Judgment on Irish citizen facing terrorism charges could have “far reaching” consequences

By Ruaidhrí Giblin

A section of the High Court's judgment on the proposed surrender of Ali Charaf Damache to face international terrorism charges in America could have “far reaching” consequences for the prosecution of terrorism offences in Ireland, the Court of Appeal has been told.

Mr Damache (51), an Algerian-born Irish citizen, is currently awaiting trial in America on charges of conspiring to provide material support for terrorists and attempted identity theft to facilitate an act of international terrorism.

It is alleged that Mr Damache, AKA “theblackflag”, conspired with American woman Colleen LaRose, AKA “Jihad Jane”, and others to carry out terror attacks in Europe and Asia.

Ali Charaf Damache

In 2014, LaRose was jailed for conspiring with Mr Damache to try to kill Swedish artist Lars Vilks, who sparked an international controversy by depicting the Prophet Mohammed on the head of a dog.

Mr Damache, with a last address at High Street, Waterford, was involved in lengthy extradition proceedings brought by the State. However, the High Court refused to order his surrender holding that there were “substantial grounds for believing that Mr Damache will be at real risk of being subjected to inhumane and degrading treatment if extradited to the USA.”

Mr Damache was immediately released from custody but was subsequently arrested and extradited from Spain. He is now in prison in America awaiting trial.

The Court of Appeal heard today/yesterday(THURSAY) that a section of the High Court's judgment refusing Mr Damache's surrender appears to suggest that the Director of Public Prosecutions is obliged to consult other member states in deciding whether or not to prosecute terrorism offences in Ireland.

Counsel for the State, Remy Farrell SC, told the Court of Appeal today/yesterday(THURSDAY) that the High Court's judgment was of “immense importance” and it was not “immediately clear quite how far reaching” its significance and impact was. Mr Farrell said the State was not concerned with quashing the judgment but with its consequences.

In light of the judgment, any decision to prosecute, or not prosecute, terrorism offences in Ireland could be invalid if the DPP does not consult other member states in making its decision, counsel submitted.

Ali Charaf Damache leaving the High Court in 2013. Picture: Collins Courts

Mr Farrell said the definition of terrorism was deliberately broad. It captured a range of offences including murder, rape, aggravated burglary and hostage taking as long as there was an aspect of terrorism to the offence such as intimidation, subversion or destablisation etc.

It would have been easier to list the offences which could not possibly have a terrorism aspect to them, the court heard.

Similarly, Mr Farrell said the scope of “concurrent jurisdiction” was “very broad indeed”. There were member states who had jurisdiction to prosecute offences committed in any state and one "can't have broader than that”.

For example, Mr Farrell said a decision to prosecute murder in Ireland, which may have a terrorism aspect to it, would be invalid if the DPP had not consulted other member states.

In her judgment, Ms Justice Aileen Donnelly said she was of the view that section 6(9) of the Criminal Justice (Terrorism Offences) Act of 2005, when read in conjunction with Article 9, paragraph 2 of the Framework Decision on Combating Terrorism, “required the DPP to consider this issue of jurisdiction at the point at which she herself is considering prosecution”.

Ms Justice Donnelly said it was “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.”

She said “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.”.

Mr Farrell said the difficulty facing the State was that the argument which appears in the judgment was never actually made by anybody. It was referred to by counsel for the Irish Human Rights Commissioner, who had been an “Amicus Curiae” or friend of the court for Mr Damache's proceedings, but was never argued in court.

Mr Farrell said it was remarkable that such a "radical inference" could be drawn from a legal submission made in court. He said these were matters that had to be addressed on an evidential basis but an inference was drawn from a legal submission, which was unsatisfactory.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the Court of Appeal would reserve its judgment.

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