Supreme Court of Ireland Decisions

Judgment Title: Minister for Justice, Equality & Law Reform -v- Tobin

Neutral Citation: [2008] IESC 3

Supreme Court Record Number: 21, 22 & 36/07

High Court Record Number: 2005 69EXT

Date of Delivery: 25 February 2008

Court: Supreme Court

Between/

1. This appeal concerns the meaning of the word “fled” in the European Arrest Warrant Act, 2003. The Court has already pronounced its decision on 3rd July 2007. I here give the reasons for that decision.

2. The warrant concerns a quite appalling tragedy which occurred in the year 2000. The respondent caused the death of two small children while driving a motor car in Hungary. While his prosecution was pending, he left that country lawfully and regularly. He was later convicted and sentenced in his absence. Peart J held that he had not “fled” that jurisdiction within the meaning of section 10 of the European Arrest Warrant Act, 2003 and, for that reason, declined to make the order for his surrender. The appellant (whom I will call “the Minister”) has appealed against this decision.

3. Peart J decided a number of other points against the respondent, which he had raised by way of objection. There is a cross-appeal and a notice to vary. The Court decided to hear, in the first instance, the Minister’s appeal, since that concerns the single issue of whether the respondent had fled. This judgment deals with that issue.

The facts
4. 12th October 2005 Pest County Court, Budapest in the Republic of Hungary issued a European Arrest Warrant seeking the surrender of the respondent in respect of a sentence imposed on him for an offence of negligence causing death arising out of a road traffic accident.

5. The respondent was born in 1964. He is an Irish citizen and a chartered accountant. He is married and has two children. At the time of the tragic events giving rise to his prosecution, he was living in Hungary as part of his employment with a large Irish financial institution.

6. The European Arrest Warrant arises out of a fatal road traffic accident, which occurred when the respondent was driving a motor car on 9th April 2000. Two very small children, a brother and sister, lost their lives. The respondent, in his affidavit, says that his car lurched onto the pavement, that he applied the brake but that the car would not stop. He accepts that the car struck the two children, who were killed. He accepts that this was a terrible tragedy and he has expressed deep and sincere sympathy to the bereaved family.

7. The respondent engaged the services of a Hungarian lawyer to advise and assist him during the police investigation of the accident. There were severe language difficulties. The lawyer’s daughter acted as interpreter and translator at the police interviews. Those interviewed included the respondent, his wife and two Irish friends who had been in the car. It appears that their statements were translated into Hungarian by the daughter of the lawyer.

8. The respondent was permitted to return to Ireland with his family in August 2000, while the investigation was proceeding. His passport was returned to him at his request. The reasons given for the proposed visit to Ireland were that the respondent’s wife had been asked to be a bridesmaid at her sister's wedding and that he wished his own parents, who were getting on in years, to have the opportunity to meet his children since they could not easily come to Hungary. Pursuant to a provision of the Hungarian Criminal Code, he made a deposit of 500,000 HUF by way of bail. On 9th October 2000, he returned to Hungary and duly notified the Hungarian court. On 30th November 2000, he left Hungary permanently, as his term of service there had come to an end. It is clear from the legal materials provided by the Hungarian Authorities that his second and final departure from Hungary came within the scope of the approved arrangements.

9. Criminal proceedings were commenced against the respondent in Hungary on 11th September 2000. He was charged with “causing a fatal road traffic accident through negligence.” He says the terms of the charge were not received by his lawyers until 7th June 2001. As will appear later, the applicable provisions of the Criminal Code, of which the respondent had availed, permitted service of documents on lawyers.

10. The respondent did not attend his trial. He says that he had understood that the statements made at police interviews (and translated into Hungarian) would be admitted at the trial. He learned in April 2002 that there was a doubt about the admissibility of these documents, by reason of the relationship of the translator to his lawyer. He made a declaration at the Hungarian Consulate in Dublin that this fact had had no influence on the nature or content of the statements.

