12.8. The Court’s Analysis
Forum Considerations and Terrorist Offence
12.8.1. The State’s written submissions to the Supreme Court (and to this Court) quoted approvingly the dicta of Edwards J. in the second leave application in this case that the DPP does not enjoy any choice of forum between the courts of separate states with concurrent jurisdiction and that “[h]er range of decision, and the extent of her discretion, is either to prosecute or not to prosecute in this jurisdiction.” That position, as can be seen from s. 6(9) of the Act of 2005, is not universally correct. Apparently those provisions were not drawn to the attention of either the High Court or the Supreme Court during the contested applications for leave and the resulting appeals.
12.8.2. I considered whether I should bring the parties back for further argument on this matter as I had done in respect of the matters arising in the extradition proceedings. For a variety of reasons I felt it either inappropriate or unnecessary. In light of the decision I am making in the extradition matter, it is far more appropriate to deal with this matter without any further delay. Furthermore, it was an issue the genesis of which was raised in the course of the proceedings namely by the amicus curiae. In particular, the existence of a framework decision creates legal obligations on each Member State and the extent of those obligations could have been addressed by the State if they so wished. Moreover, as it is a legislative provision directly impacting upon the legal obligations of the DPP, the Court is obliged to apply that provision to the consideration of the matters at issue.
12.8.3. The provisions of s. 6(9) of the Act of 2005 regarding jurisdiction (or forum) are limited to matters concerning concurrent jurisdiction in Member States. The Framework Decision on Combating Terrorism does not apparently apply to offences of conspiracy (that may or may not be because conspiracy offences are predominantly common law constructs which are not to be found in many civil law jurisdictions). On the other hand, the Act makes clear that attempts to engage in terrorist activity or threaten to engage in terrorist activity are offences under the Act.
12.8.4. Section 6(9) places an onus on the DPP to cooperate with another Member State with a view to centralising the prosecution of a person in a single Member State where she considers another Member State has jurisdiction to try the person. When applying and interpreting that provision which gives effect to the Framework Decision on Combating Terrorism, the Court “…must do so as far as possible in light of the wording and purpose of the framework decision in order to attain the result which it pursues…” (Criminal Proceedings against Maria Pupino (Case C-105/03) [2005] E.C.R. I-5283, para. 43). The recitals to the Framework Decision on Combating Terrorism identify terrorism as one of the most serious violations of the founding principles of the European Union, namely, universal values of human dignity, liberty, equality and solidarity, respect for human rights and fundamental freedoms, democracy and the rule of law. Recital 7 provides “[j]urisdictional rules should be established to ensure that the terrorist offence may be effectively prosecuted.” Article 9 para. 2 provides that:-
“[w]hen an offence falls within the jurisdiction of more than one Member State and when any of the States concerned can validly prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offences with the aim, if possible, of centralising proceedings in a single Member State.”
12.8.5. As set out in Article 9 para. 1, the Framework Decision on Combating Terrorism clearly requires Member States to establish a wide jurisdiction in the prosecution of terrorist offences. Thus, it is clear that where an offence is aimed against the people of a Member State that Member State must take the necessary measures to establish jurisdiction.
12.8.6. Furthermore, Article 9 para. 2 requires cooperation on prosecution decisions where the same facts show jurisdiction elsewhere. In circumstances where there is an EU transnational element to the terrorist offence, there is an onus on each Member State to engage in the process of centralising proceedings.
12.8.7. I have considered the meaning of the phrases such as “an offence falls” or “the basis of the same facts.” They cannot mean that the offence must already be proven before it must be considered. This is because an offence may only properly be referred to as proven at the conclusion of a trial resulting in a verdict of guilt. Therefore these must be understood as references to the alleged offence or the alleged facts.
12.8.8. In those circumstances, I am of the view that s. 6(9), when read in accordance with Article 9 para. 2, requires the DPP to consider this issue of jurisdiction at the point at which she herself is considering prosecution. It is the alleged facts and the alleged offence which give rise to the duty of the DPP to consider whether another Member State has jurisdiction to try the person for the alleged offence and to the requirement for cooperation with the relevant authorities.
