I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, together with his officials. Before asking the Minister to begin I wish to advise everyone that we will receive a short presentation from the Minister which will be followed by a question and answer session. I invite the Minister to make his presentation.
EU-US Agreements on Extradition and Mutual Legal Assistance: Motion.
The EU-US Agreement on Extradition and the EU-US Agreement on Mutual Legal Assistance arise from a decision by the European Council in the aftermath of the events of 9/11 to open negotiations with the USA on closer co-operation in criminal matters. Negotiations were conducted by the Presidency on behalf of the EU and culminated in the signing of the agreements in Washington on 23 June 2003. When all EU member states and the US have completed their internal procedures to give effect to the agreements, the EU will then adopt them by way of a Council decision.
The EU-US agreements seek to improve bilateral co-operation between the parties in criminal matters, particularly in the areas of terrorism and transnational crime. The EU-US agreements are to be given effect by way of bilateral agreements between each member state and the USA, which incorporate the terms of the EU-US agreements.
Ireland has had bilateral treaties on extradition and mutual legal assistance with the USA since 1983 and 2001 respectively. New instruments that amend and update the bilateral treaties to the extent necessary to bring them into line with the EU-US agreements were negotiated with the USA and were signed in Dublin in 2005. These instruments are the subject of separate motions under Article 29.5.2° of the Constitution which I understand will be considered by the Select Committee on Justice, Equality, Defence and Women's Rights next week.
The text of the agreements and an explanatory note have been circulated to members of the committee to assist in their consideration of the motion. I understand that as the agreements were being negotiated, my predecessor briefed this committee on progress in the negotiations and a presentation on an advanced draft of the text was given by Department officials.
The provisions of the agreements are mainly procedural in nature and, beginning with the agreement on extradition, I will go through the provisions of each in more detail — focusing on those provisions which necessitated amendments to our existing bilateral treaties.
Article 1 sets out the object and purpose of the agreement. Article 2 defines certain terms for the purpose of the agreement. Article 3 sets out the scope of the application of the agreement in relation to bilateral treaties between member states and the USA. Article 4 defines extraditable offences for the purpose of the agreement. Nothing in Articles 1 to 4 of the agreement requires any amendment of our existing treaty.
Article 5 deals with the transmission and authentication of documents. It provides at (1) for the new means of transmission of requests for extradition in Article 7, which I will come to shortly, to be regarded as transmission via the diplomatic channel for the purposes of this Article. Article 5(2) provides for admissibility in evidence, without further proof, of documents bearing the certificate or seal of the appropriate Ministry. The 1983 treaty has been amended to provide for these changes. Article 6 deals with transmission of requests for provisional arrest and no change to the 1983 treaty is required.
In dealing with Article 5(1), I referred to new means of transmission of requests for extradition provided for Article 7. The new means are set out in Article 7(1) which provides that, where a person is held under provisional arrest, the formal extradition request can be transmitted by submitting the necessary documents to the Embassy of the requested state and this complies with the requirement under Article 5(1). A new article has been inserted in the 1983 Treaty to provide for this. Article 8, which deals with supplemental information, includes a new provision that supplementary information may be requested and provided directly between Departments of Justice. The 1983 treaty has been amended to enable this.
Article 9 concerns temporary surrender. It provides that the requested state may temporarily surrender the person sought to the requesting state for the purpose of prosecution. There is a no similar provision in the 1983 treaty and a new provision has been inserted to provide for the type of temporary surrender envisaged.
Article 10 provides for situations where there are multiple requests for extradition surrender of a person and sets out guidelines as to criteria to be taken into account in making decisions in such circumstances.
Article 11 provides for a simplified extradition procedure where the requested person consents to surrender. There was no equivalent provision in the 1983 treaty and a new article has been inserted to give effect to this provision.
Article 12 deals with the authorisation of transit of persons being surrendered to one of the parties by another of the parties, or a third state, through the territory of another state. Article 12(3) provides that, in the case of air transport, no authorisation is required where there is no scheduled landing. However, where there is an unscheduled landing authorisation procedures apply. The 1983 treaty has been amended to reflect the provisions on air transport and unscheduled landings.
