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The Attorney General v Matache [2019] IEHC 848 (04 December 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC848.html
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[2019] IEHC 848
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Page 1 ⇓
THE HIGH COURT
[2019] IEHC 848
[2015 No. 85 EXT]
BETWEEN
THE ATTORNEY GENERAL
APPLICANT
AND
DANIEL PAUL MATACHE
RESPONDENT
JUDGMENT of Mr. Justice Binchy delivered on the 4th day of December, 2019
1. By this application, the applicant seeks an order for the extradition of the respondent to
Switzerland in accordance with the provisions of the Extradition Act 1965 (the “Act of
1965”). The extradition of the respondent is sought in connection with a number of
offences allegedly committed by the respondent in Switzerland on 9th March, 2012.
Specifically it is alleged that the respondent committed the following offences: -
Attempted homicide, attempted intentional homicide, serious assault, common
assault, coercion, disruption of public traffic and serious traffic infraction.
2. The request for extradition was received by the applicant on 22nd December, 2014. The
Minister for Justice completed a certificate for the purposes of s. 26(1)(a) of the
Extradition Act 1965, on 18th May, 2015. This Court (Donnelly J.) issued a warrant for
the arrest of the respondent on 21st May, 2015. The respondent was arrested and
brought before this Court on 23rd April, 2019. Points of objection were filed on behalf of
the respondent on 5th June, 2019, and the application proceeded before this Court on
10th October, 2019.
3. Whilst eight issues are raised by the points of objection, just one was pursued at the
hearing of this application. That objection is that the surrender of the applicant is sought
for the purposes of investigation, and not for the purpose of proceedings against the
respondent as required by s. 9 of the Act of 1965, which provides: -
“Where a country in relation to which this Part applies duly requests the surrender
of a person who is being proceeded against in that country for an offence or who is
wanted by that country for the carrying out of a sentence, that person shall, subject
to and in accordance with the provisions of this Part, be surrendered to that
country.”
The respondent’s argument was grounded upon advices received by the respondent’s
solicitor from lawyers in Switzerland, as well as on information furnished by the Public
Prosecutor in Lugano, who has a responsibility for the matter in Switzerland.
Facts as stated in the warrant of arrest and the extradition request
4. In the warrant of arrest dated 15th November, 2013, it is alleged on 9th March, 2012, the
respondent and others assaulted a named individual as an act of revenge. The assault
concerned was carried out in a public place, and the assailants, of whom it is alleged the
respondent was one, were armed with golf clubs and knives. They beat the victim
Page 2 ⇓
repeatedly. It is alleged that the assailants wanted to kill the victim, but did not achieve
that objective because they were disturbed by third party activity.
5. The warrant of arrest summarises the evidence which comprises statements taken from
the victim and his girlfriend (who was with the victim at the time of the assault), the
wounds suffered by the victim, subsequent telephone tapping of telephone conversations
of the respondent and others and forensic evidence.
6. The facts as summarised above are again repeated in the extradition request issued by
the Public Prosecutor to the applicant. Both documents also record that the assailants,
including the respondent, immediately left Italy and from there went onwards to Romania
(the respondent is a Romanian national).
7. The request for extradition also records that one of the assailants has already been found
guilty of attempted homicide in connection with these events and was sentenced on 14th
June, 2013. In a letter to the applicant of 20th August, 2019 (addressing questions put to
Swiss lawyers engaged by the solicitors for the respondent (which I address below) and
the responses of the Swiss lawyers thereto) the Public Prosecutor states that because the
respondent fled Switzerland immediately after the events concerned, it was never
possible to arrest and/or interrogate him. He goes on to say: -
“Nevertheless, on March 9th, 2012, the Public Prosecutor’s Office immediately
opened an investigation (Art. 309 CPP) against both Matache Daniel Paul and his
accomplices Gudi Calin and Began Christian Marian. The investigation ended on
December 18th, 2012, not only against Gudi Calin (sentenced on June 14th, 2013
to 10 years of imprisonment) and Began Christian Marian (still on the run), but also
against Matache Daniel Paul, assuming all evidence and objective findings against
him. Evidence that could not be contested to him as he is still on the run.”
