Minister for Justice, Equality and Law Reform v Olsson

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date20 February 2008
Neutral Citation[2008] IEHC 37
Docket NumberRecord Number: No. 166 Ext/2006
CourtHigh Court
Date20 February 2008
Min for Justice v Ollsen

Between:

The Minister for Justice, Equality and Law Reform
Applicant

And

Thomas Ollsen
Respondent

[2008] IEHC 37

Record Number: No. 166 Ext/2006

THE HIGH COURT

CRIMINAL LAW

Extradition

European arrest warrant - Legal assistance - Attorney General's scheme - State's obligation to ensure legal assistance - Whether Attorney General's scheme adequate - Taxation of costs - Whether comparison with taxation of costs relevant - Locus standi - Whether respondent had locus standi - Offence specified in European arrest warrant - Criminal procedure rules of issuing state - Whether requirement that decision be made breached where formality of giving effect to decision remains - Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25 followed - European Arrest Warrant Act 2003 (No 45), ss 10, 13(4), 21A and 37 - Constitution of Ireland 1937, Articles 40.3.1 , 40.3.2 and 40.4.1 - Council Framework Decision 2002/584/JHA, article 11.2 - European Convention on Human Rights, articles 3, 5, 6 and 8 - Surrender ordered (2006/166Ext - Peart J - 20/02/2008) [2008] IEHC 37

Minister for Justice, Equality and Law Reform v Ollsen

Facts: The Kingdom of Sweden sought the surrender of the respondent pursuant to a European arrest warrant issued there on 5 August 2006 for the purposes of prosecuting him in respect of four offences. Five points of objection were raised by the respondent in relation to his surrender. The respondent submitted that the provision or availability of the Attorney General Scheme as a means of discharging the respondent’s legal costs was inadequate to meet the State’s obligation under Article 11.2 of the Framework Decision to provide an adequate and fair means to pay reasonable legal and other costs incurred in meeting the application for his surrender. The respondent also submitted that the warrant was issued for the purpose of continuing an investigation in Sweden, and not for the purpose of prosecuting him. The opening text of the warrant stated that the surrender of the respondent was requested “for the purpose of conducting a criminal prosecution…” The respondent also submitted that the vagueness of the warrant in relation to its purpose was a bar to surrender and that the fact that there was no possibility of bail under the law of Sweden should he be surrendered meant that his surrender was prohibited by the provisions of section 37 of the Act. Finally, the respondent submitted that if surrendered he would be held in custody and incommunicado for an indefinite period of time.

Held by Peart J. in ordering the surrender of the respondent: That the availability of the Attorney General Scheme amounted to sufficient compliance with the State’s obligation under the Framework Decision in relation to the respondent’s right to professional legal advice. The opening paragraph of the warrant made it clear that the surrender of the respondent was sought for the purpose of conducting a prosecution. The court was entitled to presume, based on the mutual trust and confidence which underpinned the arrangements for the European arrest warrant under the Framework Decision, that the issuing judicial authority in Sweden would not issue a warrant in bad faith and for reasons other than those provided for in the Framework Decision. The evidence in relation to the legal system in Sweden showed the there was a possibility of pre-trial release subject to appropriate conditions, which was similar to bail, except for the absence of any financial conditions. The submission in relation to custody for an indefinite period was exaggerated and related to a possibility only. There was no evidence to establish that minimum standards of rights’ protection would not be met in this regard.

