Minister for Justice and Equality v Ahmed
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 08 February 2016 |
| Neutral Citation | [2016] IEHC 83 |
| Court | High Court |
| Docket Number | Record No. 2014/94 EXT |
| Date | 08 February 2016 |
[2016] IEHC 83
THE HIGH COURT
Donnelly J.
Record No. 2014/94 EXT
Extradition – The European Arrest Warrant Act, 2003 – Validity of European Arrest Warrant – Public interest – 2002 – Framework Decision
Facts: The applicant sought an order for the surrender of the respondent to the requesting state pursuant to the issuance of the European Arrest Warrant (EAW) for serving a sentence of 20 years of imprisonment imposed in relation to the offence listed in the European Arrest Warrant. The respondent objected to her surrender on the ground that it was prohibited by s. 37 of the European Arrest Warrant Act, 2003 and that the said EAW was invalid as the requesting state had availed the benefit of art. 32 of the 2002 Framework Decision whereby offences committed prior to 7 August 2012 were excluded from the EAW procedure. The respondent also asserted that her extradition was prohibited under s. 45 of the said Act of 2003 in the absence of an undertaking for retrial by the requesting state.
Ms. Justice Donnelly refused the surrender of the respondent as the issuing judicial authority failed to comply with the provisions of s. 45 of the Act of 2003. The Court held that the EAW form issued by the issuing judicial authority and set out in Annex to the 2002 Framework Decision was defective as the respondent was neither aware of the scheduled trial nor gave a mandate to a lawyer to defend her as required under point 3.2 (d) as set out under 2009 Framework Decision. The Court held that there was no assurance by the judicial issuing authority under recital 6 of the 2009 Framework Decision that the said requirement under point 3.2 (d) had been met either in form or in substance. The Court however, refused the surrender of the respondent on the other two raised contentions. The Court held that since the respondent was charged with drug trafficking and played a lead role, her surrender would be desired in great public interest notwithstanding the claim of her breach of fair trial under art.6 and 8 of European Convention on Human Rights (ECHR). The Court observed that art. 32 of the 2002 Framework permitted member states to make a statement indicating that as executing member state, it would continue to deal with requests relating to the acts committed prior to a date which was specified by the member state. The Court held that the said provision merely entitled the member state to opt for continuance of former extradition procedure and thus it was not coercive in nature.
The respondent's surrender is sought by Italy on foot of a European arrest warrant ('EAW') issued by the office of the State Prosecutor at the Court of Naples and dated 17th October, 2012. The EAW sets out that the respondent was convicted in absentia by the Court of Naples on 18th March, 2005 which was affirmed on appeal on 6th February, 2009. She is now wanted to serve a 20 year sentence of imprisonment imposed in relation to the offence listed in the EAW, namely a drugs offence of taking part in an association with the purpose of committing an indefinite number of crimes involving the importation, sale, distribution, trade and illicit possession of remarkable quantities of a narcotic substance of the cocaine type in several Italian provinces between September, 1999 and June, 2000. The EAW was endorsed on 16th May, 2014 and the respondent was duly arrested on foot thereof on 24th October, 2014. She was in custody for a lengthy period of time before being admitted to bail.
Endorsement
I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.
Identity
At the time of the arrest hearing, the respondent maintained that she was not the person named in the EAW. In her affidavit grounding her points of objection, the respondent appears to accept that she is the person named in the EAW. I am therefore satisfied, based on the information in the EAW, the additional documentation, the evidence given, including the affidavit of James Kirwan, member of An Garda Síochána that, the respondent is the person for whom the EAW has issued.
Jurisdiction
I am satisfied that the Minister for Foreign Affairs has, by the European Arrest Warrant Act 2003 (Designated Member States)(No.2) Order 2005 ( S.I. No. 240 of 2005), designated Italy as a member state that has, under its national law, given effect to the Framework Decision of 13th June, 2002 on the European Arrest Warrant and surrender procedures between Member States ('2002 Framework Decision').