Advices of Swiss lawyers
8. By letter dated 7th June, 2019, Michael J. Staines and Company, solicitors for the
respondent wrote to a firm of lawyers in Geneva (Mentha Avocats) seeking advices for the
purposes of this application. They posed a number of very specific questions and, having
received replies thereto, they referred both questions and replies to the applicant for
comment. In turn, the applicant referred the questions and replies to the Swiss Public
Prosecutor for comment. To the extent relevant for this judgment, the questions and
replies of the Swiss Lawyers, and the comments of the Public Prosecutor may be
summarised as follows: -
(1) Does the Swiss Criminal Justice system have a separate investigation stage and
trial stage?
The Swiss lawyers confirmed that it does, and the Public Prosecutor, in its comment
on this reply, confirmed his agreement with this answer.
(2) How does a case move from the investigation stage to the trial stage?
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The Swiss lawyers advised that upon completion of the investigation, the Public
Prosecutor has two options. The first is to issue an order of abandonment of the
proceedings, and the second is to bring charges before the competent court, based
on the results of the investigation. They further advised that on receipt of the
indictment, the proceedings become pending before the court, and this marks the
beginning of the trial phase. The Swiss Prosecutor indicated his agreement to this
answer, without qualifications.
(3) Who makes the decision that the suspect should be put on trial?
The Swiss lawyers advised that this is a decision to be made by the Public
Prosecutor, whose decision cannot be challenged. Again, the Public Prosecutor
agrees with this answer.
(4) Has the investigation stage of Mr. Matache’s case concluded?
(a) The Swiss lawyers advised that in their opinion, the investigation stage of the
case has not been concluded. They advanced two reasons for this
conclusion. The first is that the Swiss Criminal Procedure Code requires
that:-
“In extensive and complex preliminary proceedings, the public
prosecutor shall question the accused again in a final examination
hearing before concluding the investigation and request the accused to
comment on the findings. (Article 317 S Crim PC).”
They further advised:-
“Moreover, according to Article 318(1) S Crim PC relating to the
conclusion of the proceedings, if the Public Prosecutor regards the
investigation as completed, it shall issue a summary penalty order or
give written notice to those parties whose address is known of the
imminent conclusion of the investigation and inform them whether it is
intended to bring charges or abandon the proceedings.”
The Swiss Lawyers also referred to a letter issued by the Swiss Federal
Department of Justice to the applicant herein, dated 31st July, 2014,
whereby the extradition of the respondent is requested. In this letter it
is stated that: “the Public Prosecutor’s office of the Canton of Tessin is
conducting an investigation against the above named person”. The
same letter however, concludes in the following terms: “We hereby
formally request the extradition of the above mentioned person to
Switzerland for the prosecution of this matter”.
Finally, the Swiss lawyers rely on the fact (agreed by the applicant herein)
that no formal order of conclusion of investigation has been issued, and nor
has any indictment or formal order bringing charges issued.
Page 4 ⇓
(b) In a comment on this conclusion (that the investigation phase is not
concluded), the Public Prosecutor states that the opinion of the lawyers is
“wrong”. In reply to the question (has the investigation stage concluded?),
the Public Prosecutor states:-
“as indicated in the foreword, the preliminary proceedings of Mr.
Matache Daniel Paul are concluded, even if no charges against him
have been brought and the indictment has not been issued yet. To
make that happen, Matache Daniel Paul will have to challenge all the
evidence taken in the preliminary proceedings and this is in his own
interest and in respect of the right to be heard (Art. 3 par. 2 lett. c CPP
and Art. 107 CPP)”.
(5) Is a decision to put Mr. Matache on trial dependent on further investigation being
carried out?
(a) The Swiss lawyers replied that, according to the Swiss Criminal Procedure
Code, the parties, notably the suspect, have the right to be heard. This
arises under Article 107 of the Code and includes the right to participate in
procedural acts, the right to comment on the case and on the proceedings
and the right to request that further evidence be taken. Furthermore, under
Article 317 of the Code, where serious offences are involved, the suspect is
heard in a final examination hearing before concluding the investigation. In
the opinion of the Swiss lawyers therefore any decision to put the respondent
on trial must be preceded by these steps.
(b) In his response, the Public Prosecutor states that the conclusions of the Swiss
lawyers are not entirely correct. He agrees that Article 107 of the Code
applies and he says that “before the issuing of the indictment, all the
evidence taken in the preliminary procedure will be contested to Matache
Daniel Paul and this in his own interest (sic) and in respect of the right to be
heard (Art. 3 par. 2 lett. c CPP and Art. 107 CPP). It is therefore not a
question of “carrying out further investigations”, but only of carrying out this
fundamental investigative measure, without which it is not even possible to
proceed in absentia. Matache Daniel Paul has always knowingly escaped
from this investigative act, so the current objections of Mentha Avocats are
specious.”
