Minister for Justice v W.B.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 16 December 2015 |
| Neutral Citation | [2015] IEHC 805 |
| Docket Number | [2015 No. 16 EXT] |
| Court | High Court |
| Date | 16 December 2015 |
[2015] IEHC 805
[2015 No. 16 EXT]
THE HIGH COURT
International Law – Extradition – The European Arrest Warrant Act, 2003 – 2002 Framework Decision – Breach of fundamental rights – Fair procedures
Facts: The applicant sought an order for the surrender of the respondent to the requesting state pursuant to the execution of the European arrest warrant for the criminal prosecution of the applicant on a single count of rape. The respondent contended that there would be breach of his fundamental rights upon his surrender under the pre-trial detention laws of the requesting state. The applicant contended that the issuance of statement by the requesting state that investigations were still going on regarding the commission of the alleged offence, was enough to rebut the presumption under s. 21 of the European Arrest Warrant (EAW) Act, 2003.
Ms. Justice Donnelly granted an order for surrendering the respondent under s. 16 of the EAW Act, 2003. The Court opined that unless there was clear and cogent evidence showing flagrant violation of fair procedures by the state issuing the warrants, the Court must always proceed on the presumption that the trial leading to the conviction in question was just and fair. The Court held that the word ‘investigation’ might be interpreted and used in a given context in another jurisdiction and thus, the national Court should stay away from substituting its own views in extradition/surrender cases. The Court found that the statement by the issuing state to the effect that the enquires were still being made in relation to the commission of the alleged offence by the respondent would not rebut the presumption under s. 21 of the EAW Act, 2003, in the light of the preliminary decision made by the concerned District Court of the requesting state to detain the respondent in relation to the concerned charges.
The respondent is sought by Sweden for criminal prosecution on a single count of rape, pursuant to a European arrest warrant (‘EAW’) dated 16th December, 2014. The main issue in the case is whether Swedish pre-trial detention laws, to which the respondent will be subjected on surrender, place him at real risk of an egregious breach of his fundamental rights.
It is alleged that the respondent raped a woman in November 2012 in Stockholm County. The respondent is an Irish citizen who was working in Sweden at the time of the alleged offence. On affidavit, the respondent states that he left Sweden unaware that any criminal investigation was in being. In late 2013, he was contacted by the Gardaí about providing assistance to the Swedish investigation. He attended at a Garda station with his solicitor in January 2014. He provided a lengthy voluntary statement to the Gardaí at the time. A copy of that statement is exhibited in his affidavit. In brief, while he admits sexual contact with the complainant, he says the contact was at all times consensual.
I am satisfied that the Minister for Foreign Affairs has, by the European Arrest Warrant Act 2003 (Designated Member States) Order 2004 ( S.I. No. 4 of 2004), designated Sweden 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 (‘the 2002 Framework Decision’). I am satisfied that the person who appears before me is the person in respect of whom the EAW has issued. I am satisfied that the EAW has been endorsed in accordance with s. 13 of the European Arrest Warrant Act, 2003, as amended, (‘the Act of 2003’) for execution. I am satisfied that s. 45 of the Act of 2003 is inapplicable to this warrant as it is a warrant for prosecution. I am satisfied that I am not required to refuse the surrender of the respondent pursuant to ss. 22, 23 or 24 of the Act of 2003.
I am also satisfied that the offence for which the respondent is sought is a list offence within the meaning of Article 2, para. 2 of the Framework Decision and that the applicable maximum penalty meets minimum gravity requirements. Therefore, his surrender is not prohibited by s. 38 of the Act of the 2003.
The respondent raised an issue under s. 21A in his points of objection. This was not pursued at the oral hearing; nonetheless, I am required to satisfy myself that his surrender is not so prohibited. The point raised was that there were further enquiries to be conducted in the requesting state as part of the criminal investigation. In those circumstances, according to the point of objection, those ongoing enquiries amounted to evidence of the absence of an intention to put the respondent on trial. It was asserted that this was sufficient to rebut the presumption contained in s. 21A (2) of the Act of 2003.
Section 21A (2) provides ‘[w]here a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.’
The decision of the Supreme Court in Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 I.R. 384, which coincidentally concerned Sweden, confirmed that s. 21A requires cogent evidence that a decision has not been made to charge the person with and try him or her for the offence, before the court is required to refuse to surrender him or her. The reasoning in Ollson was re-iterated and applied in Minister for Justice v. Bailey [2012] 4 I.R. 1. These cases and also Attorney General v. Pocevicius [2015] IESC 59, (concerning the Extradition Act 1965), clarified that words such as investigation, used in another jurisdiction, may have to be interpreted and be given a particular meaning for the purpose of extradition/surrender cases quite distinct from that which might apply in a purely national context.
A preliminary decision has been taken by the Attunda District Court in Sweden to detain the respondent in relation to these charges. The written decision of that court has been exhibited by the respondent in the context of his argument concerning pre-trial release. That written decision was subsequently referred to, and relied upon, by the issuing judicial authority in correspondence. As the decision of the Attunda District Court is therefore before this Court, it has been considered as part of the totality of the evidence. There is nothing contained therein to rebut a presumption that a decision has been made to charge and try the respondent for these offences.
The respondent has laid no evidential basis other than to rely upon a statement that further enquiries are to be carried out in the issuing state. From the aforementioned decisions of the Supreme Court, it is established that mere reliance on the fact that investigations or enquiries are ongoing does not rebut the presumption contained in s. 21A (2). I therefore hold that his surrender is not prohibited on the grounds of s. 21A of the Act of 2003.
As stated above, the respondent's main objection to his surrender is based on the following point of objection: ‘Notwithstanding the respondent's previous good character and his full cooperation with the criminal investigation in the requesting state, there is no prospect of bail for the respondent in the event of surrender. The absence of any realistic possibility of bail amounts, in the circumstances, to such a fundamental breach of Article 40.4.1 of the Constitution and of Article 5 of the European Convention on Human Rights (‘ECHR’) that the respondent's surrender ought to be refused.’
The respondent exhibited a letter from the inspector of An Garda Síochána in his local area. The inspector stated that the respondent cooperated with their enquiries as part of a mutual assistance request from the Swedish authorities and that he furnished a detailed account and statement to that effect. The inspector also stated that as a result of the cooperation given by the respondent, the enquiries were completed as expeditiously as possible.
The respondent further stated that he had been at all times cooperative with the European arrest warrant process and that he met Detective Sergeant James Kirwan on 6th February, 2015 in order to execute the warrant. He stated that he has no wish to frustrate the criminal investigation in Sweden. He had given his cooperation to it from the earliest stage and had hidden nothing.
The respondent averred that he was advised by his Swedish lawyer Mr. Setterlund that it was extremely unlikely that he would get bail in Sweden even if he surrendered voluntarily. He was shocked to hear that a detention order had already been made in the requesting state which he stated meant he will be remanded in custody if he returns to Sweden. He said that he was of good character with no previous convictions or warrants for failing to attend court. It would make no sense for him to flee the Swedish jurisdiction if he returned there, as another EAW would issue for him. His life and his family are in Ireland so, he stated, he could not run from the investigation.
The respondent's Swedish lawyer Mr. Setterlund also swore an affidavit in the case. Mr. Setterlund stated he was present at the detention hearing at Attunda District Court on 26th November, 2014 in the case of the respondent. The respondent was not present at that hearing. He said that at the hearing, the District Court decided to detain the respondent with probable cause...
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