Salinas de Gortari v Smithwick (No 2)

JurisdictionIreland
JudgeMr. Justice Geoghegan,Mrs. Justice McGuinness
Judgment Date18 January 2000
Neutral Citation[2000] IEHC 5
CourtHigh Court
Docket NumberNo 187JR/1998,[1998 No. 187 JR]
Date18 January 2000
DE GORTARI v. SMITHWICK
JUDICIAL REVIEW

BETWEEN

CARLOS SALINAS de GORTARI
APPLICANT

AND

HIS HONOUR JUDGE PETER SMITHWICK
RESPONDENT

AND

THE MINISTER FOR JUSTICE
NOTICE PARTY

[2000] IEHC 5

No 187JR/1998

THE HIGH COURT

Synopsis

Administrative Law

Administrative; judicial review; applicant seeks number of reliefs arising from a proceeding before the respondent pursuant to s.51, Criminal Justice Act, 1994; applicant is former President of the Republic of Mexico; respondent appointed by Minister for Justice to take evidence from the applicant pursuant to 1994 Act; applicant refused to answer certain questions put to him by the respondent claiming right to silence; whether applicant can lawfully be compelled to answer any question in respect of which he has indicated a desire to remain silent; whether in order to exercise the right to remain silent the applicant is obliged to satisfy the respondent on oath that he is likely to incriminate himself if he were to answer the question; whether to invoke the privilege against self-incrimination it is sufficient for the applicant to satisfy the respondent on oath that he honestly believes that his answer might expose him to a risk of criminal prosecution being instituted abroad; whether the court should adopt a purposive interpretation of the 1994 Act and carry over the terms of s.13, Petty Sessions (Ireland) Act, 1851, into the 1994 Act.

Held: Reliefs refused; the procedure under s.51 of the 1994 Act is sui generis; the procedure set out under s.13 of the 1851 Act cannot be carried over to the provisions of the 1994 Act.

De Gortari v. Smithwick - High Court: McGuinness J. - 18/01/2000 - [2000] 2 IR 553 - [2001] 1 ILRM 354

The applicant was being questioned in regard to an investigation conducted pursuant to section 51 of the Criminal Justice Act 1994. The applicant declined to answer certain questions, and sought judicial review of the respondent's decision to compel him to answer those questions. Held by McGuinness J in refusing the relief sought. In general terms the applicant should be compelled to answer questions posed in the inquiry and did not have a right to silence. The applicant would be entitled to claim the privilege against self-incrimination if it could be shown that there was a realistic prospect that answers furnished could be used against him in criminal proceedings. The applicant had as of yet not produced any such evidence.

Citations:

CRIMINAL JUSTICE ACT 1994 S51

CRIMINAL JUSTICE ACT 19941994 SCHED 2 S3(1)(a)

CONSTITUTION ART 34

CRIMINAL JUSTICE ACT 1994 S51(1)

CRIMINAL JUSTICE ACT 1994 S51(2)

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 19941994 SCHED 2 S1

PETTY SESSIONS (IRL) ACT 1851 S13

WESTINGHOUSE ELECTRIC CORP (NO 2), IN RE 1997 3 AER 717

BENNION STATUTORY INTERPRETATION 2ED PART XX

KEEGAN V DE BURCA 1973 IR 223

HEANEY V IRELAND 1996 1 IR 580

QUINLIVAN V GOV OF PORTLAOISE PRISON 1998 2 IR 113

MULLINS V HARNETT 1998 2 ILRM 304

PETTY SESSIONS (IRL) ACT 1851 S13(1)

PETTY SESSIONS (IRL) ACT 1851 S13(5)

HOWARD V COMMISSIONER OF PUBLIC WORKS 1994 1 IR 101

HALSBURYS LAWS OF ENGLAND 4ED V4

COX V HAKES 1890 15 AC 506

1

Mrs. Justice McGuinnessdelivered the 18th day of January 2000

2

In these Judicial Review proceedings the Applicant seeks a number ofdeclaratory reliefs arising from a proceeding taking place before theRespondent (The President of the District Court) pursuant to section 51of the Criminal Justice Act, 1994. Leave to issue Judicial Review proceedings was granted by McCrackenJ., on the 1st of May 1998.