Reporter: L.O’S

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 11.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONSTITUTION ART 40.4.1

CONSTITUTION ART 40.3.1-2

EUROPEAN ARREST WARRANT ACT 2003 S13(4)

HEALY, STATE v DONOGHUE 1976 IR 325

AIREY v IRELAND 1979 2 E.H.R.R. 305

FREEMAN, STATE v CONNELLAN 1986 IR 433 1987 ILRM 470

CARMODY v MIN FOR JUSTICE & ORS 2005 2 ILRM 1 2005/9/1839

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577

MAMATKULOV & ASKAROV v TURKEY UNREP ECHR 4.2.2005 (APPLICATION NOS 46827/99 & 46951/99)

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S3

Judgment of
Mr Justice Michael Peart
1

The surrender of the respondent is sought by the Kingdom of Sweden pursuant to a European arrest warrant issued there on the 5th August 2006. This warrant was endorsed for execution by order of the High Court on the 19th December 2006, and the respondent was duly arrested here on foot of it on the 5th July 2007. As required by s. 13 of the European Arrest Warrant Act, 2003, as amended, he was brought before the Court following his arrest and was remanded from time to time pending the hearing of this application for an order of surrender under the provisions of s. 16 of the Act.

2

His surrender is sought, according to the applicant, so that he can be prosecuted in Sweden in respect of four offences. In respect of these offences, the issuing judicial authority has in paragraph (c) of the warrant ticked two categories of offences, namely 'arson' and 'organised or armed robbery' in order to indicate that the offences for which his surrender is sought are offences within the categories of offences referred to in Article 2.2 of the Framework Decision, and therefore offences in respect of which double criminality or correspondence does not need to be verified. Even if these boxes had not been ticked to so indicate, there is no doubt that the alleged acts of the respondent which are said to give rise to these four offences would, if done in this jurisdiction, have given rise to offences here. No issue has been raised in relation to double criminality/correspondence in the Points of Opposition filed and delivered on behalf of the respondent.

3

No issue has been raised in relation to the identity of the respondent, and the Court is in any event satisfied, as it must be, that the person who was arrested and brought before the Court following arrest on the 5th July 2007 is the person in respect of whom this European arrest warrant has been issued.

4

The respondent has raised a number of objections to the making of an order for his surrender, but subject to reaching conclusions on these objections, I am satisfied that there is no reason to refuse surrender under sections 21A, 22, 23 or 24 of the Act, and I am satisfied also that his surrender is not prohibited by the provisions of Part III of the Act, or the Framework decision.

5

Under this heading of objection the respondent submits that this State is in breach of one of its obligations under the Framework Decision, namely to provide the respondent with an adequate and fair means to pay the reasonable legal and other costs incurred in meeting the application for his surrender, and in this regard it is submitted that the provision or availability of the Attorney General Scheme ("the Scheme") as a means of discharging his legal costs is inadequate to meet that obligation. Accordingly it is submitted that this Court should not entertain the application for his surrender to the requesting state, because by virtue of the provisions of s. 10 of the Act a person may be surrendered only where the provisions of the Act are met, and where the State's obligations under the Framework Decision are complied with.

6

Derek Kenneally SC submits on behalf of the respondent that it is accepted by the applicant that the respondent is not a person of sufficient means to discharge his own legal costs, and that the applicant accordingly is obliged to provide him with legal representation which is adequate and fair; and that a breach of the 'equality of arms' principle arises where the respondent can have his legal costs discharged only under the Scheme, given its nature, namely an ex gratia scheme. Indeed the applicant has not sought to dispute that the applicant's means are insufficient to enable him to provide his own representation on this application.

7

It is submitted that the Scheme takes no account of the actual costs and other fees incurred by the respondent in his opposition to the order sought, since the level of fees discharged under the Scheme is based on the fees paid to the applicant's Counsel, and that it is in the nature of an ex gratia payment provided on the basis of expediency and at the absolute discretion of the Attorney General.

8

In this regard the respondent has stated that for the purpose of resisting this application for his surrender he has been required to obtain legal opinion and an affidavit from a Swedish lawyer in relation to Swedish law, without any guarantee that the cost of so doing will be met under the Scheme, and in circumstances where, by contrast, the applicant can obtain such opinions cither at no cost at all or at a cost which will be met out of public funds. This is said to create an unfairness which breaches the principle of equality of arms, particularly in circumstances where the respondent's...

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3 cases
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