Qs & As
Judicial Inquiry into ‘Removal’ of Peter Uricek
* ‘Let us wait and see how long the police inquiry into the SoopramanienKistnen case will take, which will hopefully be expedited’
A considerable fuss has been created around the recent “extraction” of a Slovak national and his handing over to waiting Slovak authorities despite a restraining order from a Supreme Court judge. Official communiques from the PMO or reports in the press have muddled waters to the extent that the Office of the DPP, upon referral by the judge, has instituted a judicial inquiry by a district magistrate to hear all parties, conduct any investigations and report on the matter. Lex provides some insight over the legal questions at issue.
The latest development in this matter is that the Attorney General has obtained last Wednesday a stay order of the judicial inquiry. In the absence of all the facts contained in the motion of the Attorney General at the time of writing, but presumably based on the argument that the DPP would not have in law the power to order the inquiry, we will examine more comprehensively the issues involved next week with more facts forthcoming in the next few days.
* It would seem the matter relating to the “lawful removal”, as qualified by the PMO’s communique, dated 28 April 2022, of Peter Uricek who was the object of an Interpol Red Notice and wanted for prosecution in the Slovak Republic for criminal activities in that country, will not be laid to rest any time soon in light of the DPP’s decision to request the District Magistrate of Port Louis ‘South’ to carry out an “inquiry and examination” into his ‘removal’. Why is it so important to have this inquiry?
Simply because there has been a blatant flouting of the rule of law that is supposed to exist in our country. The flouting resides in the contempt shown for the Order of Judge Maghooa and for the removal of the foreign national from the jurisdiction of the District Court where extradition proceedings were ongoing. The government seems to be basking in the comfort that the removal was lawful. But the Order of Judge Maghooa was also to prohibit removal as well as deportation and extradition pending the extradition proceedings.
* There have been comments about the fact that the DPP relied on Section 64 of the District and Intermediate Courts (Criminal Jurisdiction) Act, to set up the judicial inquiry, rather than the law on which he relied for the Kistnen inquiry. Why does this matter?
A judicial inquiry is an inquiry where there is no accused. It is held in cases where a person has committed suicide; has been killed by another, or by an animal or by machinery or an accident; has died under circumstances raising a reasonable suspicion that some person has committed an offence; or has died in prison or while in custody of the Police.
Section 64 provides that the Director of Public Prosecutions may also require a Magistrate to carry out an inquiry and examination into any offence. I insist any offence.
* How far can this judicial inquiry go, and what are its limits, if any?
A judicial inquiry is fact finding exercise wherein the inquiring magistrate has a latitude to ask questions and order further investigations or production of evidence in the form of documents and summon witnesses and visit any spots that may be relevant to the inquiry. A judicial inquiry can only be ordered in the cases provided for by law. Other inquiries are conducted by the police.
* The DPP’s decision to call for a judicial inquiry has been taken following the Judge’s order, made on 28 April 2022, “for any action he (the DPP) deems appropriate”. Was the DPP duty-bound to act on the Judge’s order, or could he have decided to let the matter rest?
No. The DPP must have studied the facts and circumstances surrounding the referral of the Order by the judge as well as the facts and circumstances surrounding the removal of the foreign national and must have concluded that there may be a possible offence, hence the directing of the inquiry.
* The Judge’s order came on the same day the Slovak National was ‘removed’ from the Mauritian territory, and two days prior to the issue of the PMO’s communique on 30 April 2022. Is it possible that the Judge could have taken a different course of action had he taken cognizance of the explanations of the PMO?
No. The lawyers of the government should have gone to the judge any time, day or night, and place any new facts before him and move for a rescission of the Order. It is as simple as that. Once the interim order would have been discharged or rescinded, the next step would have been to put a stop to the extradition proceedings and deport the foreign national. As it is, the Order of the judge was flouted and the jurisdiction of the magistrate hearing the extradition proceedings was also flouted.
* What other options were available to the Judge in this matter? Could he have ordered the Commissioner of Police to submit explanations about the ‘removal’ of the Slovak national?
Of course. He could have immediately summoned the Commissioner of Police, the Director of Civil Aviation, the Passport and Immigration Officer for explanations and justifications for breaching his Order.
* On the other hand, would the decision of the DPP, who did take cognizance of the PMO’s communique, to call for a judicial inquiry suggest that he would also not be satisfied with the PMO’s explanations?
We should not speculate on whether the DPP was satisfied or not with the explanations. An independent DPP is and should be impervious to political statements or justifications. His duty is to look at the facts brought to his attention, study them and take decisions. The DPP’s decisions cannot be dictated or motivated by statements made by politicians whoever they may be.
* Once the inquiry is over and the case file is submitted to the DPP, what action can be taken against any party or institution that may have gone against the interim order issued by the judge against the ‘removal’ of Peter Uricek from Mauritian territory?
We cannot read in the mind of the DPP. He will decide after the magistrate submits to himthe conclusionsof the inquiry.
* On the basis of the facts that have come in the public domain so far – from press reports but especially from the PMO’s communique or even the DPP’s -, without prejudging the findings of the judicial inquiry, what could be the outcome of such an inquiry in such circumstances?
It will be for the magistrate to decide on the facts placed before him/her and not on rumours or political statements or the views or conclusions of members of the legal profession or of the public.
* SoopramanienKistnen died in mysterious circumstances in October 2020. A first investigation apparently ascribed the death to suicide. Public and media pressure kept the issue alive, and the DPP instituted a judicial inquiry into this case, and this exercise has been completed.But the truth has to this day notemerged. What happens next after the inquiry shall have submitted its findings?
The matter relating to SoopramanienKistnen has been referred to the police for investigation in light of the conclusions of the magistrate. Let us wait and see how long the police inquiry will take, which will hopefully be expedited.
As for the matter relating to the Slovak national, we cannot speculate on the outcome of the judicial inquiry. The DPP will decide in light of the findings of the magistrate.
Mauritius Times ePaper Friday 13 May 2022
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