Supreme Court allows appeal on extradition documentation errors but remits substantive fraud case to High Court.

THE SUPREME COURT

[S.C. No: 338 of 2007]

Denham J.

Geoghegan J.

Fennelly J.

Between/

The Attorney General

Applicant/Respondent

and

Ludmilla Borisovna Pratkunas

Respondent/Appellant

Judgment delivered the 2nd day of April, 2009 by Denham J.

1. This is an appeal by Ludmilla Borisovna Pratkunas, the respondent/appellant, "the appellant", from the judgment of the High Court

(Peart J.) delivered on the 28th November, 2007, and from the order committing the appellant to prison pending her surrender to the

Russian Federation, in accordance with Part II of the Extradition Act, 1965. On the appellant lodging a notice of appeal the High Court

granted bail pending the hearing of this appeal.

2. The appellant is a national of Estonia who is sought by the Russian Federation under the Extradition Act, 1965. The request is

dated the 31st March, 2006. A warrant of arrest was issued by the High Court on the 25th April, 2006, and the appellant was

arrested on the 26th June, 2006.

3. The appellant returned to Estonia from Russia on the 20th November, 2000. In June, 2001 she moved to Ireland with her husband.

4. The appellant is sought for the purpose of being charged with an alleged offence of fraud.

5. The allegation is that the appellant and an accomplice, a Mr. Vaganov, had, through a company Mirage Limited, signed a contract

on the 24th March, 2000, agreeing to repay a debt owed by the Reft Hydroelectric Station to the State's "Sverdlovgosenergonadzor"

in the amount of 200,000 roubles. It appears that in return for discharging the debts of the Hydroelectric Station the agreement was

that certain products to the value of 200,000 roubles would be transferred to the company. It is alleged that pursuant to this

agreement Mirage Limited received a certificate in June, 2000 to the effect that the money had been transferred and that the

appellant and Mr. Vaganov used this certificate to receive concrete slabs to the value of 381,866 roubles between the 30th August,

2000 and the 31st December, 2000. The Russian Federation alleges that the company did not discharge the debt as agreed and that

the appellant and Mr. Vaganov misappropriated the concrete blocks they had received.

6. An investigation was commenced in April, 2002 and charges were preferred in June, 2002. Mr. Vaganov was found guilty in October,

2002 and was given a five year suspended sentence on condition that he repay the money.

7. The appellant has deposed that in about October, 2000 she was detained by the Russian authorities. It transpired that this was

not related to the charge now in issue, but that she was detained for failing to register as a foreign national within three days of her

arrival in the country. She averred that while in police custody she was subjected to degrading treatment and to physical and verbal

abuse. She stated that her apartment was ransacked and documents relevant to the matter the subject of the warrant in this case

were taken. She stated that she tried to complain about this to the police but was told that if she did not return to Estonia within six

hours her family would never see her again.

8. The High Court

The learned High Court judge pointed out that there was no objection by the appellant to the documents or other matters referred to

in s.29 of the Extradition Act, 1965 and he was satisfied the section had been complied with. The High Court was also satisfied that

the offence was a corresponding offence. Subject to issues raised by the appellant, the learned High Court judge was satisfied that

all of the requirements of the Extradition Act, 1965 have been complied with and that the extradition of the appellant should be

ordered.

9. The issues raised by appellant in the High Court included:-

(i) documentation;

(ii) inhuman and degrading treatment;

(iii) protection of constitutional rights; and

(iv) the right to a fair trial.

Also, addressed by the learned trial judge, there was a comparison drawn between extraditions pursuant to Part II of the Extradition

Act, 1965 and the European Arrest Warrant Act system.

10. Documentation

The appellant submitted that the terms of s.37 of the Extradition Act, 1965 do not apply to documents furnished to the Court in

response to issues raised by the appellant. The appellants had raised issues as to her treatment when she was arrested in 2000 in

Russia. The requesting state rejected her allegations and provided copies of reports prepared at the time of her arrest and detention,

and a statement that no complaint was made at that time. Counsel for the appellant submitted that the High Court ought not to have

had regard to the documents as they had not been exhibited by the relevant person in the requesting state in an affidavit. It was

submitted that s.37 of the Extradition Act, 1965 did not apply to these documents, that s.37 applies only to documents referred to in

s.25 of the Extradition Act, 1965.