BACKGROUND
3

In February 1998, the Minister for Justice received from Patrick FievetPremier Judge D'Instruction of the Tribunal De Grand Instance de, Paris,a request for assistance in respect of certain enquiries being conductedby him into charges of laundering sums of money deriving from drugtrafficking, partaking in international financial operations related todrug trafficking, complicity and illegal possession and other chargesunder theCode of Penal Procedure of the French Republic. The Minister set intrain the procedure set up under section 51 of the Criminal Justice Act, 1994and nominated the President of the District Court to take evidencepursuant to that Act from the Applicant, Mr. Carlos Salinas de Gortari.The Applicant is the former President of the Republic of Mexico and isat Present resident in this jurisdiction. Prior to the issuing of hisrequest to the Minister, M. Fievet had been in correspondence with theApplicant in regard to his giving evidence concerning the matters underinvestigation. While the Applicant had been unwilling to travel toFrance to give evidence, he had readily agreed to give evidence in thisjurisdiction. In a letter to M. Fievet dated the 4th of December 1997the Applicant had stated:

"I know that you understand that, as a former President of agreat sovereign nation, such a high mandate implies ethical and judicialimperatives compelling me to collaborate with you, under the terms ofyour invitation, in order to efficiently seek the truth".

4

In a later letter dated the 21st of December 1997 the Applicantstated:

"It is in my interest to seek and attain the truth. I remainat your entire disposition as to a date at your convenience as at theend of February 1998 ".

5

In a letter dated the 22nd of January 1998 the Applicant wrote that hegladly accepted M. Fievet's proposal to hear him testify in Ireland inthe early days of March 1998.

6

The matter came on before the Respondent on the 4th, 5th and 6th ofMarch 1998 and the Applicant appeared before him as a witness dulysworn. The proceedings were also attended by the Juge D'Instruction, M.Fievet. The Applicant was represented bySolicitor and Counsel. The Applicant answered a very considerable numberof the questions put to him by the Respondent but there were a number ofquestions put to him which he refused to answer in reliance, he claimed,on his right to silence. These questions dealt in the main with threeareas:-

7

(i) His assets, real estate and properties.

8

(ii) Whether he was aware of the existence of the bank accountsopened in France by his brother Enrique Salinas and his step-daughter,Adriana la Garde, with the Sociéé Genéral.

9

(iii) The names of his banks in Mexico and Ireland.

10

The Applicant expressly claimed that his refusal to answer thesequestions arose from a desire to maintain his privacy andconfidentiality in relation to his personal financial affairs. He didnot put forward any grounds for believing that by answering thequestions he would tend to incriminate himself, either in this State orin France. In regard to the possibility of the Applicant beingprosecuted in France, Mr. Fievet stated at the District Court hearing onthe 5th of March 1998 that a witness against whom serious andconcomitant elements of guilt should appear or exist cannot be heard asa witness by the investigating Magistrate. This would cause theproceeding to be a nullity. In that case, a witness against whom suchelements of guilt or presumed guilt would exist could not be heard bythe investigating Magistrate unless he had been charged prior to thishearing, which was in no way the case. I understand this to mean thatthe very fact that the investigating Magistrate, or Juge D'Instruction,was questioning the Applicant as a witness meant that he was not asuspect since if he was a suspect he would have to be charged beforebeing questioned. Failure to obey these rules would render the wholeproceeding a nullity.

11

Very considerable legal argument followed in the District Court as towhether the Applicant had a right to refuse to answer the questions ornot. Eventually, the learned President of the District Court ruled thatthe Applicant was obliged to answer the Questions. Upon the Applicantagain refusing to do so, the Respondent was about to proceed to hold himin contempt and to deal with that situation. However, the Applicantapplied for the proceedings to be adjourned to enable the presentJudicial Review proceedings to be brought. Counsel for the State did notoppose this application. The Respondent accordingly adjourned theproceedings and the Applicant issued his Judicial Review proceedings onthe 1st of May 1998.

12

A preliminary issue arose as to whether these Judicial Reviewproceedings should be held in camera; this issue was argued beforeGeoghegan J., who, in a reserved judgment given on the 31st of July1998, held that the Judicial Review proceedings must be held in public.The decision of Geoghegan J., was subsequently upheld by the SupremeCourt. The substantive Judicial Review proceedings came on for hearingbefore this Court on the 17th of November 1999.

13

The Applicant in these proceedings seeks a number of declaratory reliefsas follows:-

14

(1) A Declaration that the Applicant cannot lawfully be compelled toanswer any question in respect of which he has indicated a desire toremain silent within the proceedings entitled:-

" Dublin Metropolitan District In the Matter of Section 51 ofthe Criminal Justice Act, 1994and In the Matter of a Request for Legal Assistance from the PremierJuge D'Instruction Tribunal De Grand Instance de Paris, Republic ofFrance in respect of an actioninvolving The People -v- Person or Persons Unknown oncharges of laundering of sums of money deriving from drug trafficking,partaking in international financial operations related to drugtrafficking, complicity and illegal possession to Articles 81 and 151and following of the Code of Penal Procedure of the French Republic andin an action of The People -v- Person or PersonsUnknown on charges of misappropriation, misapplication andcomplicity as defined by Articles 81 and 151 and following of the Codeand Penal Procedure of the French Republic."

15

(2) A Declaration that in order to exercise the right to remainsilent in the said proceedings the Applicant is not obliged to satisfythe Respondent on oath that he is likely to...

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