Extradition Act, 1965 (Part II) — Draft Order: Motion.

Wednesday, 17 July 1991

Seanad Éireann Debate
Vol. 129 No. 17

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Mr. Fallon: Information on Sean Fallon  Zoom on Sean Fallon  I move:

That Seanad Éireann approves the draft Order applying Part II of the Extradition Act, 1965 to—

(a) the Contracting Parties to the European Convention on Extradition;

(b) the Contracting Parties to the Hague Convention for the Suppression of Unlawful Seizure of Aircraft;

(c) the Contracting Parties to the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation;

(d) the Contracting Parties to the Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports serving International Civil Aviation, supplementary to the Montreal Convention; and

(e) the Contracting Parties to the Vienna Convention on the Physical Protection of Nuclear Material.

Minister of State at the Department of Foreign Affairs (Mr. Calleary): Information on Seán Calleary  Zoom on Seán Calleary  Senators may find the length of this motion and the fact that it refers to five different international agreements somewhat confusing. However, let me assure the House that while the subject under discussion, namely, extradition, is of course of the utmost importance in our international relations, the particular aspects of extradition which we are dealing with now are of a technical legal nature.

Today we are dealing with Part II of the Extradition Act, 1965. The motion does not concern extradition to the [1664] United Kingdom as that is dealt with under Part III of the Act — a quite separate procedure into which I do not propose to enter today.

As Senators will be aware, the governing legislation in Ireland as regards extradition is the Extradition Act, 1965 which is modelled very closely on the European Convention on Extradition. Indeed, many of the side notes in the Extradition Act, 1965 refer directly to the European Convention on Extradition.

Section 8 (1) of the 1965 Extradition Act provides that where the State is a party to an extradition agreement, whether bilateral or multilateral, with another country the Government may by order apply Part II of that Act to that country.

The effect of applying Part II of the Extradition Act to a country is to enable the extradition in accordance with Irish law of persons to and from Ireland in respect of that country. The basic law governing extradition is contained in that Act. The Act also includes the steps which must be followed when a requesting State applies for the extradition of an individual as well as providing appropriate safeguards for that individual. I would like to draw the attention of the House to a few sections of the Act in this regard.

To take section 10 of the Act first, it provides that extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty. In other words, minor offences are not extraditable.

Section 9 provides that were a country requests the extradition of a person who is being proceeded against for an offence or the carrying out of a sentence, that person shall, subject to the procedures and safeguards provided by law, be handed over to that country.

While sections 8, 9 and 10 of the 1965 Act establish the basic framework of the State's extradition obligations, section 7 [1665] of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 governs the procedure for the making of Government extradition orders. It stipulates that the Dáil and the Seanad shall pass motions approving the terms of a draft order before the Government makes such an order. This procedure has been in operation since 1987 and gives both Houses of the Oireachtas an opportunity to keep abreast of new developments in regard to the extradition undertakings of the State.

As Senators will be aware, there have been many occasions since 1965 when Part II of the Extradition Act, 1965 has been applied to various countries. This has arisen in relation to countries which are parties to the European Convention. It has also arisen as a result of the State becoming a party to other international agreements which include provisions regarding prosecution or extradition of alleged offenders.

As I have said already, whilst the minutiae of the application of Part II of the Extradition Act, 1965 to various countries may be relatively routine, the subject matter itself is one of the greatest importance for the international role of the State in the fight against crime. The international agreements, the subject of the draft order, deal with major areas of crime and contain extradition provisions relating to those areas. The first of these, the European Convention on Extradition, is important because it provides a framework for extradition. It was drawn up under the auspices of the Council of Europe and is designed to introduce certain uniform rules on extradition between the states parties to the convention. The convention imposes an obligation on the State, when requested by another state party, to extradite all persons against whom the requesting state is proceeding for an offence which carries a maximum penalty of one year's imprisonment or more.

While the European Convention deals with a wide range of offences depending on the penalty which they attract, the other four conventions deal with specific [1666] crimes. For example, the Hague Convention deals with international measures for the prosecution of alleged offenders in relation to hijacking. The Montreal Convention seeks to provide an international regime to deal with acts of violence against civil aviation no matter where they occur, for example, an attack against a pilot or the placing of a bomb on board a plane. The Montreal Protocol deals with another important aspect of the safety of travel and civil aviation and concerns the suppression of unlawful acts of violence at airports. On a separate topic, the Vienna Convention deals with measures to ensure the physical protection of nuclear materials. In particular, the convention deals with the prevention of terrorism involving nuclear materials.