11. The trial took place in Hungary on 7th May 2002, in the voluntary and duly authorised absence of the respondent. The statements of the Irish witnesses were ruled inadmissible in their entirety pursuant to a provision of the Hungarian Code of Criminal Procedure. This was by reason of the lack of independence of the translator, as she was a daughter of the lawyer. The respondent was convicted and sentenced to three years imprisonment, banned from driving and fined.

12. It should be said that the judgment of the Hungarian court, insofar as it is available, is detailed and meticulous. The respondent has not suggested that the excluded evidence would have assisted his defence in any particular way. Furthermore, the arrangements into which the respondent entered permitted his trial to take place in his absence, with the further consequence that the judgment could not be set aside so as to enable a retrial to take place.

13. The respondent appealed unsuccessfully against his conviction, but the sentence was altered to one where he would be required to serve only half of the three years and then to be released on what is described in the translation of that decision as “ticket of leave.”

The High Court judgment
14. Section 10 of the Act of 2003, as amended by the Criminal Justice (Terrorism Offences) Act, 2005 provides that, “[w]here a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person,” who falls within one of the prescribed categories, subject to the Act and to the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender between Member States, he is to be arrested and surrendered to the issuing state.

15. It was common case, in the High Court, as it remains, that the only provision capable of applying to the respondent is paragraph (d), according to the lettering of the amended version of section 10. To be brought within the scope of that provision, the respondent must be shown to be a person:

“on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she—

(i) commenced serving that sentence, or

(ii) completed serving that sentence,…”

17. He then turned to the meaning of the word, “fled,” and held:

“In my view the plain and ordinary meaning of 'fled' cannot be regarded as the same as the plain and ordinary meaning of 'left'. The former has within it an intention to escape from or to evade something, such as in this case, justice. It is not so neutral as the word "left". One can leave for any or no reason whatsoever, but in ordinary usage, the word "fled" is used when there is a particular purpose in leaving, namely to avoid some consequence not desired.”

“It seems to me to do obvious and serious violence to the stated objective, as given effect to by section 10 of the 2003 Act as amended, if the section giving effect to this objective is extended to cover persons such as the respondent who did not "flee" within the meaning normally attributed to that word, and who left legitimately having availed of a procedure in place to deal with just such a departure, and on the basis that he could be represented by his lawyers and that his statements and those of his witnesses could be available to the Court.”

20. The Minister submits that the Framework decision, and hence the Act of 2003, were intended to replace existing extradition arrangements between Member States of the European Union. Peart J interpreted the word, “fled,” so that it would have the effect of creating a new exception. He also submits that the word “flee” is capable of a number of different meanings and that it does not exclude a person who left a country in the manner in which the respondent left Hungary. It can apply to a person who left or went away from the issuing Member State, thereby evading the sentence which was imposed upon him. The Minister contests the view of Peart J that it necessarily has any connotation of escape or evasion.

21. The respondent fully supports the reasoning of Peart J. He submits that he left the issuing state in a perfectly legal fashion, as permitted by a specified provision of the Hungarian Criminal Procedure, and then failed to return to Hungary after he had been convicted and sentenced in his absence. If the word is used in its natural and ordinary meaning, the respondent did not “flee” from the issuing state.

Conclusion
22. S. 10 of the Act of 2003 gives effect, in Irish law, to the general obligation to surrender made incumbent on Member States, by the Framework Decision. That section, as amended by the Criminal Justice (Terrorist Offences) Act, 2005, provides:

10.—Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—

(a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates,

(b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,

(c) who has been convicted of, but not yet sentenced in respect of, an offence to which the European arrest warrant relates, or

(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she—

(i) commenced serving that sentence, or

(ii) completed serving that sentence,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.

There are two components to this provision:

• That a sentence of imprisonment has been imposed;

• That the person in question “fled” the jurisdiction which imposed the sentence.