(6) Has there been any formal decision being (sic) made to put Mr. Matache on trial?
a) The Swiss lawyers advised that no formal order announcing the conclusion of
the preliminary proceedings have been transmitted by the Swiss authorities
to the Irish authorities. They further state that no formal indictment has
been transmitted either, and it can reasonably be assumed that had an
indictment been issued, it would have been transmitted to the Irish
authorities.
b) The Public Prosecutor confirms that an indictment has not yet issued and
states that this is for the reasons already “widely explained”. By this I
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understand him to mean that it is first necessary for the prosecutor to afford
the respondent the opportunity to be heard in accordance with Article 107 of
the Swiss Criminal Code. He makes no reference to Articles 317 and 318 of
the Code.
Submissions
9. In simple terms, it is submitted on behalf of the respondent that the information received
from the prosecutor, coupled with the advices received from the Swiss lawyers make it
clear that not only has the Public Prosecutor not issued an indictment against the
respondent, nor has he made any decision to issue an indictment. Moreover, it is
submitted that the information received makes it clear that there are two separate and
distinct phases in the criminal justice system in Switzerland, the investigation phase and
the trial phase. It is submitted that the information received from the prosecutor further
makes it clear that the proceedings, have not yet moved from the investigation to the
trial stage, and the Swiss lawyers have so advised. All of that being the case, the
extradition of the respondent is precluded by s. 9 of the Act of 1965, and the respondent
relies upon the decision of the Supreme Court in Attorney General v. Pocevicius
[2015] IESC 59. While I will deal with this case in more detail below, counsel for the respondent
refers and relies in particular on the following passages from the decision of McKechnie J.
in Pocevicius:-
“48. (1)
•
A person should be surrendered if the purpose of the request is “to prosecute”, that
is, to put him on trial for the subject offence.
•
Where such prosecution proceedings are in being, that will be a sufficient
compliance with this requirement.
•
Where such proceedings are not in being the intention to prosecute must be
founded on the existing evidence, as known at the time of the request.
•
Where such proceedings are not in being an intention to charge only is not
sufficient: in addition, there must be a decision to try, i.e. to put the individual on
trial.
48. (3)
•
What is required however is that the decision to prosecute is not contingent or
otherwise dependent on any further investigation producing evidence without which
no such decision could justifiably be made.
•
The investigation must therefore have reached a level whereby there exists
sufficient evidence in the opinion of the competent prosecution authority upon
which the extradited person can be charged and tried and further that a decision to
do so has in fact been made. …
50.
Page 6 ⇓
It can, I think, be specifically and definitively stated at a general level, that a
person will not be extradited unless, at the time of the extradition request, the
requesting country have a fixed intention to ‘charge’ the suspect with the offence(s)
specified in the warrant. By the word ‘charge’ I mean that the subject individual is
no longer simply a ‘suspect’ in the crime under investigation, but rather his status
is then one of ‘an accused’ as these terms are understood in Irish law.”
10. Counsel for the respondent submits that in spite of being asked very direct questions on
the issue, the prosecutor has failed to answer the questions as to whether (a) any
decision to issue an indictment against the respondent has been made or (b) whether or
not it is his intention to issue such an indictment. Moreover, it is submitted that under
the Swiss Criminal Code, the Public Prosecutor is obliged, pursuant to Article 318 thereof,
when an investigation is completed, to issue a summary penalty order or to give written
notice to those parties whose address is known of the imminent conclusion of the
investigation, and to inform such parties as to whether or not it is intended to bring
charges or abandon the proceedings. The assertion of the Public Prosecutor that the
investigation has been completed is at odds with the failure to serve such a notice. While
it might have been impossible for the authorities to serve such a notice while the
respondent was at large, and his address was not known, there is no reason why the
notice could not have been served once the Swiss authorities became aware of his
location.
11. It is submitted on behalf of the respondent that the Court cannot draw inferences from
the information received from the Public Prosecutor that a decision to charge the
respondent has been made. The Public Prosecutor himself has failed to give a clear
answer to this question, notwithstanding that he was asked the question very clearly by
the applicant. Accordingly, it is submitted, the extradition of the respondent should be
refused.
