including, where available, any fingerprint, palmprint or photograph, and

30

(e) any other document required under the relevant extradition provisions.

31

(2) For the purposes of a request for extradition from a Convention country, a document shall be deemed to be an authenticated copy if it has been certified as a true copy by the judicial authority that issued the original or by an officer of the Central Authority of the Convention country concerned duly authorised to so do."

3. The request for extradition in this case - legal formalities
32

2 3.1 The Court is satisfied on the evidence before it that the respondent's extradition has been duly requested, by means of a letter of request accompanied by supporting documents, dated the 30 th June, 2008, from the Prosecutor General's Office of the Russian Federation addressed to Mr Paul Gallagher, Attorney General of Ireland, and communicated to the Irish Department of Foreign Affairs by Diplomatic Note No 57/N by the Embassy of the Russian Federation in Dublin on the 22 nd August, 2008.

33

3 3.2 This initial request was later supplemented by additional documentation consisting of a further letter, accompanied by supporting documents, dated the 31 st March, 2009, from the Prosecutor General's Office of the Russian Federation addressed to Mr Brian Lucas, Mutual Assistance and Extradition Department, Ministry of Justice, Equality and Law Reform, Republic of Ireland, and communicated to the Irish Department of Foreign Affairs by Diplomatic Note No 22/N by the Embassy of the Russian Federation in Dublin on the 22 nd April, 2009.

34

4 3.3 The said initial request was yet further supplemented by more additional documentation consisting of a further letter, accompanied by supporting documents, dated the 10 th March, 2010, from the Prosecutor General's Office of the Russian Federation addressed to Mr Brian Lucas, Mutual Assistance and Extradition Department, Ministry of Justice, Equality and Law Reform, Republic of Ireland, and...

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