24. This Court has to ask itself, firstly, whether the respondent “fled” Hungary. If he did, then he should be surrendered. If he did not, the further question arises as to whether the principle of “conforming interpretation,” nonetheless, obliges the Irish courts to order his surrender. As already noted, Peart J considered that the sentence imposed, in order to come within paragraph (d), must have been imposed prior to the flight. I am not convinced that this is necessarily so. That paragraph may equally apply where the sentence has been imposed at the time the European Arrest Warrant is issued. However, I prefer not to express a concluded opinion. I will confine this part of the analysis to the meaning of the word, “fled.”

25. The respondent left Hungary, to use a neutral verb, before the sentence was imposed. The question is whether he “fled.”

26. The Court is asked to interpret a word used in an Irish statute. Peart J noted that the first recital to the Framework Decision cited the Tampere conclusions of the European Council of October 1999 as advocating, inter alia, that “the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced…” (emphasis added) . This led to him to conduct a careful linguistic comparison of the French, German and Italian texts of the same recital.

27. It seems to me, however, that the Court should confine itself to a consideration of the word, “fled” as it appears in the Act of 2003, as amended. I will explain my reasons later when discussing the obligation of “conforming interpretation.” Thus, the question is whether the respondent “fled” Hungary. Peart J thought that it would do “violence” to the language of the legislative text to extend it “to cover persons such as the respondent who did not "flee" within the meaning normally attributed to that word, and who left legitimately having availed of a procedure in place to deal with just such a departure………”

28. The regularity of the procedure whereby the respondent left Hungary is confirmed in several documents, notably the Arrest Warrant itself, which contains the following:

“Pursuant to Section 586, subsection (1) of Act XIX of 1998 on the Hungarian Criminal Code, “In cases where the accused lives abroad bail may be deposited upon his request, with permission of the prosecutor prior to submission of the indictment, and after it, with the permission of the court. In such a case the proceedings may take place in absentia.”

30. At the level of first impression, using the word as it is commonly understood, I am satisfied that the respondent did not “flee” Hungary when he sought permission to leave Hungary, secured the return of his passport for that purpose and put up a financial bond.

31. “Fleeing” necessarily implies escape, haste, evasion, the notion of movement away from a pursuer. Nothing in citations from the Oxford Dictionary suggests otherwise. The Shorter Oxford Dictionary on Historical Principles (Third Ed.) provides the following four meanings:

1. To run away from or as from danger; to take flight;

2. To withdraw hastily, take oneself off, go away….

3. To make one’s escape…;

4. To disappear, vanish…….

33. The respondent’s leaving of Hungary could not reasonably be described as “fleeing” or “flight,” in accordance with any generally understood meaning of the word. I agree with Peart J that to apply the term to the actions of the respondent in the present case would do violence to language.

34. It follows that the High Court was neither entitled nor bound, on the basis of a correct interpretation of the relevant section to order the surrender of the respondent.

The question then arises as to whether an over-riding obligation, arising from the principle of conforming interpretation, leads to a different result.

35. The provenance of the principle of “conforming interpretation” can be traced, in Community law, to 1984 (Case 14/83 Von Colson and Kamann [1984] ECR 1891). In Case C-105/03, Pupino, the Court of Justice adapted that principle to framework decisions adopted pursuant to the Treaty on European Union. The Court ruled that the principle was “binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union.” Thus, it stated:

“When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b) EU.”

37. The Court of Justice qualified the principle of conforming interpretation by stating that:

“ The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”

39. The object of the Framework Decision is simply stated in Article 1.2 of that instrument:

Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”

“The principle of conforming interpretation is limited, as the Court of Justice has pointed out in Pupino and other cases, to the extent that it is possible to give such an interpretation. It does not require a national court to interpret national legislation contra legem. If national legislation, having been interpreted as far as possible in conformity with community legislation to which it purports to give effect, but still falls short of what is required by the latter, a national Court must, as a general principle, apply that legislation as interpreted although there may be other consequences for a Member State which has failed to fully implement a Directive or Framework Decision.”

42. It follows that his surrender cannot be ordered. For these reasons, the appeal should be dismissed.