Irish-Brazil co-operation on extradition or exchange of information is unlikely

Brazil and Ireland are very different countries in terms of geographical size, population, economy, corruption and crime. They have very different legal systems and law-enforcement mechanisms.

There is rampant crime and corruption in Brazil, and it has been reported there were more than 50,000 homicides in 2014. There are five main police forces, with three at the federal level and at least two at local level. On the political front, the president has been stood down while an impeachment process is in progress.

The investigation being carried out into alleged ticket scalping by members of the Olympic Council of Ireland and associates (which is denied) is a very different form of investigation from any that would take place in this jurisdiction.

Brazil’s system allows for evidence-gathering after an arrest, and the remand in custody of suspected individuals while this process is in place. Also there is much greater involvement of prosecutors and judges in the actual investigation alongside law enforcement.

Prosecution decision

Our system requires An Garda Síochána to assemble the evidence in a particular case and submit this information to the Director of Public Prosecutions for a decision on prosecution or otherwise. This is a very significant difference between the two systems.

Furthermore, when allegations are made against people resident in another country, or when evidence believed to relate to the crime is in another country, a mutual assistance process is initiated.

This process is governed here by the Criminal Justice (Mutual Assistance) Act 2008. The central authority for this action is the Department of Justice. Compliance with requests is subject to legal scrutiny and may be acceded to or not.

Where a requesting country requires the extradition of an individual a formal legal process is invoked. This is achieved where there are extradition agreements between countries or where countries engage in bilateral agreements to mutual advantage. Some important qualifications apply. Extradition can only be authorised for the purpose of being charged before a court and not for investigation purposes. Also, the crime alleged has to be recognised as such in both countries. There are other qualifiers relating to human rights considerations.

The offences alleged against Pat Hickey et al are not criminal offences under Irish law and that is likely to thwart co-operation on extradition or exchange of information.

It appears that a number of separate matters have been conflated into one significant mess of pottage. First, consider the way the Olympic tickets allocated to the OCI were distributed. It is not difficult to unveil this – there are only four staff employed by the OCI.

It is presumed that commercial contracts existed between the OCI and resellers of the tickets. Can it be presumed that the directors of the OCI Ltd approved this process?

In any event, any investigation would follow the money and the answers most likely rest in that quarter.

Financial backers

The OCI is a limited company and it is not answerable to financial backers – either Government or commercial.

Indeed the Charter of the International Olympic Committee declares: “The NOCs [National Olympic Committees] must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter.”

Second, there is widespread and justifiable concern that international sporting bodies have become all-powerful in their practices. These concerns relate both to the OCI and to Fifa and their subordinate bodies.

Law enforcement is required to act in a legal, proportionate manner and, with necessity, in the discharge of its powers. The filming and arrest of individuals in Brazil seems designed to humiliate and subdue. Indeed Hickey’s incarceration in a maximum-security prison seems from this perspective to be an appalling abuse of power.

Nevertheless, the OCI has enjoyed a privileged position with massive financial support from the taxpayer – €425,000 last year alone – which allowed it to have a cash balance of nearly €1 million at the start of this year. It also awarded Hickey an honorarium of €60,000 last year. It remains accountable to itself, with its directors practically enjoying open-ended tenure.

Money allocated

The case for a governance review seems obvious. Clearly the State has power to withdraw financial support and to insist on the inclusion of State nominees on the board. It also has the option of clawing back money already allocated.

A non-statutory inquiry cannot efficiently establish the facts. There is a potential conflict with the ongoing criminal inquiries in Brazil as any release of information here could have an impact on the criminal process. John O’Brien is a former detective chief superintendent and former national head of Interpol and Europol