Article 13 deals with offences punishable by death. It provides that a requested state may seek guarantees that the death penalty will not be imposed in such cases or where, for procedural reasons, this guarantee cannot be given, may seek a guarantee that the death penalty, if imposed, will not be carried out. If the requesting state does not accept these conditions, the request for extradition may be denied. This is an advance on the provisions of the 1983 treaty which has been amended accordingly.
Article 14 deals with how sensitive information in a request is to be dealt with and has no implications for the 1983 treaty. Similarly, Article 15, which sets out the consultation procedures to apply between the parties, does not affect the 1983 treaty.
Article 16 provides that the agreement shall apply to offences committed before and after its entry into force. It also sets out how requests pending at the time of its entry into force are to be dealt with. The 1983 treaty has been amended accordingly.
Article 17, on non-derogation, and Article 18, which deals with future bilateral treaties with member states, have no direct consequences for the 1983 treaty. Articles 19 to 22 of the agreement are standard technical provisions dealing with designations and notifications under the agreement, territorial application and the review and entry into force of the agreement. Appropriate amendments to the 1983 treaty have been made and provisions included in the instrument to give effect to these articles.
Turning to the mutual assistance instrument, a number of the provisions in this instrument will be very familiar to the committee as it debated them during passage of the Criminal Justice (Mutual Assistance) Bill earlier this year. Article 1 of the agreement commits the contracting parties to enhancing co-operation and mutual legal assistance. Article 2 merely defines "Contracting Parties" and "Member State". Article 3 applies the provisions of the agreement to bilateral treaties between member states and the US and confirms its application in the absence of such treaties. This article also places a requirement on member states to conclude a bilateral agreement with the US.
Article 4 makes provision for the identification of bank accounts and banking information. A request for information under this article must relate to an identified natural or legal person suspected of or charged with a criminal offence. Action may also be taken for the purpose of identifying information regarding natural or legal persons convicted or otherwise involved in a criminal offence, identifying information in the possession of non-bank financial institutions or identifying financial transactions unrelated to accounts.
Article 5 concerns the establishment and operation of joint investigation teams between the parties. Article 6 provides that the contracting parties shall take the necessary measures to enable the use of video conferencing for the purpose of taking testimony of a witness or expert. The making of intentionally false statements or other misconduct on the part of a witness or expert shall, without prejudice to any jurisdiction of the requesting state, be punishable in the requested state in accordance with practice in similar domestic proceedings.
Article 7 allows for the expedited transmission of requests and related communications, such as by e-mail or fax, with formal confirmation to follow where required by the requested state. Article 8 extends mutual legal assistance to national administrative authorities investigating conduct with a view to a criminal prosecution or referral to criminal investigation or prosecution authorities.
Article 9 sets down limitations on the use of information or evidence obtained with a view to the protection of personal and other data. The article confirms the circumstances in which information or evidence can be used, including criminal investigations or proceedings, preventing an immediate and serious threat to public security and any other circumstance with prior consent of the requested state.
Article 10 provides that, where requested, a state will endeavour to keep a request and its contents confidential. However, if a request cannot be executed without breaking confidentiality, the requested state must consult with the requesting state to determine whether execution should occur.
Article 11 provides that consultation should occur between the contracting parties to enable the most effective use of the agreement and to resolve disputes regarding interpretation and application of the agreement. Article 12 applies the agreement, with exceptions, to offences committed before its entry into force and to requests made after entry into force. The exceptions are Articles 6 and 7 relating to use of video conferencing and the expedited transmission of requests which shall apply to any requests pending on the date of entry into force.
Article 13 provides, subject to Articles 4.5 and 9.2(b), that the agreement is without prejudice to the use by the requested state of grounds for refusal available under a bilateral treaty or its applicable legal provisions such as prejudicing sovereignty, security, public order or other essential interests. Article 4.5 prohibits a party from refusing requests for bank information on the grounds of bank secrecy. Article 9.2(b) is intended to ensure that refusal of assistance on data protection grounds may be invoked only in exceptional circumstances.