12. Counsel for the applicant on the other hand submits that the Public Prosecutor has clearly
stated that the investigation stage of the proceedings is over, and that the only reason
that an indictment has not yet been issued is the need to afford the respondent his
entitlements under Article 107 of the Swiss Criminal Code to comment on the case
against him, to request that further evidence be taken and to contest the proceedings.
The Prosecutor has been unable to move the proceedings forward to indictment stage by
reason of Article 107 of the Swiss Criminal Justice Code. Until that occurs, an indictment
cannot be issued.
13. The applicant also relies on the decision of the Supreme Court in Pocevicius, which, he
submits, is on all fours with the circumstances of this application, and in which case the
Supreme Court was satisfied that an order for the extradition of the respondent could be
made. Counsel for the applicant refers to the following passages from the decision of
McKechnie J.: -
“53. The request for Mr. Pocevicius’s extradition cannot, in the sense in which the
relevant terms are used in extradition law, be said to be for the purpose of
Page 7 ⇓
‘investigation’ or of ‘continuing the investigation’. The reason why an indictment
has not issued is that under Norwegian law it is a requirement, at least to the
standard of best prosecution practice, that before making a final decision in that
regard, the subject person should be given an opportunity of making a statement
or of putting forward his version of events, so that the police or the court as the
case may be, can assess what it says in light of the evidence which has already
been accumulated. If, as is his right, he fails or refuses to offer any information,
then the evidence as it stands will be submitted to the Director General by the
Public Prosecutor with the recommendation that an indictment should issue. If he
makes a statement, then depending on its content and what any follow-up inquiries
may lead to, the case may be discontinued or it may still be submitted for final
decision. But the crucial point is that if nothing emerges from such an interview
process, the Director General, based on what is presently available, will be advised
to issue an indictment, though the investigation is still open but only so as to offer
the respondent an opportunity of disputing, rebutting or challenging existing
evidence ‘but not for any other specific purpose’: In particular, not for the purpose
of obtaining additional evidence upon which the ultimate decision might rest.
54. Given the diversity of systems which the 1965 Act was intended to accommodate, I
am perfectly satisfied that what has been described herein as remaining to be done,
so as to complete the investigative process, is entirely consistent with the
provisions of the Act and the policy and the objectives behind it: Accordingly, in
my view, this point does not constitute any bar to extradition.
55. The prosecution process must be looked upon as a continuum. In a case such as
this, it involves the various stages the police, the public prosecutors and the
Director General. It has passed through the hands of those who make the
inquiries, conduct the investigation and accumulate the evidence: This part of the
process is thus at an end, subject only to interviewing the respondent if extradited,
and any further inquiries arising therefrom, or which they may be asked to
undertake. Their final act was to transfer the case to the Public Prosecutor with a
recommendation as to its future course. This therefore, subject to the aforesaid,
terminates the involvement of the police with this case.
56. The Public prosecutors have advanced the process as much as they have authority
to do so. They have assessed and evaluated the evidence. They have formed a
view on it. In their opinion, it is of such a character as would sustain and support
an indictment. They have made a recommendation to the Director General to this
effect. They do not have power to go any further. Is the fact therefore that the
ultimate decision to prosecute has not yet been taken fatal to this application? This
is the end point of issue number one.
57. Despite the extensive documentation ultimately submitted, there is no reference
whatsoever as to what view the Director General might take if the evidence remains
as it is. Nor is there any indication of a pattern or course of conduct as to what his
Page 8 ⇓
decision might be in similar circumstances, where such a recommendation has been
made…
58. There is no question of the Director General being able to activate or re-activate
any further part of the investigative process other than to interview the respondent
in the manner and for the purposes, above described. Therefore, in the absence of
further evidence emerging, the options open to him are either to endorse the
recommendation or to decline to do so. If it should be the latter, then the
prosecution proceedings, such as they are, will be at an end. If it should be the
former, an indictment will be made. In such circumstances, the entire process,
looked at as a whole, can be regarded as being in compliance with s.9 of the 1965
Act and one must thus conclude that the requesting state ‘are proceeding against’
Mr. Pocevicius for the offence in question”.
