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Cite as: [2015] IECA 69

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Judgment

Title:	Minister for Justice and Equality -v- Palonka
Neutral Citation:	[2015] IECA 69
Court of Appeal Record Number:	2014 60
Date of Delivery:	18/05/2015
Court:	Court of Appeal
Composition of Court:	Finlay Geoghegan J., Peart J., Mahon J.
Judgment by:	Peart J. Link
Judgment by:	Finlay Geoghegan J. Link
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 69

Finlay Geoghegan J.
Peart J.
Mahon J.

60/2014

IN THE MATTER OF

THE EUROPEAN ARREST WARRANT ACTS 2003 AS AMENDED

BETWEEN:

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

SLAWOMIR PALONKA

APPELLANT

Judgment of Ms. Justice Finlay Geoghegan delivered on the 18th day of May 2015

1. I agree with the judgment to be delivered by Mr. Justice Peart Link and wish to add some comments of my own in relation to the question of interpretation raised by the questions certified by the trial judge (Edwards J.) in the order made on the 20th November, 2014, for this Court’s determination:

“In light of the correlation between sections 16(1)(c) and section 45 of the European Arrest Warrant Act, 2003, as amended, and having regard to the form of the European Arrest Warrant as provided for in the Annex to the Framework Decision, as amended by Council Framework Decision 2009/299/JHA, and as set out in the Table to section 45 of the 2003 Act, as amended, is an Order for surrender under section 16(1) permitted in circumstances where the issuing judicial authority has purported to indicate the applicability of point 3.2 of section (d) of the European arrest warrant but has not provided any information at point no. 4 of the said section (d) where the Respondent has not raised any issue concerning the correctness of the matter certified at point 3.2?”

2. On the 4th November, 2014, the trial judge had made an order pursuant to s. 16 of the European Arrest Warrant Act 2003, (as amended) (the Act of 2003) for the surrender of the appellant pursuant to a European Arrest Warrant issued by the Republic of Poland dated the 6th November, 2012. The reasons for the making of the order are set out in the written judgment delivered by the trial judge on the 4th November, 2014. As appears therefrom, the appellant was not present before the court at the hearing resulting in the sentence in respect of which the European Arrest Warrant issued. The issuing judicial authority from which the Annex to the European Arrest issued had ticked the box equivalent to point 3.2 in the form of warrant in the Annex to the Framework Decision, but had not provided any information at point 4.

3. The issue in controversy in the High Court in such circumstances was as to whether the High Court was precluded by s. 16(1) of the Act of 2003 as amended, from making an order for the surrender of the appellant.

4. The trial judge determined that he was not so precluded. Following a consideration of the statutory provisions referred to below and the Framework Decision, the trial judge accepted submissions made on behalf of the Minister and concluded that s. 16(1)(c) and s. 45 of the Act of 2003 as amended, do not oblige an issuing judicial authority to provide information at point 4 of point (d) of the form of warrant in the Annex to the Framework Decision as set out in the table to s. 45 of the Act of 2003. Further that on the facts of this application as the appellant had not raised any issue concerning the correctness of the matters certified at the paragraph corresponding to para. 3.2, in the said form of warrant that the paragraph corresponding 2.4 was redundant and no supplementary information was required in the circumstances of the case.

5. The numbering used by the issuing judicial authority in Poland differed from that in the form of warrant in the Annex to the Framework Decision and the trial judge determined that such irregularity represented a defect in a non substantial detail and that no injustice would be caused to the respondent by forgiving it. He made such determinations pursuant to s. 45C of the Act of 2003 and there is no appeal from that determination. This judgment uses the numbering in the Annex in the form of warrant to the Framework Decision as set out in the table to s. 45.

6. The submissions made on behalf of the parties on appeal are set out in the judgment of Peart J. and I do not propose repeating same. I have taken them fully into account in the conclusions which I have reached.

Conclusions
7. The question which was certified by the trial judge and requires determination by this Court is dependent upon the proper construction of ss. 16(1)(c) and 45, including its Table, of the European Arrest Warrant Act 2003, as amended by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012. Section 16(1)(e) is also relevant. These provide respectively:

“16.—(1) Where a person does not consent to his or her surrender to the issuing state the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—

(a) … ;

(b) … ;

(c) the European arrest warrant states, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012);

(d) … and

(e) the surrender of the person is not prohibited by Part 3.”

“45. A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued, unless the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA, as set out in the table to this section.

TABLE

(d) Indicate if the person appeared in person at the trial

resulting in the decision:

1. ❒ Yes, the person appeared in person at the trial resulting in the decision.

2. ❒ No, the person did not appear in person at the trial resulting in the decision.

3. If you have ticked the box under point 2, please confirm the existence of one of the following:

❒ 3.1a. the person was summoned in person on . . . (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial;

❒ 3.1b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial;

❒ 3.2. being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

❒ 3.3. the person was served with the decision on . . . (day/month/year) and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

❒ the person expressly stated that he or she does not contest this decision,

❒ the person did not request a retrial or appeal within the applicable time frame;

❒ 3.4. the person was not personally served with the decision, but

— the person will be personally served with this decision without delay after the surrender, and

— when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

— the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be . . . days.

4. If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about how the relevant condition has been met:

...........................................................................................................

........................................................................................................”.

8. The above sections are amongst the sections of the Act of 2003, as amended by the Act of 2012 which had been enacted to give effect to the Council Framework Decisions adopted under the Treaty on European Union insofar as is relevant last amended by Council Framework Decision 2009/299/JHA of 26th February, 2009. The principles to be applied in interpreting s. 16(1) and s. 45 are not in dispute. The starting point is the well established principle that Acts of the Oireachtas should be construed according to the intention expressed in the Acts themselves giving to the words used their ordinary and natural sense. Howard v. Commissioners of Public Works [1994] 1 I.R. 101 per Blayney J. at p. 151 and Denham J. at p. 162, where she stated:

“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words.”