Articles 14 to 18 are technical provisions addressing the need for consistency between the EU agreement and any future bilateral agreements between member states and the US; designations and notifications required under the agreement; the territorial application of the agreement; and a review clause and entry into force and termination of the agreement. I commend the motion to the committee.
I thank the Minister for his attendance, and for the briefing documentation and his address on these important issues. Perhaps the Minister can take us through the procedure as to the time lapse involved, given there would appear to have been a delay in referring these matters to the committee. The Minister speaks of agreements made in 2003 and 2005 but we are coming to the end of 2008. It strikes me there is something of a time lapse which perhaps can be explained by the fact the Criminal Justice (Mutual Assistance) Act only commenced last month. Given the manner in which we deal with European treaties and articles in the context of our business here, at some stage we might be subjected to criticism on the basis of delay.
With regard to Article 13, the Minister referred to offences which in some states may be punishable by death and he speaks in terms of guarantees that the death penalty will not be imposed if guarantees are sought. What criteria are applied in this regard? A guarantee may be sought but I wonder about the procedure for ensuring such a guarantee will be given rather than sought, and what options are available in the event that such a guarantee is not given. I note in certain circumstances that the extradition application may be denied but this would fall short of a guarantee because it would imply a certain discretion. Is there a precedent and what are the criteria laid down for such?
Deputy Flanagan suggested there was some delay. The Criminal Justice (Mutual Assistance) Act 2008 came into force on 1 September and is significant legislation dealing with many other issues. This took some time. The US Senate approved the EU-US agreement only on 23 September so it has taken time for it to put the procedures into place. Three member states other than Ireland have still to complete their domestic ratification procedures. We are just part of a process and the Americans are doing it at the same time as us.
There is a provision that allows countries such as Ireland, which do not accept the imposition of a death penalty, to ensure that people who may be convictable of a capital offence are not extradited. The only sanction available is that we refuse when we do not get sufficient guarantees. We can seek these guarantees and if we do not receive them the extradition does not go ahead. I cannot envisage any other circumstances where there can be any sanction other than a refusal to extradite.
I also welcome the Minister. I have a number of specific questions, one of which relates to the point just addressed on capital punishment in Article 13 of the extradition agreement. From the Minister's response I am not clear about this. I do not see why the word "may" is used in the last line of Article 13. As Deputy Charles Flanagan said, it is impossible to know why the word "shall" was not used because, clearly, no EU member state operates the death penalty. That is a requirement of EU membership. I do not see how a request for extradition could be granted if the US did not give a guarantee that the death penalty would not be carried out. I ask the Minister to clarify why there appears to be a discretion left in the article. Article 3 permits a bilateral treaty provision to govern capital punishment instead. If the word "may" is there, and if Article 13 would allow a person to be extradited from Ireland to face the death penalty in the US, as the provision provides, why do we not conduct a bilateral treaty saying we will not extradite anybody who may face the death penalty in the US?
Article 12 of the same agreement relates to transit. This will raise alarm signals given the climate of extraordinary rendition. Why is there no guarantee in Article 12(1) on the third state that has made the request? I see that a member state can authorise transportation of a person surrendered to the US by a third state or by the US to a third state. There seems to be no proviso or safeguard on what procedures the third state will apply regarding the trial of the person requested for extradition. I have a concern that we might examine conducting a bilateral treaty, if there is none in existence, where we would lay down safeguards such as the principle of double criminality. We may already have this in place but, if not, we should have. Where a person is requested by a third, non-EU state we should at least require that the offence for which he or she is required to be surrendered should be a recognised offence in our criminal code as well as that of the third state.