Discussion, Further Information, Further Submissions
14. As mentioned above all formal requirements of the Act of 1965 in respect of requests for
extradition have been satisfied, and this is accepted by the respondent. The respondent
contests this application on one ground only and that is that the requirement in s. 9 of the
Act of 1965 that the respondent be a person who “is being proceeded against” in the
country seeking his extradition, has not been met, because, it is argued, the investigation
stage of the case has not concluded and no decision has been taken to put the
respondent on trial. The respondent relies upon the opinion of the Swiss lawyers that the
investigation has not concluded, the fact that charges have not been brought and that in
response to a direct question as to whether or not a decision had been taken to indict the
respondent, the Public Prosecutor failed to confirm that this is so.
15. Both parties place reliance upon the decision of the Supreme Court in Pocevicius. In that
case, the Kingdom of Norway sought the extradition of Mr. Pocevicius. The evidence
established that the prosecution system in Norway has three levels to it, the first involves
the police as prosecuting authority, which is charged with the responsibility of leading
investigations and, in limited circumstances, the prosecution of offences. Serious cases
however must be transferred to the Public Prosecutor upon the conclusion of the police
investigation. This is the second level. The Public Prosecutor may bring ‘indictments’,
subject to certain exceptions which are reserved solely to the Director General, the third
of the three levels. The Director General brings indictments in the most serious crimes,
and when these cases reach him, they come with a recommendation from the Public
Prosecutor. The case of Pocevicius fell into the latter category and accordingly it was a
matter for the Director General to make the final decision as to whether or not to indict
Mr. Pocevicius. The proceedings against Mr. Pocevicius had arrived at the point where the
Public Prosecutor had made a provisional assessment to the effect that, based upon the
existing evidence, grounds existed for the issuing of an indictment. However, the final
decision to bring forward an indictment rested with the Director General, and this decision
had not been taken because it was first necessary to question the respondent in that
case.
Page 9 ⇓
16. The court in Pocevicius had the benefit of an affidavit from a Mr. Haugnes, a Public
Prosecutor in Norway, in which he stated: -
“If I were to make a recommendation today to the Norwegian Director General….on
the basis of the existing evidence, I would obviously recommend that an indictment
be brought against Pocevicius. On this basis, it could safely be said that it is our
clear intention to bring the case against Pocevicius before the court if he is
extradited to Norway.
It is not a requirement under Norwegian law for a suspect to be questioned before
bringing an indictment against him. No one is obliged to make a statement to the
police in Norway and a suspect/charged person…..are also not obliged to make a
statement to any Court of Justice. Consequently, an indictment may be brought
without the indicted person having made a statement. However, the charged
person’s statement is considered so important to the total evidential situation that
it would contravene best prosecution practice not to question a suspect if he/she is
willing to make a statement.”
17. Even though, therefore, a final decision to issue an indictment had not been taken, and
would not be taken until Mr. Pocevicius was afforded the opportunity to make a
statement, there was a clear intention expressed to bring forward a case against Mr.
Pocevicius, subject only to affording him the right to make a statement.
18. In this case it is submitted on behalf of the respondent that the ‘clear intention’ to
prosecute that was present in Pocevicius is absent, notwithstanding an express question
put to the Public Prosecutor on the issue, and it would not be appropriate for the court to
draw an inference as to such an intention in these circumstances. At the conclusion of
the hearing of the application, I took the view that it would be appropriate for the Court
to ask the Public Prosecutor to address the question again. This was not so much
affording the requesting state an opportunity to “mend its hand”, but rather a recognition
that different criminal justice systems operate in different ways, and it is incumbent on
the Court to ensure that its decision is made with the clearest possible understanding of
the criminal justice system of the requesting state, so far as is relevant to the application
before the Court. In taking this view, I also took account of the following: -
(1) That there is no doubt that there has been a very complete investigation into the
events in respect of which the respondent’s extradition is sought, and that
investigation has already resulted in the prosecution and conviction of another
party;
(2) that the Public Prosecutor has stated that it is not ‘a question of carrying out further
investigations but only of carrying out this fundamental investigative measure’ i.e.,
that required by Article 107 of the Swiss Criminal Code and;
(3) the only reason that this measure has not already been taken is that the
respondent absconded.
Page 10 ⇓
19. Moreover, in Pocevicius, McKechnie J. in addition to the text quoted from para. 48(3) of
his judgment at para. 9 above, also stated that it is not a requirement for extradition that
an investigation be irreversibly concluded, and at para. 48(4) he continued: -
“A decision to cease to prosecute, based on evidence discovered as part of any
ongoing investigation is completely compatible with surrender; it could not be
otherwise for if it was, it could mean that a person whose innocence was
established subsequent to charge, would have to stand trial. Evidently, that could
not be the case.”