11. The High Court

The learned High Court judge held:-

"On this point I am not satisfied that s. 37 operates so as to prevent this Court from having regard to these reports

where they are provided by the requesting authority in order to deal with allegations made by the respondent following

the Request having been made. It is by now trite law to state that extradition proceedings are ‘sui generis’ in nature, and

that there are not adversarial proceedings where the very strict applications of the laws of evidence must be adhered to,

such as in a criminal trial. Counsel has submitted that where the onus of proof is on the respondent to stand up her

allegations of mistreatment, it is impossible to meet the rejection of her allegations unless the countervailing facts are

sworn to so that the deponent can be cross-examined and the evidence tested in the usual way. However, there is no

reality in that situation arising in this situation. Perhaps some official in the applicant’s office could have exhibited these

documents as being documents which have been received from the requesting state, but there would be absolutely no

value in cross-examining that deponent since he or she is not the author of the documents in question. The only

satisfactory cross-examination from the respondent’s point of view would be of the author of the reports themselves who

would have to travel from the requesting state in order to be available for such cross-examination. I am satisfied that

even if such a person was compellable as a witness, it is wholly outside the accepted procedures for extradition

proceedings that such would be required."

The High Court reached determinations on the other issues raised, to which I shall not refer at this stage.

12.Grounds of Appeal

The appellant has filed a number of grounds of appeal submitting that the learned trial judge erred in law and in fact in ordering the

surrender of the appellant to the Russian Federation. One of the initial grounds of appeal was that the learned trial judge erred in law

in admitting evidence and relying on documents proved pursuant to s.37 of the Extradition Act, 1965.

13.Submissions

Written and oral submissions were made on behalf of the appellant and the Attorney General.

On the documentation issue it was submitted on behalf of the appellant that s.37 of the Extradition Act, 1965 refers to "documents

supporting a request for extradition" and on the proper limited interpretation of this, such documents are confined to those referred to

as in s.25(1) and "evidence as to any matter to which such proceedings relate" are properly the subject of affidavit evidence under

s.7B.

On behalf of the Attorney General it was submitted that the documents admissible under s.37 are not limited to those set out in s.25

of the Extradition Act, 1965. It was submitted that the plain and ordinary meaning of the phrase "a document supporting a request

from a requesting country" leads to the conclusion that any documents sent for the purposes of supporting a request, whether

initially with the request or subsequently in response to a query raised, is admissible thereunder provided it is signed and sealed as

required.

It was further submitted on behalf of the Attorney General that if, which is not accepted, there is any doubt as to the plain words in

s.37, that s.37 falls to be interpreted in the light of "the principle of mutual trust and confidence at the heart of bilateral or

multilateral extradition arrangements." It was submitted that such an approach would eschew reliance upon the type of technicality

raised on the appellant's behalf.

14. Decision

The learned trial judge held that the provisions of s.29 of the Act of 1965, being matters upon which a court must be satisfied prior to

an order of extradition, were met. Further, that the offence was a corresponding offence. No issue arises on these fundamental

matters. The issues which arise do so from the allegations made in the High Court, and on appeal to this Court, by the appellant.

In response to the appellant's allegations, the Ambassador of the Russian Federation forwarded a "reference letter" rejecting the

appellant's account of ill-treatment, signed by Mr. Bulanova, Deputy Prosecutor, Irbit Inter-Area Public Prosecutor's Office, Chief

Adviser of Justice. The letter exhibited:-

(a) a copy of the interrogation report of Mr. Vaganov;

(b) a copy of the official Inspection Report;

(c) a copy of the Administrative Violation Report;

(d) a copy of the report on the personal search of the appellant;

(e) a copy of the report on detention conditions in temporary custody centres and pre-trial detention facilities in the

Sverdlovsk region.

15.The first issue is as to the appropriate method of putting these matters in evidence: whether the documents may be admitted

under the provisions of s.37 of the Act of 1965 or, s.7B. It is a matter of statutory law.

