Salinas de Gortari v Smithwick

• Jurisdiction: Ireland
• Judge: EGAN J,Hon. Mrs. Justice Denham
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 51
• Date: 01 January 2000
• Docket Number: [S.C. No. 294 of 1998]
• Court: Supreme Court

[1999] IESC 51

THE SUPREME COURT

Hamilton C. J.

Denham J.

Barrington J.

Keane J.

Murphy J.

No. 294/98

DE GARTORI v SMITHWICK & ORS

BETWEEN

CARLOS SALINAS de GARTORI

APPLICANT/APPELLANT

AND

HIS HONOUR JUDGE PETER SMITHWICK

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THEATTORNEY GENERAL

NOTICE PARTIES

Citations:

CRIMINAL JUSTICE ACT 1994 S51

CONSTITUTION ART 29.1

CONSTITUTION ART 38.1

CONSTITUTION ART 34.1

IRISH CURRENT LAW STATUTES ANNOTATED 1994

IRISH TIMES LTD V MURPHY 1998 1 IR 359 1998 2 ILRM 161

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476

CONSTITUTION ART 29

O LAIGHLEIS, IN RE 1960 IR 93

GILLILAND, STATE V GOV OF MOUNTJOY PRISON 1987 IR 201

RUSSELL V FANNING 1988 IR 505

DICEY & MORRIS CONFLICT OF LAWS 12ED 169

FRENCH CRIMINAL PROCEDURE CODE ART 11

FRENCH CRIMINAL PROCEDURE CODE ART 171

FRENCH CRIMINAL PROCEDURE CODE ART 173

FRENCH CRIMINAL PROCEDURE CODE ART 199

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

CRIMINAL JUSTICE ACT 1994 S51(1)

CRIMINAL JUSTICE ACT 1994 S51(2)

CRIMINAL JUSTICE ACT 1994 S51(6)

CRIMINAL JUSTICE ACT 19941994 SCHED 2 CLAUSE 3(1)

FRENCH CRIMINAL PROCEDURE CODE ART 226-13

FRENCH CRIMINAL PROCEDURE CODE ART 226-14

CONSTITUTION ART 29.3

CRIMINAL PROCEDURE ACT 1967 S16(2)

CONSTITUTION ART 38

LARKIN V NATIONAL UNION OF MINEWORKERS 1985 IR 671

BINCHY IRISH CONFLICTS OF LAW 625

LEROUX V BROWNE 1852 12 QB 801

Synopsis

Administrative Law

Administrative; judicial review; in camera application; respondent required appellant to answer questions pursuant to a request from French prosecuting authorities; such proceedings obliged to be heard in camera in France; whether judicial review proceedings in this jurisdiction should also be heard in camera; whether a hearing in the High Court on judicial review is the administration of justice; whether appellant's case comes within any of the statutory exceptions to the principle that justice shall be administered in public; whether a rule of public or private international law requires the judicial review proceedings to be heard in camera; whether the matter is governed by the lex fori; s.51, Criminal Justice Act, 1994.

Held: A hearing in the High Court on judicial review is the administration of justice; appeal dismissed.

De Gortari v. Judge Smithwick - Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Murphy J. - 25/06/1999 - [1999] 4 IR 223 - [2000] 1 ILRM 463

Where judicial review proceedings are taken in respect of a decision of a judge of the District Court on matters relating to the receipt of evidence for a foreign investigation pursuant to section 51 of the Criminal Justice Act 1994, those proceedings constitute a procedural rather than a substantive matter. Although constitutional arguments were being relied upon and the issue of confidentiality was pleaded, the fundamental issue was a procedural one. Accordingly, and since no actual or potential criminal trial in Ireland was contemplated, the principle of lex fori applied and the appropriate test for the issue of whether or not the proceedings were to be heard in public or in private was the Irish test. Since the only arguments adduced to justify hearing the proceedings in camera were based on (a) the French Law relating to judicial review, and (b) the Appellant's wish to keep the matter confidential, the test was not satisfied and the appeal was dismissed.

1 Hon. Mrs. Justice Denhamdelivered the 25th day of June 1999.

2 This is an appeal by the Applicant/Appellant (hereinafter referred to as the Appellant) from the judgment of Mr. Justice Geoghegan delivered on the 31st July, 1998. There is a net issue to be determined which is a preliminary issue in the Judicial Review matter. The Appellant seeks an order that the Judicial Review proceedings which he has launched should be held in camera.

