Rape suspect to be surrendered to Sweden following failed objections to pre-trial detention laws



A man has failed in his attempt to avoid surrender to Sweden for criminal prosecution on a single count of rape. He had argued that Swedish pre-trial detention laws placed him at risk of a breach of his fundamental rights.

W.B.’s surrender was sought under a European arrest warrant, following allegations of a rape in 2012. The man, who had been working in Sweden at the time, had since returned to Ireland.

He had cooperated with the investigation, while maintaining that all sexual contact with the complainant was consensual.

However, he objected to his surrender to Sweden on the grounds that despite his previous good character and full cooperation with the investigation, there would be no prospect of bail in the event of surrender.

It was submitted that the absence of any realistic possibility of bail amounts, in the circumstances, to such a fundamental breach of article 40.4.1 of the Constitution and of article 5 of the European Convention on Human Rights that the respondent’s surrender ought to be refused.

Evidence was given that a detention order had already been made against W.B., and that under Swedish law a person suspected of serious crimes such as rape would be remanded in custody unless it was obvious that detention was unnecessary.

When the Swedish issuing judicial authority was asked to comment on this procedure, they noted that Swedish law allowed for factors to be weighed when determining whether to detain, including the detriment of detention to the suspect, and potentially allowed for a system of release subject to restrictions.

It was further noted that such a weighing exercise had been made in W.B.’s case, and that it would be uncommon in Sweden for a rape suspect to be released from custody pre-trial. However, it was possible to appeal detention decisions, which had not been done so in W.B.’s case.

Counsel for W.B. argued that this amounted to a presumption against liberty, which amounted to a breach of fundamental rights.

He relied on a fact sheet by Fair Trials International, which stated that “Sweden has been criticized for its excessive use of pre-trial detention”.

However, the High Court Judge Ms Justice Donnelly noted that this did not make clear who had criticized Sweden, and further observed that: “There is no evidence of criticism from reputable sources such as International Human Rights Treaty monitoring bodies, Human Rights NGOs such as Amnesty International or Human Rights Watch, or U.S. State Department Reports.”

Delivering the judgment, Justice Donnelly cited Minister for Justice Equality and Law Reform v. Brennan 3 I.R. 732, which contains the relevant guidelines on whether the surrender of a respondent would amount to a violation of fundamental rights, and has been reaffirmed in Minister for Justice and Equality v. Buckley IESC 87.

Following those cases, she found that the issue was not whether the Swedish criminal procedure rules on pre-trial release would be found unconstitutional in this jurisdiction, but whether there is a clearly established and fundamental defect in a system of pre-trial detention in Sweden.

Citing Labita v. Italy (6th April, 2000, App. No. 26772/95, Reports 2000-IV), Kudla v. Poland (26th October, 2000, App. No. 30210/96, Reports 2000-XI) and Ilijkov v. Bulgaria (26th July, 2001, App. No. 33977/96), counsel for W.B. argued that presumptions against bail and reverse-onus practices in bail applications were contrary to Article 5 and the right to freedom.

However, Justice Donnelly found that the High Court must accord to Sweden a presumption that it would comply with its human rights obligations under article 6 of the Treaty of the European Union and theEuropean Convention on Human Rights.

The Swedish system, which means that where there is probable cause that a person is suspected of a serious crime such as rape, he/she shall remain in custody unless it is obvious that detention is unnecessary, also requires a weighing up of the detriment to the suspect and other interests as against the detention of the person.

As Justice Donnelly observed, “There is nothing in the case law of the ECtHR that demonstrates that such a legal regime is, of itself, contrary to Article 5.”

Further, she found that “the risk of absconding or of interference with the investigation/evidence form the basis of the decision making process on behalf of a Swedish court considering pre-trial release. The reference to detention on probable cause of having committed a serious offence is therefore directed towards the assessment of those genuine requirements of public interest. Furthermore, the weighing up of interests is an assessment of the sufficiency requirement required under Article 5 ECHR”.

She concluded that: “I do not find evidence of a presumption against release in the Swedish Criminal Code in the sense that is outlawed under Article 5 of the ECHR.” As a result, W.B. had not shown that he was at risk of being subjected to a flagrant denial of justice.

Counsel had also asked the Court to assess the initial Swedish detention order, which appeared to be based in part on a determination that W.B. might interfere with witnesses. It was submitted that this finding was without foundation and no evidential basis was laid.

However, citing Minister for Justice and Equality v. Marjasz IEHC 233 and Minister for Justice v. Rostas 1 I.L.R.M. 1, Justice Donnelly found that “this Court is bound by the presumption that the court hearing was fair and respected the respondent’s rights. Furthermore, that was a decision of first instance and carried with it a right of appeal. That right of appeal has not been exercised.”

It was not therefore appropriate for the Court to second guess the decision of the Swedish court.

Finally, counsel for W.B. argued that due to W.B. having a young child, it was disproportionate not to let him remain in Ireland pending the outcome of the investigation.

However, the Judge noted that this was a criminal prosecution of a very serious offence, and that the public interest in having rape suspects surrendered to face the charges, outweighed the suspect’s right to family life.

In light of these findings, the Judge made an order surrendering W.B. to Sweden.

  • by Rachel Killean for Irish Legal News