16.Statute Law

Section 37 of the Extradition Act, 1965 (as inserted by s.17(b) of the Extradition (European Union Conventions) Act, 2001) provides:-

"(1) In proceedings to which this Part applies, a document supporting a request for extradition from a requesting country

(other than a Convention country) shall be received in evidence without further proof if it purports—

(a) to be signed by a judge, magistrate or officer of the requesting country, and

(b) to be certified by being sealed with the seal of a minister of state, ministry, department of state or such other

person as performs in that country functions the same as or similar to those performed by the Minister under this

Act, as may be appropriate, and judicial notice shall be taken of such seal."

(2) In proceedings to which this Part applies, a document purporting to be a copy of a document supporting a request for

extradition from a Convention country shall, subject to subsection (3), be received in evidence without further proof.

(3) In proceedings to which this Part applies, a document that purports to be certified by-

(a) the judicial authority in a Convention country that issued the original, or

(b) an officer of the Central Authority of such a country duly authorised to do so to be a true copy of a conviction

and sentence or detention order immediately enforceable or, as the case may be, the warrant of arrest or other

order having the same effect and issued in accordance with the procedure laid down in the law of that country,

shall be received in evidence without further proof, and where the seal of the judicial authority or Central Authority

concerned has been affixed to the document, judicial notice shall be taken of that seal."

Section 7B of the Extradition Act, 1965

Section 7B was inserted in the Extradition Act, 1965 Act by section 22 of the Act of 2001 to allow for the admission of evidence on

affidavit in the following terms:-

"(1) In proceedings under this Act evidence as to any matter to which such proceedings relate may be given by affidavit

or by a statement in writing that purports to have been sworn—

(a) by the deponent in a place other than the State, and

(b) in the presence of a person duly authorised under the law of the place concerned to attest to the swearing of

such a statement by a deponent, howsoever such a statement is described under the law of that place.

(2) In proceedings referred to in subsection (1), the High Court may, if it considers that the interests of justice so

require, direct that oral evidence of the matters described in the affidavit or statement concerned be given, and the

court may, for the purpose of receiving oral evidence, adjourn the proceedings to a later date."

Section 25 of the Act of 1965

Section 25(1) of the Extradition Act, 1965, as amended by the Act of 2001, provides as follows:-

"(1) A request for extradition shall be supported by the following documents—

(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable

or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance

with the procedure laid down in the law of the requesting country;

(b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time

and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting

country;

(c) a copy of the relevant enactments of the requesting country or, where this is not possible, a statement of the

relevant law;

(d) as accurate a description as possible of the person claimed, together with any other information which will help

to establish his identity and nationality, and

(e) any other document required under the relevant extradition provisions."

17. Issue

The issue to be determined is whether s.37 is applicable to the documents furnished in response to the appellant's allegations, or

whether other statutory provisions apply.

18. Section 37

Section 37 of the Extradition Act, 1965, as amended, applies to proceedings to which Part II applies. Part II applies to these

proceedings.

Section 37 was applied to the formal documents presented to the High Court pursuant to s.25 of the Extradition Act, 1965. They

were received in evidence and no issue arises on these fundamental documents. Thus s.37 enabled those documents to be received

in evidence without further proof.

Section 37 states that "a document supporting a request for extradition from a requesting country shall be received in evidence

without further proof" if it complies with the section.

Section 37 applies to "a document supporting a request for extradition from a requesting country". The term "a document supporting a

request for extradition" is not further defined. However, it clearly refers to "documents supporting a request". Section 25 refers to the

documents to support a request. It is mandatory in requiring certain documents to support a request. The section has been set out in

full earlier in the judgment, as may be seen the section lists as required (a) the original or authenticated copy of the conviction and

sentence or detention order or warrant of arrest; (b) a statement of the offences/s for which extradition is requested; (c) a copy of

the relevant law of the requesting country; (d) a description of the requested person; (e) any other document under the relevant

extradition provisions. This is a mandatory list of the documents to accompany a request. Thus it is a special category of documents

- without which a request for extradition can not proceed. By using the words "a document supporting a request for extradition" in

s.37 a logical link has been established between the two sections. The words of s.37 are precise and are expressly related to a

document supporting a request. There are no wider terms, such as "a document in extradition proceedings".

The words of s.37 are clear. The plain meaning of the words are that they apply to the documents supporting the request, as listed in

s.25. I am satisfied that s.37 applies to the documents listed in s.25, that is the documents to support the request, which are listed

in s.25. Section 25(1)(a) to (d) sets out precise descriptions of what is required. Section 25(1)(e) provides for "other documents

required under the relevant extradition provisions." This is not a general catch all phrase. It refers to further documents required

under the relevant extradition provisions. Thus, for example, further precise documents may be required under the arrangements

between requesting and requested states.