There are two methods by which, through our legal system, we can join in the international effort to combat crime: prosecution or extradition. At a time of such ease of mobility internationally the apprehension and conviction of criminals becomes a global concern which cannot always be met by prosecution within the State. I need only mention the difficulty in trying to collect evidence and ensure the attendance of witnesses concerning a crime that was committed thousands of miles from here. In such cases, it makes more sense to extradite a suspect to face trial in the courts of the country which has the most tangible link with the crime. That country is in a better position to prosecute the alleged offender for that particular crime. In such cases, attempts to prosecute in this jurisdiction could prove unsatisfactory. Of course, the option to prosecute before our courts is still available even when extradition is permitted and it might very well be the appropriate course in a particular instance. However, in many cases, extradition is the only realistic course of action and provision should, therefore, be made for it.

Extradition is recognised as a vital tool in the fight against crime and an important weapon in the fight against terrorism. Those governments and parliaments, which are determined to [1667] ensure that their territories are not used as safe havens within which criminals and terrorists may evade justice, acknowledge the importance of effective and wide-ranging extradition arrangements. It would be very unsatisfactory if the mere movement of alleged offenders from one jurisdiction to another were to give them refuge from the legal process and the administration of justice. The objective of these conventions and this protocol is to increase co-operation between the contracting parties in their efforts to bring criminals and terrorists to justice.

These conventions also provide, and it is a most important point, the conditions under which extradition may take place. These conditions include the procedures which must be observed and the safeguards available to an individual before a requested state hands over any person sought to the requesting state. Any individual facing extradition proceedings before our courts will be entitled to all the rights and protections guaranteed under the Constitution, under our legislation and in particular under the Extradition Acts.

Having referred to the European Convention on Extradition and extradition in general, I turn my attention now to the other four international agreements dealt with in this draft order. All of them include provisions concerning extradition. These provisions are amongst the most important provisions in these Conventions if they are to be truly effective and it is in the interest of the State that effect should be given to them. Under these four agreements, where an alleged offender is found in the territory of a contracting state, such a state is obliged to submit the alleged offender to its competent authorities for prosecution or extradition. Where no extradition treaty exists with other contracting parties then these Conventions provide that the Conventions may be used as the legal basis for extradition in relation to the offences specified therein.

This House most recently approved the terms of draft orders applying Part II of [1668] the Extradition Act, 1965 in relation to the European Convention, the Hague Convention and the Montreal Convention, on 14 December 1988. Many Senators will, therefore, be familiar with these Conventions. The orders subsequently made by the Government came into effect on 13 January 1989. It is now necessary to update the list of participating countries and to include the two new Conventions in the order currently before this House. The present order, therefore, consolidates in one single extradition order all the multilateral extradition obligations of the State to date. I assure this House that the lists of countries, parties to all the Conventions, will be brought right up to date before the order is actually made by the Government.

Ireland is not yet a party to either the Montreal Protocol or the Vienna Convention. It is intended that the State should ratify both the Protocol and the Convention as soon as possible. To do this, the State should be in a position to give effect to the extradition provisions under these two international instruments.

The Montreal Protocol is concerned with the suppression of unlawful acts of violence at airports. The Protocol will be read as one instrument with the 1971 Montreal Convention by the states parties to both agreements.

The Vienna Convention deals with measurs to ensure the physical protection of nuclear materials. The Convention is concerned with the prevention of terrorism involving nuclear materials. It is intended that all twelve member states of the European Community will ratify the Convention at the same time. The making of this order by the Government will enable the State to meet the additional extradition provisions contained in the Protocol and the Vienna Convention.

Finally, I stress that extradition is essentially a legal matter concerned with the administration of justice and the enforcement of the rule of law amongst nations. Giving effect to extradition arrangements is an example of civilised [1669] behaviour according to the law of nations. Ireland has always supported efforts to develop and strengthen the international legal order; our business today should be seen in that light. In order to fulfil our international obligations, in order to support the rule of law and the administration of justice amongst nations, I commend this motion to the House.

