Monday, August 15, 2005

Harney digs a deep hole for McDowell

Vincent Browne:

The vigour and relentlessness with which Tánaiste Mary Harney digs holes for herself is impressive, but what a cavern she has created for Minister for Justice Michael McDowell when he returns from his holidays in Australia!

One way or another, she wants the Colombia Three behind bars for a very long time, either here or back in Colombia.

Neither the facts nor legal constraints may get in the way.

The facts are these. The Colombia Three were charged, convicted and sentenced for using false passports in Colombia. James Monaghan and Martin McCauley used false British passports, while Niall Connolly used a false Irish passport.

There is no evidence that they used false passports other than in the circumstances that gave rise to their conviction in Colombia. They may well have used other false passports to get themselves back to Ireland, but there is no evidence of that.

One way or another, there is no evidence that either Monaghan or McCauley broke any Irish law regarding passports.

So how could they be arrested and charged here for passport offences?

In the case of Connolly, there is no evidence that he committed any crime in relation to an Irish passport, other than the crime for which he was convicted and sentenced, for which he served a term of imprisonment in Colombia.

Is it being suggested that he be charged, convicted and sentenced for the same offence, that he be punished twice for the same thing?

I don't think the Irish Supreme Court would buy that one.

On the terrorist training charge, it is true that they were convicted on this charge by a Colombian court, that they absconded from the Colombian jurisdiction to avoid serving the 17-year sentences that were imposed, and that the Colombian authorities want them returned.

But the question is: was that conviction fair? Was it arrived at in accordance with rules of justice we could stand over?

Were proper legal procedures applied?

The men were found not guilty by the judge who heard all the evidence, assessed the testimonies and reliability of the various witnesses and entertained all the legal submissions from the parties in the case.

The evidence against the men was threefold:

forensic evidence of traces of explosive substances on the men's belongings immediately after they were arrested, having flown from the Farc-controlled zone in Colombia

the evidence of a witness who said he saw the three men training in January 2001

the evidence of a second witness who said he saw the men training Farc operatives on various dates in late 2000 and early 2001.

The forensic evidence was given by a ‘consultant' at the US embassy, who was the first person contacted by the Colombian military on the arrest of the men.

He conducted two tests. The first found traces of explosives and cocaine on the men's belongings; the second found traces of only explosives.

This man did not show up to give evidence at the men's trial. Colombian forensic experts who tested the men's belongings immediately after the American did so found no traces of explosives.

An English forensic expert who gave evidence for the defence described the American's evidence as “rubbish'‘.

The American had failed to calibrate properly the forensic equipment he was using, and simply did not have the knowledge or expertise for the tests he purported to conduct.

So no go on that front.

As for the witness who saw the men training Farc operatives in the use of explosives in January 2001, there was also a problem there.

Connolly was able to show that he was in Cuba in January 2001.While there, on January 17, he attended a dinner in Havana hosted by the first secretary of the Irish embassy in Mexico, Sheila Murphy.

Also at that dinner were three Irish parliamentarians: Jim O'Keeffe TD, the Fine Gael justice spokesman; Clare Fine Gael senator Madeleine Taylor-Quinn and former Fianna Fail TD Ben Briscoe.

Monaghan was able to show that on all the dates specified by the other witness he was in either Dublin or Belfast.

He had video footage to prove that. In one instance, he even had video footage of a seminar - as it happened, on Colombia - attended by two Irish women who had lived in Colombia, and one of whose sons had been murdered by Farc.

There was some discussion on Farc; no one expressed any sympathy for the organisation.

Subsequently, questions arose about the date of this video, and there were suggestions that it had been tampered with to disguise the date.

But in the course of the videoed discussion, a person referred to that day's newspaper and cited a particular article, again on Colombia, which anchored the date of the video conclusively.

So no go with either of the two witnesses.

The judge, having heard all the evidence, observed the witnesses and heard the submissions, found the men not guilty on the terrorist training charges.

Not only that, but he was so unimpressed with the evidence of the two witnesses that he ordered an inquiry into whether they had committed perjury.

By our standards of justice, that is enough. Once a person has been tried and acquitted by a competent court, that is it, over and done with. But not in Colombia, or the mind of Mary Harney.

The case was appealed to a three-judge court. The three judges consulted the transcripts of the original trial.

They heard no witnesses or submissions, and were in no position to evaluate the credibility of any witnesses or follow through with questions of their own to the witnesses.

On the basis of their private deliberations, they concluded not just that the men were guilty, but that this was a certainty. The certainty test is required in Colombian law for acquittals to be overturned.

So certain were the judges that one of them said he was not certain at all and that the original acquittal should stand.

The two other judges insisted that the witnesses who the trial judge thought might be perjurers had to be believed, and the discrepancies in their evidence could be explained by the fact that they had lived outside “civilisation'‘ for so long that they did not know what day it was.

On the basis of their belief that the witnesses were credible, the judges said that the contention of the Colombia Three that they were in the Farc area simply to observe the peace process was simply not credible.

Of course, the men's contention that they were in Colombia to observe the peace process and smell the roses is hard to believe. I, for one, can't believe it. I suspect they were there for other purposes. But unsubstantiated suspicions have no place in our legal system.

Defendants are convicted on the basis of evidence, not of suspicion, and in this case there is no reliable evidence to substantiate the terrorist training charges. Neither do the procedures of the appeal process of Colombia command any respect or trust.

For a court to overturn an acquittal without having heard any evidence or submissions or examined the key witnesses is a travesty of fair judicial procedures.

Harney's insistence that the verdict of this court should now be validated by the Irish legal system is the cavernous hole that awaits the Minister for Justice when he returns from his summer frolics.

McDowell's already low estimation of Harney's political skills will not have been improved by her performance over this.

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