I am satisfied that the exception provided in s.37, the rule of admissibility provided in s.37, applies only to the documents of s.25. I

do not believe that it was the intention to apply this rule to other documents. It is a narrowly based statutory rule.

19. Other than a Convention country

Neither party in these proceedings relied upon or referred to the words "other than a Convention country" in s.37. Thus no part of this

decision relates to those words, or may be inferred to so relate.

Section 37 of the Extradition Act, 1965 was amended by s.17 of the Extradition (European Conventions) Act 2001. That latter Act

sought generally to incorporate into Irish law two European Union treaties on extradition: the Convention on Simplified Extradition

Procedures of 10th March, 1995, and the Convention on Extradition of 27th September, 1996. Part 3 of the Act of 2001, in which the

amending s.17 is contained, relates to the implementation of the 1996 Convention. The amended version of s.37 of the Extradition

Act, 1965 creates two separate regimes for the authentication of material in support of a request for extradition. Section 37(1) deals

with material from a country "other than a Convention country", whilst sections 37(2) and (3) deal with material from a "Convention

country". Section 9 of the Act of 2001 amends s.3 of the Extradition Act, 1965 by stating that a "Convention country" means a

country designated under s.10(1) of the Act of 2001. Section 10 of the Act of 2001 provides that the Minister for Foreign Affairs may

designate any country that has adopted the Convention of 1996. However, to date, no order under this section appears to have been

made. As such, there are no Convention countries for the purposes of sections 37(2) and (3) of the Extradition Act, 1965.

Section 37(1) of the Extradition Act, 1965, as amended, operates in relation to countries to which the 1996 Convention and the

procedures under the European Arrest Warrant scheme do not apply; one of these countries, by virtue of the Extradition Act 1965

(Application of Part II) Order 2000 (S.I. No. 474 of 2000), is the Russian Federation. Consequently, the relevant applicable law in this

case is s.37(1).

20. Section 7B

Section 7B of the Extradition Act, 1965 refers to the giving of evidence in proceedings under the Act. It is a section relating to the

giving of evidence by affidavit, or, by oral evidence. It is a broad provision. It is not linked, as is s.37, to "a document supporting a

request". It is not limited by such a link. This statutory provision exists together with that of s.37.

21. There is a clear statutory scheme as to the proof of documents. The formal documents supporting the request may be received in

evidence without further proof if the requirements in s.37 have been met. Further documents, filed by either party, are not part of

the formal documents supporting a request and should be in compliance with s.7B of the Act of 1965.

22. In this case the documents supporting the request met the requirements of s.37 and were received in evidence by the learned

trial judge. There has been no appeal on this issue. Thus his finding that the provisions of s.25 of the Act of 1965 have been met

stands. However, the other documents filed to meet the allegations of the appellant on behalf of the requesting state, purported to

meet the requirements of s.37. This was an error, as the applicable provisions are those of s.7B.

23. In the circumstances I would remit the matter to the High Court. This will enable the parties to bring the evidence in the

appropriate form before the High Court for consideration.

24. Part II and not a European Arrest Warrant

This is a request made pursuant to Part II of the Extradition Act, 1965, which is applicable to a request from the Russian Federation.

It is not a request pursuant to the European Arrest Warrant Scheme of the European Union. The concepts of mutual cooperation and

mutual trust which are at the root of the European Arrest Warrant Scheme do not apply to a request pursuant to the Extradition Act,

1965. The developing jurisprudence and presumptions of the European Arrest Warrant System do not apply to an application under

Part II of the Act of 1965

25. Conclusion

For the reasons given I would allow the appeal to the extent addressed, that is on the documentation issue. I would remit this case

to the High Court so that if the appellant wishes she may bring evidence before the Court according to the appropriate statutory law.

Also, the Attorney General may wish to bring evidence before the Court and this may be done pursuant to s.7B.

In so deciding I make no decision on the substantive issues raised, nor should any decision be inferred. The High Court judge will be in

the position to consider this matter de novo on the evidence which may be brought before the Court.