12.8.9. It is not for this Court, however, to decide if the allegations met the criteria under those provisions. That is a matter for the DPP. Undoubtedly however in the circumstances of this case it is a matter which at the very least requires her consideration. It is clear from all the information placed before the Court that, at a minimum, the possibility arises on the facts alleged against Mr. Damache that terrorist offences may have been committed and that at a minimum they may give rise to a claim of jurisdiction by Sweden. It appears that no consideration has been given by the DPP as to whether another Member State has jurisdiction to try this matter. That is a reasonable inference to make in circumstances where the DPP has submitted to this Court that she does not have any jurisdiction to consider forum matters. Moreover, the DPP’s Guidelines do not provide for dealing with the situation where forum considerations might come into play under the Act of 2005. Perhaps if the DPP is of the view that the alleged facts simply do not amount to credible evidence of an offence, then she is not required to revert to any other Member State with a view to a prosecution being centralised. However, in this case we do not know if the DPP took her decision based upon lack of evidence or on public interest grounds. All we know is that she does not consider that she does not consider that she has any choice of forum as between the courts of separate states with concurrent jurisdiction and therefore she never considered the question of jurisdiction by another Member State.
12.8.10. In my view in light of the provisions of s. 6(9) of the Act of 2005, the DPP was at least required to address her mind to whether she considered another Member State had jurisdiction to try Mr. Damache on the basis of the alleged facts. In light of the existence of the Framework Decision on Combating Terrorism, the DPP must be on notice that it is highly likely, if not a certainty, that Sweden has implemented the Framework Decision and put in place laws which permit it to exercise jurisdiction over a terrorist offence aimed against its people.
12.8.11. I am conscious that conspiracy is not within the Framework Direction on Combating Terrorism and that the extent of the evidence placed before the DPP is unknown. However, it must be assumed that, at a minimum, the memoranda of interview with Mr. Damache during his detention for investigation of the alleged offence of conspiracy to murder Mr. Vilks was sent to her. This included the Gardaí putting to Mr. Damache that he and Ms. LaRose had obtained the passport of K.G. “to get another person into Sweden” “to carry out a terrorist attack or possibly murder Lars Vilks or a Swedish journalist”. Presumably this questioning of Mr. Damache was based upon alleged facts which the Gardaí viewed as giving rise to a reasonable suspicion that he was engaged in that activity. At the very least the DPP was under an obligation to consider whether Sweden might view those same alleged facts as an attempt to commit a terrorist offence.
12.8.12. Furthermore, counsel for the State submitted that for the purposes of establishing a corresponding offence the facts alleged amounted to the commission of a terrorist offence contrary to section 6 of the Act of 2005 i.e. on the actual facts there was an attempt to engage in a terrorist activity, namely the murder of Mr. Lars Vilk, a Swedish citizen. This is dealt with in Part 3 of the judgment.
12.8.13. Moreover, at the point at which the DPP was asked to reconsider the situation with regard to a prosecution of Mr. Damache, she clearly had the information set out in the extradition request and supporting documentation concerning the allegations made by the U.S. authorities against him. In all the circumstances, the DPP was obliged to at the very least address whether she considered on the facts alleged that another member state, and in particular Sweden, might have jurisdiction to try Mr. Damache. The superseding indictment sets out a number of overt acts allegedly carried out by Ms. LaRose regarding contact with Swedish authorities and the seeking out of information regarding the location of RS#1, who in the context of the extradition request when viewed as a whole, can only be Lars Vilks but who is identified as a resident of Sweden.
12.8.14. The Act of 2005 concerns forum issues between Member States of the European Union. Does that mean it is of no relevance to the forum issue raised in this case? In my view, that does not follow. As I have indicated, it may well be that Sweden for example might assert jurisdiction to prosecute any person who might be involved in an attempt to murder its citizen or any resident of its state. In circumstances where the person is high profile or indeed where the attempted murder is being carried out with the intention seriously to intimidate a population or to seriously destabilise the social structures of the State, it would amount to a terrorist offence under the Framework Decision on Combating Terrorism. The attempted murder of a cartoonist because of his cartoons might well be viewed by Sweden as an intention seriously to intimidate a population or to seriously destabilise the social structures of that Member State.
12.8.15. If Mr. Damache was to be surrendered to Sweden for prosecution, the legal position would be that he could not thereafter be extradited to the U.S. for prosecution for the same offence.
12.8.16. The first issue raised by the Supreme Court was whether the DPP’s decision was reviewable. The DPP submitted that she did not have to consider forum at all as she had no choice of forum between separate states with concurrent jurisdiction. The DPP submitted that if she was wrong then the decision was reviewable. There is a legal requirement for the DPP to consider forum albeit in relation to EU Member States. Mr. Damache’s principle aim in these proceedings is to avoid being sent to the U.S.A. for trial. In furtherance of that, he argued that forum conveniens was an appropriate consideration for the DPP. If a review of forum issues was undertaken by the DPP and ultimately Sweden, this at least raises the possibility that Mr. Damache may not be sent to the U.S.A..