Finally, I have a query on the mutual legal assistance agreement. This relates to the Article 4 provision on the identification of bank information. I am concerned that there is no requirement that a person be charged with a criminal offence before a requested state may be asked to communicate very personal and private information regarding bank accounts. I wonder whether we can strengthen it. According to Article 4(4) a state "may" limit its obligation to provide assistance to an offence which is punishable at least under the double criminality procedure. I would have thought that might be a very bare minimum for us. Article 9, which provides for some safeguards on protection of personal data, does not provide enough safeguards. I seek some assurance from the Minister that we at least use the discretion available to us under Article 4(4) that we would require that an offence would at least be punishable under the laws of both requested and requesting states, particularly where a person is merely suspected of a criminal charge and no charge has been brought against him or her in the requesting state.
These agreements are a matter of compromise between the US and the EU and its member states. With respect, the word "may" or "shall" is not relevant here because Ireland does not have the death penalty and there is no obvious move in that respect. I would not lay great emphasis on the difference between "may" and "shall". It is to give others that option if they so decide. The possible transfer of a person to a third state is already excluded in the original 1983 treaty. The Senator made a third point.
The mutual assistance agreement relates to the identification of bank information. Article 4.2 provides that a request for information described shall include "sufficient information to enable the competent authority of the requesting state to: (i) reasonably suspect that a natural or legal person concerned has engaged in a criminal offence". That is already contained in the existing Act of 2008. That only confirms the existing practice on mutual assistance between the two member states in the possible prosecution of a criminal offence, the transfer of information. There was another point.
I made a point on Article 12 of the first treaty and Article 4 of the second about double criminality. I asked whether there was a guarantee on the transit provision that the person surrendered be surrendered for an offence recognised as criminal in our law.
Yes. Dual criminality, the insistence that there be correspondence between offences in the two states, is always the case.
I thank the Minister. The final point was the same point on Article 4 of the mutual assistance agreement. Have we exercised our discretion there to also provide for double criminality, that we would supply information only where the offence is recognised in our criminal law?
It would be a criminal offence in this State. It requires that a request for information include "sufficient information to enable the competent authority of the requested state to: (i) reasonably suspect that a person has engaged in a criminal offence".
That, to me, was slightly ambiguous. It does not state whether it refers to a criminal offence in the requesting state. Reading subsection (4) it sounded to me as if subsection (2) refers to a criminal offence which might not be so recognised in this State, if this was the requested state. Clearly it would have to be a criminal offence in the requesting state.
I would have thought that in any interpretation of the phrase "criminal offence" in this treaty, which is part of the 2008 Act, a court would regard it to refer to a criminal offence in this State because it is under Irish law.
I welcome the Minister to the committee. I have a question on Article 3 on the bilateral treaties between the US and the member states. I seek a broader answer on the EU position rather than just an Irish answer. Does Ireland or the EU have any concerns about having agreements with the US, particularly with its record on human rights abuses? This includes issues such as Guantanamo Bay, the death penalty and bombing of civilians in Afghanistan. Many in Ireland and throughout Europe have major concerns about the US record on human rights issues. I would like to know the broader view on that issue.
The second issue concerns Article 5, the establishment and operation of joint investigation teams between the parties. This is a relevant issue. We must have credibility and respect between the parties. A classic example of this is the case of the Miami Five, where five Cubans trying to prevent terrorist attacks in their country passed on information to the FBI but were arrested and charged with spying. When one goes to Havana, Cuba they are treated like the Birmingham Six because they are five innocent people who were trying to prevent attacks on their country. Their country has suffered approximately 3,500 civilian deaths over the past 50 years. I ask the question in light of five people trying to defend their country from right-wing extremists based in Florida. When they identified the source, they were imprisoned and their families were treated badly. I raise the case in respect of Article 5, concerning the establishment and operation of joint investigation teams.
Regarding Article 12(3), in the case of air transport, no authorisation is required where there is to be no scheduled landing. Can the Minister clarify this point? I wish to raise the issue of Shannon Airport, an important matter for many Irish citizens who are concerned at the potential threat of human rights abuses.