Mr. McDonald: Information on Charles B. McDonald  Zoom on Charles B. McDonald  On behalf of the main Opposition Party I welcome the Minister of State to the House and the decision of the Government to ratify the Montreal Protocol which deals with violence at airports, and the Vienna Convention which deals with the protection of nuclear materials in transit.

With so much media accessibility and continuous news coverage over the last few years, most people in the country are acutely aware of world problems. We get a blow by blow account of the various acts of violence and terrorism right across the world. The vast majority of people here are pleased that we are updating the list of international conventions which we often take too long to ratify. We have a voice, which I respectfully suggest is listened to in the League of Nations, in the United Nations, the Council of Europe and the European Community, and we could be front-runners in encouraging as many Governments as possible to be part of the international family to ensure the observance of the international rule of law. Laws should be in place to support and safeguard the rule of law and, indeed, international civilisation. James Dillon, during his long period in the Dáil, repeated time and time again that the price of peace was eternal vigilance. All democracies, and all nations with any respect for law, must take a very strong stand.

People may not be very familiar with the Montreal Convention, but they have heard of the Lockerbie disaster. The Montreal Convention agreed after that disaster was an effort to bring the culprits to justice. Nobody needs to have the horrible result of terrorist activity [1670] explained to them, whether it is perpetrated for nefarious reasons or the publicity these organisations seek, or for other reasons. Due to the more advanced communications technology I hope we will soon be able to get across to all people that we must live together in peace and harmony. The only way forward is to have a comprehensive list of conventions and agreements, especially on extradition, to demonstrate in no uncertain way that people who perpetrate dastardly crimes will not have a safe haven in any civilised countries. In the combined membership of the United Nations, the European Community and the Council of Europe, there are sufficient countries to form a bastion of civilisation.

The House does not need to be reminded of the great uncertainty Saddam Hussein is causing right across the Middle East by his cat and mouse games with his nuclear facilities. I hope the international community will take a very firm stand to ensure that parts of the world cannot be held up to ransom, even by a country who claims to be as powerful as Iraq appears to have been. It is important that no sector of the community, especially the citizens of these states, should be made to suffer.

I thank the Minister for his very clear explanation of the proposal before the House. On behalf of my colleagues and myself I wholeheartedly welcome and support the motion. I hope that Ireland, since we have a respected voice internationally, will be to the forefront in ensuring that as many conventions as possible are ratified without delay in order to ensure the observance of international law.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I, too, welcome the Minister to the House and, indeed, welcome this draft order. The order seeks to apply Part II of the Extradition Act, 1965, to various Conventions particularly the Hague and the Montreal Conventions which are becoming increasingly important to the international community, hijacking of aircraft in the context of the safety of civil aviation and of the need [1671] for the physical protection of nuclear material. This is a very important matter in which we have a role to play as part of the international community. We must ensure that not only are we good Europeans but also a member of good standing in the world community. Obviously, I would prefer if we had debated this matter sooner. Will the Minister say why we are only now debating this draft order which deals with a matter of such crucial importance? Why could we not have approved the draft order shortly after 1987 so that we would only have to update it as the need arose?

I have some reservations about this draft order, particularly as it relates to the contracting parties to the European Convention on Extradition. As I understand it, Ireland has entered only two reservations to the European Convention on Extradition. The reservation in relation to Article 6 states that the Government of Ireland declares that the term “national” in the convention is defined as meaning the citizens of Ireland so far as they are concerned — this is a fairly technical matter — while the reservation in relation to Article 9 states that the Irish authorities will not grant extradition if the final judgment in respect of the offence for which extradition is requested has been passed in the third state on the person clamed.

I do not regard either of those reservations as being of any major consequence, particularly when placed beside the reservations expressed by other countries. Other countries have gone into detail in the reservations they have expressed in relation to the application of the European Convention on Extradition. It seems that Ireland has been rather lackadaisical in its defence of the constitutional right of our citizens in this respect. Unlike other countries who have entered very strong reservations, Ireland has a Constitution which obliges us to protect the integrity of our citizens to a very considerable degree. I will be interested to hear the Minister's response to these points.

I am not satisfied that we have put in [1672] place adequate protections for our citizens. For example, can we not ensure that many of the offences referred to here are dealt with in this jurisdiction? The Minister said there is provision for this possibility but I am not sure where this is provided for in the legislation. In the context of political extradition, we have seen the mess caused by the United Kingdom in terms of the non-use of the Criminal Law Jurisdiction Act. This does not apply in this case as it relates to another section of the Act. However, much hassle and suspicion could have been avoided if, like Austria, our State did not grant extradition if the person could be brought before an Irish court. Why can this not be the normal rule in such matters?