Section 38
The offence is described at point (e) of the EAW as '[the respondent] with the role of promoter, leader and organizer, took part in an association with the purpose of committing an indefinite number of crimes involving the importation, sale, distribution, trade and illicit possession of remarkable quantities of a narcotic substance of the cocaine type. Offences committed in Giugliano, Campania, Castelvolturno and elsewhere between September 1999 and June 2000'. The issuing judicial authority has invoked Article 2, para. 2 of the 2002 Framework Decision by ticking the boxes entitled 'participation in a criminal organisation' and 'illicit trafficking in narcotic drugs and psychotropic substances'. This Court is satisfied therefore that there is no manifest error in the ticking of the boxes. The offence is also one of the required minimum gravity. Therefore, the surrender of the respondent is not prohibited by the provisions of s. 38 of the Act of 2003.
I am satisfied that I am not required to refuse the respondent's surrender under sections 21A, 22, 23 or 24 of the Act of 2003, as amended.
Apart from further considerations of s. 37 and s. 45, I am satisfied that the respondent's surrender is not prohibited by any other section contained in Part 3 of the Act of 2003, as amended.
The following points are made in objection to the respondent's surrender, in that:
- The absence of an undertaking to provide the respondent with a retrial is contrary to s. 45 of the Act of 2003, as amended.
- The surrender of the respondent is prohibited by s. 37 of the Act of 2003 as it would be a breach of her rights to a fair trial under Article 6 of the European Convention on Human Rights ('ECHR') and a breach of her personal and family rights under Article 8 of the ECHR.
- The EAW is invalid as Italy availed of Article 32 of the 2002 Framework Decision, whereby alleged offences committed prior to 7th August, 2002 are excluded from the EAW procedure and the previous extradition arrangements remain in place.
In her claim of a breach of s. 45 of the Act of 2003, the respondent relied on the EAW and addendum, the respondent's affidavit, and the further and additional information dated 5th and 29th June, 2015. The respondent contends that she was arrested in Italy and was represented by a lawyer at the time of that arrest. She was released without charge then left Italy and heard nothing further about any trial. She says that she is unaware of any lawyer acting on her behalf in such a trial and so could not have given him/her a mandate to represent her.
At the outset, counsel for the respondent referred to the nature of criminal proceedings in Italy and highlighted the distinction drawn between the first stage of preliminary examination, which took place in the respondent's case in March 2000, and the respondent leaving Italy shortly afterwards in April 2000 with a coercive measure issuing on 15th June, 2001, a decree of absence to avoid arrest made on 26th July, 2001 and the criminal proceedings being served on her lawyers in or around January 2002.
As a preliminary issue in light of the Minister for Justice and Equality v. Palonka [2015] IECA 69 case, it was submitted by counsel on behalf of the respondent that where a person was not present for his/her trial, one of the boxes under s. 45, namely points 3.1b, 3.2, 3. 3 or 3.4 must be applied. Peart J. in Palonka stated that the appropriate box must be ticked to indicate which scenario applies in the particular case but no box has been ticked in the present case and so, on one reading of the EAW, it fails the s. 45 test.
However, in this case, the respondent also claimed that the substance of the matters at the points in point (d) do not apply to her but the minister contended that s. 45 of the Act of 2003 has been complied with and the matters come down to an assessment of the state of mind of the respondent.
In the present case, the form of the EAW is that which is annexed to the 2002 Framework Decision and therefore does not contain the new format required by the 2009 Framework Decision and by s. 45 of the Act of 2003. A further point (d) was added as an addendum to this EAW. The body of the EAW records at point (d) under the heading 'Decision rendered in absentia and:' an X against the following:
'The person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia but has the following legal guarantees after surrender to the Judicial Authorities (such guarantees can be given in advance):
Specify the legal guarantees: TRIAL IN ABSENTIA. THE SENTENCED PERSON WAS PRIVATELY REPRESENTED BY A COUNSEL WHO FILED AN APPEAL, AND AN APPEAL BEFORE THE COURT OF CASSATION.'
The addendum to the EAW is headed...
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