Article 9 sets out the limitations on the use of information or evidence obtained with a view to the protection of personal or other data. This is important because we need limitations. What limitations are envisaged?
I will give a general answer to the general question of what Deputy McGrath perceives as a restriction on civil liberty in the US. The preamble to the agreement refers to protecting the respective democratic societies and common values, having due regard to the rights of individuals and the rule of law, mindful of the guarantees under the respective legal systems which provide an accused person with the right to a fair trial, including the right to adjudication by an impartial tribunal established pursuant to law. The agreement relates to the entitlement to a fair trial before an independent tribunal.
Deputy McGrath has raised that with me many times in a previous guise and it is not relevant to this agreement between the EU and the US and the bilateral arrangements with Cuba, if any exist, in respect of those convicted in one or other state.
I also referred to Article 9 and Article 12.3, the transport issue.
Regarding Article 9, the limitations on its use are set out in the agreements. Much of it relates to data protection and the need to protect the use of this information. It is subject to the conditions of this agreement but also existing law on data protection in member states.
I just mentioned Shannon.
It is about Shannon, the issue of unscheduled landings, which might occur on occasion. The existing provisions apply on the type of information requested. If there is no unscheduled landing, these do not apply.
I also welcome the Minister to our meeting. Alluding to what the Minister said earlier, that all agreements are a compromise between different parties, taking into account the requirements of the US and the standards of the EU, can we be assured that there has been a modernisation of minds, rules and attitudes before this agreement was reached? Can we be assured that a balanced human rights regime will operate pertaining to the transfer of any prisoners from any member state to the US in any situation?
Article 4, the identification of bank accounts, is very serious. In a situation where there is conclusive evidence that bank accounts had been unlawfully operating, covertly and otherwise, would the country where these accounts are domiciled be given information and is there some system that allows this information to be given for security purposes? In turn, this member state could take the necessary action to deal with the situation.
Regarding Article 12.3, are the new technological, all-embracing proposals from the EU Commission on aviation mobility included in this agreement?
On extradition between this State and the US, there have been difficulties over the past number of years. This has been due to dual criminality and the question of whether there is correspondence between the offences with which the person is charged. The motivation behind this agreement is that, rather than having separate bilateral agreements with member states, the difference in treatment between member states in the EU and the US was considered after 11 September 2001. From that point of view, it is accepted that this is a good move.
I answered a question about bank information earlier. The net criterion on the passing of this information is whether it is proved that this is necessary in the investigation of a criminal offence.
If there is conclusive proof, is the country where the account is domiciled given information on the situation so that it can deal with it through its own laws if, for example, someone operating out of the UK has a bank account in Ireland?
It depends if they have the evidence but this measure applies more particularly to an offence created in the requesting state's territory.
Is the all-embracing EU proposal on aviation technology included in Article 12?
I am not sure what the Deputy is referring to.
There are proposals from the Commission to introduce all-embracing technology, which is somewhat invasive. It may be needed for security purposes and to ensure there is constant mobility in the international market, thus fulfilling the European ethos and in the interest of good global performance. Will that supersede this proposal or be included in it?
Passenger-related information is not included in this treaty.
How long will it be before the agreements are fully adopted? Article 9 of the extradition agreement provides that the requested state may temporarily surrender an individual to the requesting state for the purposes of prosecution. What safeguards are there for persons temporarily surrendered for the purpose of prosecution if prosecution does not happen or is unreasonably delayed? In such circumstances, what are the arrangements for persons to be returned to their country of origin?
My understanding is that in each case, the process would be subject to an agreement and understanding that prosecutions would take place as expeditiously as possible. These procedures will come into operation three months after the United States and the EU have notified each other that they have each complied with the necessary legal and constitutional procedures.
Is there any indication when that may be?
I expect it to be in several months, but it depends on how far the three remaining EU states, Belgium, Greece and Italy, have progressed.
In accordance with Standing Orders, the joint committee will report back to Dáil Éireann and Seanad Éireann to the effect that it has completed its consideration of the motion. Is that agreed? Agreed.