12.8.17. In light of all of the foregoing, it is clear that this is a situation where the DPP abdicated her function to consider forum (albeit unwittingly), or acted under an improper policy (the policy being that forum will not be considered). The matter is therefore reviewable within the well settled parameters of review of DPP decisions. I will consider further below if I should issue an Order of certiorari.
12.8.18. In light of the above and in circumstances where there central issue raised by the DPP has been decided against her it is not necessary or appropriate that I deal with the remaining issues that have been raised by the parties in these judicial reviews..
Are Orders Required?
12.8.19. Although both parties were in general agreement that all issues should be decided by me especially as either side might appeal, there was divergence as to whether that meant I should grant orders for judicial review if I had already refused to order extradition. Counsel for Mr. Damache was of the view that if the matter of extradition was decided in his favour, there was a question over whether it was appropriate to decide on the question of judicial review. I take this as really a question over the propriety of granting Orders of judicial review where on the basis of the case he has made they are no longer necessary. The State view was that I should proceed to make Orders if I find the decision of the DPP reviewable no matter what decision was made in the extradition.
12.8.20. Orders by way of judicial review are discretionary. They are only made after a process in which an applicant has been granted leave to apply for such orders and after a subsequent hearing before the court. I have had regard to the ambit of the remedy of certiorari (and by extension the remedy of injunction when sought by judicial review) contained in the illuminating passage in State (Abenglen Properties Ltd.) v. Corporation of Dublin [1984] I.R. 381 by O’Higgins C.J. at pp. 392-393, where he states, inter alia:-
“[t]his discretion remains unfettered where the applicant for the relief has no real interest in the proceedings and is not a person aggrieved by the decision ...Where, however, such applicant has been affected or penalised and is an aggrieved person, it is commonly said that certiorari issues ex debito justitiae.”
12.8.21. In the extradition proceedings, I have held that Mr. Damache should not be committed to prison to await the Minister’s order to extradite him. He is therefore not a person with a real interest in these judicial review proceedings as he is no longer aggrieved by the decision not to prosecute him in the true sense of that word. He no longer wishes to be granted that order and he is not truly aggrieved by that decision as its consequences no longer affect him. Should the extradition matter be appealed by the State and this decision overturned, it is only at that stage will he be an aggrieved party.
12.8.22. I have considered therefore whether the proper Order is to make no Order. However it seems to me that to do so may leave Mr. Damache in a difficult position if there is such an appeal by the State solely in relation to the extradition proceedings and it is successful. I consider that there could be a lacuna in the protection of his rights should I not make a conditional order in terms as follows:-
(i) An Order of by way of injunction quashing the decision of the DPP, communicated on the 31st January, 2014, by letter dated 28th January, 2014, refusing to reconsider her decision taken on the 16th March, 2011, not to prosecute the applicant, such Order not to issue in the event that there is no appeal by the State in the matter of the extradition proceedings against Mr. Damache or in the event that such an appeal is taken but is unsuccessful.
12.8.23. This is an Order for an injunction as that is the more appropriate remedy directed at the DPP. If necessary, the precise format of the Order may be agreed on hearing the parties further.
12.8.24. I make no comment on whether the DPP is entitled to, or is barred from, a reconsideration of the prosecution in the absence of the injunction quashing her decision not to reconsider. The Supreme Court has given its views in relation to a number of cases that have come before it relating to the reconsideration of prosecutorial decisions. Section 43 of the Criminal Justice (Terrorist Offences) Act of 2005 may or may not be a provision of some relevance.
1 Professor Rovner in her affidavits referred to a Thomas Silverstein who has spent approximately 30 years in solitary confinement, the last ten of them in ADX and whom she represents in a civil action before the Federal Courts. Professor Ian O’Donnell referred to Mr. Silverstein as prisoner Zero insofar as it was his killing of a correctional officer that directly led to the widespread use of solitary confinement in US prisons. Interestingly Professor O’Donnell utilised Mr. Silverstein as an example of how exceptionally and exceptional prisoners can overcome the cruelty and inhumanity of solitary confinement. During the course of the hearing, counsel for the State handed to the court a decision of the US Court of Appeal’s Tenth Circuit in Mr. Silverstein’s case in which the court rejected his appeal against the District Court’s grant of summary judgment in favour of the BoP. They did this for the purpose of asserting that his complaints were groundless, whereas counsel for Mr. Damache replied by stating that this proved the lack of protection in the US system against solitary confinement. I simply comment that the court at p. 34 of the judgment noted that he could communicate with others (albeit by yelling from cell to cell or during adjacent recreation). It may well be that the court was taking Mr. Silverstein’s case at its highest in terms of this being an appeal in relation to a summary judgment.
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