Appeal finds man must return to face prosecution in Sweden
MJELR -v- Olsson.Neutral citation (2011) IESC 1, Supreme Court Judgment was delivered by Mr Justice Donal O’Donnell on January 13th, 2011; the Chief Justice, Mr Justice John Murray, Mr Justice Nial Fennelly, Ms Justice Fidelma Macken and Mr Justice John MacMenamin concurring.Judgment
A Swedish man who was accused of four offences of robbery and arson in Sweden in October 2005 was ordered to be returned under a European arrest warrant on the basis that the warrant complied with the condition that his prosecution was intended.
This was an appeal against a decision of the High Court to extradite to Sweden Thomas Olsson on foot of the arrest warrant.
Mr Olsson appealed on two issues: one related to the Attorney General’s scheme under which he had received representation, which he claimed did not fully vindicate his right to legal representation; the other to his claim that, as the Swedish authorities had stated they wished to question him in relation to the offences, a decision had not been made to try him for the offence named in the warrant, as required under its procedure.
The evidence made it clear that he would not be prosecuted until the Swedish prosecutors had interviewed him. It was agreed between the parties that the result of that interview could be that he might not be prosecuted at all.
A Swedish lawyer who gave evidence on behalf of the appellant said that his status in Sweden was that he was “on probable cause suspected of committing serious crimes”. The lawyer said that, following his inquiries with the prosecutor, the required decision had not been made and the surrender of the applicant was sought only for the purposes of continuing criminal investigation.
A replying affidavit on behalf of the Swedish authorities stated that the next step in the procedure required the presence of the accused. Under Swedish law, the investigation procedure is formally concluded when the accused is present. No formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final decision until the accused has had an opportunity to make his objections.
This did not mean the appellant was not wanted for the purpose of a criminal prosecution; rather that the next phase of the process could not proceed in his absence.
In relation to the first issue, Mr Justice O’Donnell said that the Attorney General’s scheme could not be described as merely a matter of benevolence or discretion, as claimed by the appellant.
He said an affidavit sworn by an official of the Chief State Solicitor’s office made it clear that in all European arrest warrant cases, the discretion available to the Attorney General was exercised in only one way [in favour of the applicant], as these cases are special by reason of the relevant Act of 2003.
Turning to the second issue, Mr Justice O’Donnell said the case illustrated the fact that the European Arrest Warrant Act 2003, and the procedure under it, “necessarily relates to a sometimes difficult intersection between different legal systems and cultures”.
It was necessary to keep both the nature of the Act and its origins in view; it did not intend that words such as “charge” and “prosecution” should only be understood in the terms these words were understood under the Irish criminal justice system.
The concept of a “decision” under the Act [to charge and try a person] should be understood in the light of “intention” and “purpose” also referred to in the Act and the framework decision.
“When section 21a speaks of ‘a decision’, it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the framework decision,” Mr Justice O’Donnell said.
“A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person.”
He added that a warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient to justify the surrender of the person.
Here it was clear that the person was required for the purposes of conducting a criminal prosecution and Sweden intended to bring a prosecution against him.
It would be entirely within the framework decision and the Act if, after further investigation, the prosecution authorities decided not to prosecute because they had become convinced of the person’s innocence. There would still have been an intention to prosecute and a decision to do so at the time the warrant was issued.
The position of the appellant in this case was not by any means unusual in the Swedish system and represented the norm in a number of European countries, he added.
The High Court was entirely correct to conclude there was a clear intention to bring proceedings within the meaning of the Act, and the only thing that stood in the way of the prosecution was the requirement that the accused be present for an interview where he could respond to the investigation.
The appeal was dismissed.
The full judgment is on courts.ie
Derek Kenneally SC and Sarah Jane O’Callaghan BL, instructed by James MacGuill, for the appellant; Shane Murphy SC, Jeremy Maher SC and Caroline Cummings BL, instructed by the Chief State Solicitor, for the Minister.