20. Accordingly, even if the conduct of the procedures set forth in Articles 107, 317 and 318
of the Swiss Criminal Code resulted in a decision to cease to prosecute, that would be
compatible with surrender.
21. In any case I adjourned this application so that the Public Prosecutor could answer the
following questions: -
(1) Is it the opinion of the Public Prosecutor that there is, as matters stand now,
sufficient evidence to charge and try the respondent?
(2) Has the Public Prosecutor in fact taken a decision to charge and try the respondent,
subject only to compliance with Articles 107, 317 and 318 of the Swiss Criminal
Code?
22. Letters putting these questions to the Public Prosecutor were sent on 30th October, 2019.
The Public Prosecutor replied by letter of 11th November, 2019. He replied as follows: -
(1) “I would like to reiterate that, as matters stand, there is sufficient evidence to put
MATACHE Daniel Paul on trial for the offences for which his extradition is sought
(2) as already mentioned in my letter dated 20 August 2019, before the issuing of the
indictment, all the evidence taken in the preliminary procedure will be contested to
MATACHE Daniel Paul and this is in his own interest and in respect of the right to be
heard (art. 107 CrimPC). I confirm that no decision of indictment against MATACHE
Daniel Paul has been issued yet, because it will first have to challenge all the
evidence taken in the (preliminary) proceedings and this in respect of the right to
be heard (art. 107 CrimPC) and in respect of the guaranteed rights foreseen in art.
317 CrimPC and art. 318 CrimPC, otherwise the issuing of the indictment and the
process will be invalid”.
23. The hearing of this application then reconvened on 25th November, 2019, to hear
submissions from the parties in relation to the replies received from the Public Prosecutor.
On behalf of the applicant, Mr. Kennedy SC, submitted that it is clear from the totality of
the information received that the respondent is not sought for the purposes of
investigation, but for the purpose of proceeding against him. It is submitted that the
status of the respondent is that of an accused person, and not suspect. He is not sought
for the purposes of further investigation. Instead, his extradition is sought for the
Page 11 ⇓
purpose of affording him his statutory right to be heard, and it is only following upon this
that the decision to prosecute can be taken. There is however no question of further
investigations.
24. In Pocevicius, the respondent did not have a statutory right to be heard such as the
respondent has in this case. The prosecutor in that case was following what is considered
to be best practice in Norway, in affording the respondent in that case the right to be
heard. The prosecutor in that case had not yet taken the final decision to prosecute, for
that reason, but nonetheless McKechnie J. considered that the entire process, looked at
as a whole, was in compliance with s. 9 of the Act of 1965, and he concluded that the
requesting state was “proceeding” against Mr. Pocevicius for the offence in question.
25. Mr. Farrell SC, for the respondent, submitted that the response of the Public Prosecutor
did not advance matters at all. The Public Prosecutor was expressly asked if a decision
had been taken to try the respondent subject only to compliance with the Swiss criminal
code. He failed to answer that question and instead explained that the respondent must
be interviewed (or words to that effect) before the issue of an indictment. This is to be
contrasted with the much stronger statement of intention expressed on behalf of the
Norwegian prosecutor in Pocevicius in which he said that “it is our clear intention to bring
the case against Pocevicius before the Court if he is extradited to Norway” (see para. 16
above).
26. It is submitted that evidence in this case does not go this far. There is not in this case
either a decision to try the respondent, nor a clear intention to do so. Accordingly, the
applicant has failed to discharge the requirements of s. 9 of the Act of 1965.
Decision
27. In Pocevicius no decision to try had been taken, but nonetheless the extradition of the
respondent was ordered. Not only that, notwithstanding that the Prosecutor Mr. Haugnes,
stated in an affidavit that:-
“it could safely be said that it is our clear intention to bring the case against
Pocevicius before the court”, that was not his decision to make and as McKechnie J.
said at para. 57 “there is no reference whatsoever as to what view the Director
General might take if the evidence remains as is”.