What safeguards exist for citizens in terms of the granting of extradition? To what extent has a prima facie case to be established? I understand there is no need for a prima facie case to be presented in Irish courts or no need to convince Irish courts of the necessity for extradition — this can operate on the basis of a warrant. Other countries have specified the need to present a case and ensure that it is of sufficient substance as to necessitate the extradition of a citizen of one country to another.

We also need to look at the need for special courts. At present a number of countries have provision for special courts to deal with special offences, offences which are covered under these conventions. In terms of the protection of our citizens, we should enter a reservation that none of our citizens will be extradited to a special court in another country.

I wish to refer to the sentences which can be handed down. As the Minister indicated, we have a reference, to a minor offence — the penalty for which cannot be more than 12 months imprisonment. However, there is no reference to the maximum penalty or to what is now no longer the sanction of last resort, the death penalty. As we know, the death penalty still exists in Belgium, one of the forwarding countries. Could we not introduce a reservation that there should [1673] not be extradition in respect of any offence whereby the punishment would exceed that sanctioned in this jurisdiction? I would have thought that that would have been a sine qua non in relation to this matter.

The Minister is seeking to apply the draft order to the various Conventions in place and the provisions of the European Convention on Extradition. However, it is not satisfactory that the matter should simply be dealt with by way of an order without addressing some of the basic civil rights which our Constitution grants to its citizens. I am interested in hearing what the Minister has to say about the reservations which have been entered by other countries, the safeguards enshrined in our Constitution and the recent updating of our law by the Minister for Justice which abolished the death penalty. We have not taken into consideration the possibility of the situation being made worse for our citizens if the legislation is applied in the manner specified under this draft order.

While I welcome the legislation and the degree of international co-operation which exists in relation to matters which clearly are no longer of an insular nature but which affect every citizen of the world community, nevertheless this nation and we, as legislators, have a basic obligation to ensure the strict operation of the safeguards in our Constitution and the law of this land. I am anxious to hear what the Minister has to say in relation to the application of this draft order in that respect.

Minister of State at the Department of Foreign Affairs (Mr. Calleary): Information on Seán Calleary  Zoom on Seán Calleary  First, I should like to thank Senator McDonald and Senator Costello for their observations and general support for this motion. I want to try to alleviate some of Senator Costello's doubts about the draft order. He referred to the recent abolition of the death penalty. Extradition will not normally be granted for an offence which is punishable by death under the law of the requesting country. This is provided for in section 19 of the 1965 Act. This provision is sacrosanct and Senator [1674] Costello need have no worries in that regard.

Ireland fully applies all applicable international law on extradition. Extradition is in accordance with Irish law. An alleged offender is fully protected under our Constitution and will not be extradited if it is contrary to any part of our Constitution. There are several defences available under the 1965 Act to persons whose extradition is being sought by a foreign country. The best known defence is that of a political offence. Section 11 of the 1965 Act provides that extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence. The Seanad should bear in mind that section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, qualifies considerably the type of offence which should be regarded by the courts as political. Section 11 of the 1965 Act provides that extradition will not be granted where the real reason underlying an extradition request is that the foreign state seeking the extradition of a person is doing so in order to persecute or punish that person on account of his race, his religion, his nationality or indeed his political opinion. A fundamental part of the extradition process is that extradition shall not be granted where the description of the offence charged in the requesting country is altered in the course of proceedings. A person claimed shall only be proceeded against or sentenced in so far as the offence against its new description is shown by its constituent elements to be an offence that would allow extradition.

As Senator Costello knows, the Minister for Justice has the power to refuse extradition at any time and, indeed, to order the release of a person if the Minister is of the opinion that the extradition of that person is prohibited under any provision of Part II — section 35 — of the Extradition Act, 1965. Our citizens are well protected, and Senator Costello need have no fears in that regard. The law has been in force since 1965 and not only have the Government sought to implement it but it was implemented by [1675] two Coalition Governments in which the Senator's party was a partner.

Question put and agreed to.

Sitting suspended at 4.35 p.m. and resumed at 5 p.m.

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