By Dana Seetahal
July 18, 2010 – guardian.co.tt
In an Advice apparently solicited by attorneys for Steve Ferguson and Ishwar Galbaransingh, former president Ellis Clarke, an eminent attorney-at-law, proferred the opinion that the case for T&T being the “forum conveniens” to try the accused men is lucid and “compelling.” This is not the first time that it has been argued in respect of an extradition matter that local trial for people accused of similar offences in both the US and T&T should be preferred. The point was taken in extradition proceedings in relation to some of the men locally accused of killing Balram Maharaj, a US citizen, and in respect of whom the US had sought extradition for offences involving hostage taking. The accused were eventually extradited.
This term has been held by the House of Lords to mean “more convenient, that is to say, preferable, for securing the ends of justice.” In the Canada arguments on this basis are referred to as the “Cotroni” analysis following a 1989 case of United States of America v Cotroni, where the US sought the extradition of one Cotroni from Canada. Since T&T’s law on extradition is based on similar legislation in Canada it is useful to consider how that has been interpreted. It is settled that a Cotroni analysis can be determined at any time prior to surrender. The law is clear that it is for the accused in an extradition case to satisfy the court that there is another forum that is more convenient.
Since the decision whether or not to surrender a fugitive lies with the Attorney General the person sought has a right to make submissions to him with respect to any matter relevant to his decision to surrender the fugitive [to the State requesting the extradition]. The AG is precluded from surrendering the person if the surrender would be unjust or oppressive having regard to all the relevant circumstances. As clarified in the 2006 case of US v Prudenza, before surrendering a person for extradition the relevant minister must conduct a “Cotroni assessment” to determine whether it would be unjust and oppressive to extradite him.
In that case, the accused had argued that the Minister had misapplied Cotroni in ordering the surrender. The Court held that the Minister’s view that the American prosecution would be “more effective and reliable” was an application of the proper test. Sir Ellis argues that any AG applying “the law to the facts” in the Ferguson-Galbaransingh case must find that T&T is the proper forum in which to try these men.
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