However, McKechnie J. expressed the view that: “The prosecution process must be looked
upon as a continuum”. He noted that the Public Prosecutors in that case had advanced
the process as much as they had authority to do, and that the only options open to the
Director General following upon the interview of the respondent in that case were to bring
forward an indictment or to bring the proceedings to an end. He was satisfied that the
investigative process was over. He concluded that the requesting state in that case was
“proceeding” against Mr. Pocevicius, and that the entire process, looked at as a whole,
was in compliance with s. 9 of the Act of 1965.
Page 12 ⇓
28. While there are very striking similarities between the facts of this case and those in
Pocevicius, one difference upon which the respondent places much reliance is the
statement of Mr. Haugnes referred to above. This, it is submitted, constituted clear
evidence to indict Mr. Pocevicius, upon which the court relied, and there is no equivalent
statement or evidence in these proceedings. However, it has been clearly stated that in
the opinion of the Public Prosecutor, there is sufficient evidence to put the respondent on
trial, and it has been made clear that no decision to indict the respondent has been issued
only because of the statutory requirements set out in Articles 107, 317 and 318 of the
criminal procedure code. Significantly, the Public Prosecutor also states in his response of
11th November, 2019 to questions put by the Court that if a decision were taken to indict
the respondent before compliance with these provisions of the criminal code, the issuing
of the indictment and the process would be invalid. It is hardly surprising that the Public
Prosecutor would be wary about saying a decision to indict had been taken, even if he
qualified this by saying the decision was conditional upon compliance with statutory
procedures, if there was a risk that such a statement might undermine the entire process.
29. In Pocevicius the procedures being followed by the Public Prosecutor were not mandated
by statute, but were followed as a matter of best practice. Nonetheless, McKechnie J.
accepted that the proceedings could not be brought to indictment stage until those
procedures that are followed as a matter of practice in Norwegian law had been brought
to a conclusion. In this case the prosecutor is obliged as a matter of law to follow the
procedures set forth in the criminal code, including affording the respondent the right to
be heard, before any decision to indict can be taken. The objective of the procedures to
be followed prior to any decision on indictment in each case appears to be quite similar:
to afford the respondent the right to be heard as regards the evidence gathered by the
prosecutor, and, if necessary, to enable the Public Prosecutor to take appropriate action
arising out of any information received. However, it can hardly be that the strength of the
case of the applicant is weaker than that of the applicant in Pocevicius, in circumstances
where in this case the obstacle to the issue of an indictment is mandated by statute,
rather than in the nature of a code of practice.
30. Moreover, it is, I think, of some relevance that one of those alleged to have been in the
company of the respondent on the occasion of the events, in respect of which the
extradition of the respondent is sought, has already been found guilty of attempted
homicide in connection with the same events. While it hardly needs to be said that cases
against those involved in the commission of the same criminal acts will vary depending
upon their degree of involvement, the fact that one of the other parties involved has
already been charged and convicted of attempted homicide is a very clear indicator that
the Public Prosecutor will proceed to issue an indictment against the respondent, having
already formed the conclusion that there is sufficient evidence to bring forward the
indictment, subject only to affording the respondent his statutory rights. I should add
however that this factor merely serves to bolster my conclusion and is not in itself
determinative of this application.
Page 13 ⇓
31. Counsel for the respondent very fairly submitted that this is a marginal case, but that in
his submission there was insufficient evidence for the Court to arrive at the same
conclusion as did McKechnie J. in Pocevicius. However, I cannot agree. Looking at the
entire process, as McKechnie J. did in Pocevicius, I do not believe that there is any doubt
that the requesting state is proceeding against the respondent within the meaning of s. 9
of the Act of 1965, and moreover that it intends to indict the respondent once there has
been compliance with the relevant statutory procedures, but subject to anything the
respondent may have to say as a result of compliance with those procedures. In other
words, the respondent might yet say something in his defence that will persuade the
Public Prosecutor not to issue an indictment, but as in Pocevicius what will follow the
compliance with these procedures will either be the issue of an indictment or the
cessation of proceedings altogether. Whatever may be the ultimate conclusion, I am
satisfied that the surrender of the applicant is not being sought for the purposes of
investigation, but is sought for the purpose of proceedings against the respondent as
required by s. 9 of the Act of 1965. Being satisfied that this is so and also being satisfied
that the requirements of s. 29 of the Act of 1965 have been met, I will make an order
committing the respondent to prison, pursuant to s. 29(1) of the Act of 1965 pending the
order of the Minister for his extradition.
Result: Order made committing the respondent to prison pending the order of the Minister for his extradition.