The legal view: Insofar as the 'Colombia Three' took a gamble in returning home it is a reasonably safe bet that they will remain here, writes Remy FarrellThe legal view
Since the return of the "Colombia Three" in recent days, much of the focus has been on the response of the Government to any prospective request for extradition from the Colombian authorities.
While it is often the refuge of government to refer difficult political decisions concerning criminal investigation and prosecution to An Garda Síochána or the DPP, all issues relating to extradition are a matter for the Government and specifically the Attorney General and the Minister for Justice.
It has been said that the three men have taken a very considerable gamble in choosing to return home notwithstanding the possible risk of future extradition proceedings being brought against them.
However, the practical reality is that such proceedings are at best a remote possibility and even in the event that extradition was sought the process itself would be fraught with legal difficulty.
While the Colombian authorities have made much of the fact that there is an Interpol arrest warrant in existence in respect of the three men, this is of little relevance from the point of view of domestic Irish extradition law as there is no basis for executing such a warrant in this jurisdiction. Extradition could only take place on foot of an agreement or treaty between Ireland and Colombia.
There are a number of treaties which can be considered extradition agreements for the purposes of Irish law to which both Ireland and Colombia are signatories but these relate to very specific offences such as the hijacking of aircraft, torture and trafficking of nuclear materials and drugs and could not be invoked to extradite the "Colombia Three". These are, in any event, multilateral treaties and as such are difficult (possibly to the point of being unworkable) to invoke for the purposes of an extradition request as their provisions generally do not take account of many of the technical and procedural aspects of Irish extradition law.
So long as there is no bilateral extradition treaty between Ireland and Colombia there can be no extradition.
This then begs the question as to whether or not the Government would enter into such an agreement. The most significant difficulty in this regard would be the propriety of doing so in circumstances where Colombia continues to be roundly criticised by the United Nations for persistent and apparently systematic human rights abuses.
While the operation of extradition agreements are ultimately a matter for the executive, Article 29 of the Constitution requires any treaties which involve a charge on public finances to be approved by the Dáil.
This applies to extradition treaties due to the associated legal costs and the costs of transporting those being extradited outside the jurisdiction. It would, therefore, be impossible for the Government to enter into an extradition treaty with Colombia without seeking the approval of the Dáil.
Even assuming that there was a treaty between Ireland and Colombia which allowed for extradition, a number of serious impediments would still lie in the way of an extradition, not least of which is the general prohibition on extradition for political offences found in Section 9 of the Extradition Act, 1965. Although the scope of this exception has been limited since its heyday in the 1980s when it was the cause of significant disquiet in the UK as a result of the Irish courts refusing extradition in respect of a number of IRA suspects, it nonetheless would be very much a live issue which would arise in the context of any extradition proceedings.
Other technical legal hurdles would also have to be overcome such as showing that there was correspondence between the offences for which the men were convicted and offences in this jurisdiction. In other words that were the same offences committed here that they would be punishable by a term of imprisonment. This is not as straightforward a proposition as it may at first appear and necessarily involves the Irish courts in a detailed analysis of the offences for which the fugitive has been convicted.
If one takes matters a step further and assumes that an extradition request overcame these hurdles, was given the imprimatur of the High Court and an order was made for the extradition of the three men, this would be far from the end of the matter. It is open to anyone who has had an order for extradition made against them to bring proceedings under Section 50 of the Extradition Act, 1965.
This is a procedure where the fugitive seeks to prevent the order for his extradition being acted upon on various grounds. Perhaps the most relevant ground in the case of the "Colombia Three" is the apprehension previously voiced by their supporters that their lives would be at risk from pro-government paramilitary elements in the event that they were returned to Colombia.
A brief perusal of material available through Amnesty International and the United Nations High Commissioner for Human Rights would suggest that such concerns have a firm basis in reality.
The Supreme Court has in the past prohibited extradition on the grounds of an apprehension as to the safety of the fugitive once handed over to the requesting state. In the 1990 case of Finucane v McMahon the applicant, Dermot Finucane, had been the subject of an extradition order in relation to offences alleged to have occurred during a mass breakout from the Maze Prison in 1983 during the course of which a prison officer died. There was evidence that in the days following the escape the remaining IRA prisoners were subjected to systematic assaults and mistreatment by prison officers by way of retaliation for the death of their colleague.
This abuse was subsequently covered up and the prison officers refused to co-operate with any of the official investigations. The Supreme Court ultimately took the view that against such a background and particularly in circumstances where the relevant authorities had taken no disciplinary action against the prison officers, it was probable that Finucane would be subjected to similar abuse if returned to Northern Ireland to serve out his prison sentence. Consequently they granted an order prohibiting his extradition.
It is not difficult to see how such precedent is relevant to the apparent failure of the Colombian government to act against paramilitaries with whom it shares a confluence of interests. In circumstances where the concern is that the lives of those extradited is at risk rather than simply the prospect of ill-treatment by prison authorities, there is a strong possibility that the Irish courts would feel obliged to intervene.
Insofar as the "Colombia Three" took a gamble in returning home it is probably best regarded as a reasonably safe bet that they will remain here. While none of the legal impediments to their extradition is of itself insuperable, the cumulative effect of the many problems which would lie in the path of such an extradition effectively means that the possibility of their being returned to Colombia remains at best slight.
• Remy Farrell is a practising barrister