3 The Appellant has obtained leave in the High Court to seek Judicial Review of a decision of the Respondent in proceedings taking place before the Respondent pursuant to Section 51 of the Criminal Justice Act, 1994(hereinafter referred to as the 1994 Act). In February 1998 the Minister for Justice, Equality and Law Reform, on receipt of a request from French Prosecuting Authorities, nominated the Respondent to obtain evidence in relation to two matters; one concerned an investigation by French Prosecuting Authorities of corruption in the management of Aero Mexico; the other related to an investigation into the laundering of sums of money derived from drug trafficking. The matter was before the Respondent on the 4th, 5th and 6th March, 1998. The Appellant declined to answer certain questions. The Respondent required him to answer the questions objected to by the Appellant. The obtaining of evidence was adjourned while the Appellant seeks Judicial Review of the Respondent's decision. The substantial issue of the Judicial Review is not before the Court. The matter to be determined is whether the Judicial Review may proceed in camera.

The High Court

4 In the High Court the Learned Trial Judge held:

"In short, the argument put forward on behalf of the [Appellant] is that the questions being asked are in connection with a French criminal trialand that the due administration of justice in France requires in camera proceedings at this stage. It is then argued that protection of due criminal process by the Irish Constitution requires respect for the French administration of criminal justice and that in these circumstances the Irish Judicial Review proceeding should itself be heard in camera.

I have considered these arguments and have come to the conclusion that in a hypothetical case there may well be instances where an Irish Court would order the Judicial Review proceedings to be heard in camera, notwithstanding the general provision in the Constitution for justice to be administered in public if the demands of a fair trial in a foreign country required it. But there is nothing like that here. The [Appellant] is merely somebody being questioned in Ireland for the assistance of the French criminal process and he has not indicated any valid reasons why he would be prejudiced by justice being administered in public beyond the very broad desire to keep his affairs in private. In these circumstances, I can see no reason for granting the reliefs sought in this motion and I therefore refuse them. This means that the Judicial Review proceeding must be heard in public and there may be public reporting of this motion."

Appeal

5 Against that Order the Appellant has appealed. The Notice Parties appeared in the High Court and the Supreme Court as legitimiscontradictors.

Submissions

6 Mr. Frank Clarke, S.C., Counsel for the Appellant, submitted that there was an important net issue to be determined in this case. There were two matters for decision. First, the decision on the law in principle. Second, the decision applying the law to the facts of this case. He submitted that the Learned Trial Judge was correct in holding that in a hypothetical case there may be instances where an Irish Court would order that Judicial Review proceedings should be held otherwise than in public. There may be instances where aJudicial Review would be held otherwise than in public if a fair trial demands that approach. He submitted that in this case the Irish Court is acting in aid of the French procedures which are different. Under French law there is an obligation of secrecy on all parties. Failure to comply with the obligation of secrecy is an offence. The Irish Court should pay respect to the procedure of the French Court. This should be a factor of considerable weight in the balance for the Irish Court. The combination of Article 29.1 and Article 38.1 of the Constitution of Ireland means that Irish Courts can have regard to the issue of due process in another jurisdiction. This is a proposition of Irish law. If it is right then the Court has to consider the way in which publicity would affect the foreign process. Thus, the Court should look at the rules of the foreign process. In this case, the French law requires privacy in review applications of this type.

7 Mr. Sreenan, S.C., Counsel for the two Notice Parties, submitted that what is taking place in Ireland is an Irish process. Counsel for the Appellant seeks to apply French law to the Irish process. He submitted that Article 34.1 applies and this case falls under none of the authorities therein. This case was not an exceptional case pursuant to the Constitution, Article 34.1. He submitted that matters of procedure are governed by the lex fori. The issue in this case is a matter of procedure. Therefore this matter is governed by Irish law, it is a rule of procedure and the lex fori applies. He submitted that the Appellant is seeking to have this matter heard other than in public for reasons of privacy and confidentiality. He argued that those concepts are not a proper basis, are nowhere near the requirements for invoking the inherent jurisdiction of the Courts. He pointed out that there was no affidavit from the Applicant. There was no suggestion that the administration of justice in France or Ireland would be imperilled if the proceedings were held in public, nor was it suggested that the Appellant would be prejudiced if the proceedings were heard inpublic.

8 In reply, inter alia, Mr. Clarke, S.C., submitted that this matter must be looked at from the French perspective. It is not purely a procedural issue. From the French perspective what are involved are matters of confidentiality and not merely procedure. Also, he submitted, that from the Irish perspective there is a constitutional principle involved, thus in Ireland also it is not just a matter of procedure. He submitted that what is at issue is a matter of substantive law affecting the rights of parties. Therefore, he submitted, it is not caught by the lex fori ru...