Minister for Justice and Equality v Bukoshi

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 23 January 2017
• Neutral Citation: [2017] IEHC 113
• Court: High Court
• Docket Number: 2006 No. 9 EXT
• Date: 23 January 2017

[2017] IEHC 113

THE HIGH COURT

Donnelly J.

2006 No. 9 EXT

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

SAFET BUKOSHI OTHERWISE KNOWN AS ASTRIT PICARI (No. 2)

RESPONDENT

International law – Extradition – S. 24(4) of the European Arrest Warrant Act, 2003 – Onward extradition – Art. 3 of ECHR – Art. 19 of the European Union Charter on Fundamental Rights – Right of fair trial

Facts: In the present proceedings, the applicant sought an order from the Court for giving consent for the extradition of the respondent to Albania from Scotland. The requesting state, United Kingdom, had made a request for onward extradition of the respondent after receiving an extradition request from Albania. The respondent had earlier been extradited to Scotland from Ireland on foot of a European Arrest Warrant ('EAW') issued by a court in Scotland. The respondent objected to his surrender on various grounds namely, violation of right to fair trial, lack of guarantee for retrial as he had trial in absentia, lack of psychiatric facilities in Albania as the respondent was being held in a hospital in Scotland rather than the prison due to his mental illness.

Ms. Justice Donnelly granted an order for the extradition of the respondent to Albania. The Court held that under s. 24 (4) of the European Arrest Warrant Act, 2003, it was bound to consider whether his extradition was prohibited under Extraditions Acts 1965-2001. The Court observed that while making an assessment of the breach of the respondent's human rights under art. 3 of ECHR, the Court should consider all the materials before it and examine as to whether there was a real risk that the respondent would be exposed to inhuman or degrading environment. The Court found that though custodial facilities in Albania were poor, yet the Court was bound to apply the presumption that Albania would act in good faith and respect the fundamental rights of the respondent in light of specific assurance given by the Albanian government in that respect. The Court found that there was no evidence on record to suggest that placing the respondent in prison, as opposed to a designated psychiatric facility in Albania, would be incompatible with the respondent's mental health. The Court took into account the respondent's mental capacity to give consent and various international reports and membership of Albania with the Council of Europe and party to ECHR and held that there was no real risk that the respondent's right to fair trial would be violated as the Albanian government had given specific assurance for the retrial of the respondent. The Court held that the delay in prosecuting the respondent was not due to the Albanian government but owing to the fault of the respondent who had fled Albania and gone to Ireland and resided therein with a fake identity.

JUDGMENT of Ms. Justice Donnelly delivered the 23rd day of January, 2017.

1 The High Court has been requested by the United Kingdom ('the U.K.'), to give its consent to the extradition of the respondent to Albania from the United Kingdom. The consent of the High Court is necessary because the respondent is present in the U.K. (specifically Scotland) having been surrendered there on foot of a European arrest warrant ('EAW') issued by a court in Scotland. He is serving a sentence imposed on him in respect of the offence for which he was surrendered. The Court is satisfied that the person requested by the Albanian authorities is the same person in respect of whom the surrender has been ordered to the United Kingdom.

2 The respondent was surrendered to the U.K. in respect of a number of serious offences. After conviction, due to his mental health issues, the Scottish court made a compulsion order and a restriction order; this means that the respondent is subject to conditions of detention in hospital and to treatment without limit as to time. While serving that sentence in Scotland, a request for his extradition to Albania was received by the Scottish government. The request relates to a conviction in his absence on charges which, in the words of the Scottish government, 'essentially amount to murder by means of an automatic firearm.'

3 The solicitors who represented the respondent in the original EAW proceedings were notified of this request for onward extradition. They contacted the respondent, received instructions to act, and have represented him in this Court at all material times. The respondent filed a lengthy notice of objection but his points of objection to the giving of consent for onward extradition can be synopsised as follows:

(a) His right to bodily integrity would be violated if extradited to Albania because of his particular mental health issues and the prison conditions in Albania;

(b) That he had a trial in absentia and the retrial guarantees are insufficient;

(c) There would be a violation of his right to fair trial in general; and

(d) His respect for his private and family rights would be violated on surrender.

The nature of the Court's enquiry

4 At the beginning of the hearing of this application, counsel for the minister observed that this was the first case of its type, certainly the first contested case, under which the court was required to consider the provisions of s. 24(4) of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003') and that issues of interpretation arose. Section 24(4) of the said Act is the subsection which governs the giving of consent to the onward extradition to a third country from a State to which this country had surrendered a person on a European arrest warrant.

5 Section 24(4) of the Act of 2003, as amended, provides that:-

'The High Court shall give its consent to a request under subsection (3) if it is satisfied that –

(a) were the person concerned in the State, and

(b) were a request for his or her extradition received in the State from the third country concerned,

his or her extradition pursuant to such a request would not be prohibited under the Extradition Acts 1965 – 2001.'

6 Section 24(4) of the Act of 2003 is the implementing section of Art. 28, para. 4 of the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedure between Member States ('the 2002 Framework Decision'). Article 28, para. 4 states:-

'[...] a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.'

7 Counsel for the minister submitted that there are a number of possible interpretations of s. 24(4) of the Act of 2003. Counsel requested that the Court consider these interpretations and make a determination as to the appropriate basis upon which this Court should adjudicate on this request for consent to onward extradition.

8 The first possible interpretation is that the sole issue that concerns the court is whether extradition to the particular country, namely Albania, is prohibited by virtue of the Extradition Act, 1965, as amended ('the Act of 1965'). This narrow view limits the issue to whether Albania is a state with which this State has entered into any international agreement or convention for the purpose of surrender by each country to the other of persons wanted for prosecution or punishment, and that the Minister for Foreign Affairs has made an order applying Part Two of the Act of 1965 to that country.

9 Counsel for the minister has established to the Court's satisfaction that Albania is a country with which this State has entered into such an international convention by production to the Court of the latest statutory instrument which confirms that such an order was made by the Minister for Foreign Affairs. In the schedule to S.I. No. 9 of 2009, Albania is listed as a country which is a party to inter alia the Paris Convention on extradition. The Court is therefore satisfied that the Minister for Foreign Affairs has made an order applying Part Two of the Act of 1965 to Albania.

10 The Court is satisfied, however, that these proofs are not sufficient to comply with the provisions of s. 24(4) of the Act of 2003. According to that subsection, the court must be satisfied, were the person concerned in the State and were a request for his or her extradition received, that his or her extradition would not be prohibited by the Extradition Acts 1965 – 2001 (i.e. the Act of 1965 as amended). If the person were in the State and if a request were received in relation to a person, the High Court would be obliged to consider all of the matters contained in the Act of 1965 as amended before extradition could be ordered. In the view of the Court, the focus in s. 24(4) of the Act of 2003 is on the person requested and not merely on the country seeking the extradition. The Court has no hesitation in holding that the High Court must consider the application from a wider perspective than merely confirming that the third country making the request is a party to an extradition agreement with this State and that Part Two applies to that country.

11 The second interpretation of s. 24(4) of the Act of 2003, as posited by counsel for the minister, is that the reference to prohibition relates solely to those prohibitions that are expressly set out in the Act of 1965 as amended. In that regard, counsel points to prohibitions, such as the requirement for correspondence and minimum gravity, the prohibition on surrender for political offences and certain military offences and with regard to Irish citizens in certain circumstances. Counsel referred to the Act of 1965 and to the lack therein of a similar provision to s. 37 of the Act of 2003; section 37...