9. As the sections in question were to implement the Framework Decisions to this must be added the principle of conforming interpretation with the limitations determined by the Supreme Court for this jurisdiction consistent with the judgment of the Court of Justice of the European Communities in Pupino (Case C-105/03) [2005] E.C.R. I-05285.

10. In The Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 IR 148 at 156, in the Supreme Court Murray C.J. put it thus:

“When applying and interpreting national provisions giving effect to a framework decision the courts ‘must do so as far as possible in this light of the wording and purpose of the Framework Decision in order to attain the result which it pursues’ (see Criminal proceedings against

Pupino

(Case C-105/03) [2005] E.C.R. I-05285). 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.”

11. In Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518, Fennelly J. at p. 547, explained it as follows:

“. . . These courts are bound to apply provisions of Acts of the Oireachtas. The framework decision does not have direct effect. Where a provision of an Act of the Oireachtas conflicts directly with a provision of a framework decision, this court must give preference to the former. To do otherwise would, to cite the language of the Court of Justice in Criminal Proceedings against

Pupino

(Case C-105/03) [2006] QB 83, be

contra legem

.”

12. Apart from point (d) in the form of the Annex to the European Arrest Warrant, specified by Article 2.3 of Framework Decision 2009/299/JHA and set out in the Table to s. 45 of the Act of 2003 above, the only relevant provision of the Framework Decisions relied upon in the submission was Article 4a of Framework Decision 2002/584/JHA as inserted by Article 2.1 of the Framework Decision 2009/299/JHA. Insofar as relevant to this Article 4a provides:

“4a.

Decisions rendered following a trial at which the person did not appear in person

1. The executing judicial authority may also refuse to execute the European Arrest Warrant issued for the purpose of executing custodial sentence or a detention order if the person did not appeal in person at the trial resulting in the decision, unless the European Arrest Warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

(a) . or

(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

(d) . . .”

13. The trial judge in his judgment, as already stated, agreed with submissions made by counsel for the Minister. He appears to have accepted a submission that there were two interpretations of the relevant provisions of the Act of 2003, as amended, which were open. I respectfully disagree with that view. Sections 16(1)(c) and 45, including its Table, when construed in accordance with the above principles are only capable of one meaning and do not, in the my view, create any uncertainty.

14. The first question is the meaning to be attributed to s. 16(1)(c) insofar as it requires that the European Arrest Warrant state “where appropriate” the matters required by s. 45. I consider that this simply means that when, on the facts, s. 45 applies to the application then the European Arrest Warrant must state the matters required by that section. Section 45 in its terms prohibits surrender under the Act if the person concerned “did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European Arrest Warrant was issued unless . . .”.

15. To put it another way if the European Arrest Warrant discloses that the person, whose surrender is sought did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European Arrest Warrant was issued then s. 16(1)(c) does not permit a surrender unless the European Arrest Warrant indicates the matters required by s. 45.

16. This interpretation, in my view, is the only interpretation permitted by the words used by the Oireachtas in s. 16(1)(c) and s. 45 and is consistent with and confirmed by s. 16(1)(e) of the Act of 2003 as amended. As appears, this is a further and distinct condition which must be met in accordance with the proviso in s. 16(1). A person may only be surrendered provided that “the surrender of the person is not prohibited by Part 3”. Section 45 of the 2003 Act falls within Part 3 of the Act. Hence s.16(1)(e) as amended also prohibits the surrender of a person to whom s.45 applies i.e. who has not appeared in person at the proceedings resulting in the sentence or detention order in respect of which the European Arrest Warrant was issued, unless there is compliance with s.45 i.e. the European Arrest Warrant indicates the matters required by the section. The absence of the words “where appropriate” in s. 16(1)(e) in my judgment precludes any other construction of section 16(1)(c).

17. It is perhaps relevant to note that there is a similar absolute prohibition against the Court surrendering a person in s. 15(1)(d) of the Act of 2003, as amended, even where the person concerned consents to surrender.

18. The above construction of s.16 (1)(c) is also consistent with the relevant provision in the Framework Decision namely, Article 4a as amended. As appears it expressly permits the Member States to provide that an executing judicial authority may refuse to execute the European Arrest Warrant issued if the person did not appear in person at the trial resulting in the decision unless the European Arrest Warrant states certain matters.

19. The second question is what s. 45 of the Act of 2003 requires the European arrest warrant to state where the person concerned did not appear at the relevant proceedings in the issuing state. Starting with s. 45 itself, it expressly prohibits the surrender unless “the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by the Council Framework Decision 2009/299/JHA, as set out in the Table” to the section. By the wording used in s. 45 the Oireachtas have clearly decided that the European arrest warrant must contain the matters required by points 2, 3 and 4 of the point (d) in the form of warrant set out in the Table.

20. This leads to the final question of construction as to what those points require to be included in the form of warrant set out in the Table. It must be recalled that this is a form of warrant specified in the Framework Decisions and to be used by all Member States. The wording of the Annex is in the form of directions to the relevant authorities completing the form. As put by counsel for the appellant it uses in part polite diplomatic language. The question for this Court is whether or not point 4 of point (d) contains a mandatory or permissive requirement where the issuing authority has ticked box 3.2 as was done in this instance (albeit by reference to different numbers which the trial judge considered to be a technicality he could overlook pursuant to s. 45C of the Act of 2003 and against which there was no appeal).

21. As appears in the Table set out above, point (d) commences with the direction to the person completing the form “Indicate if the person appeared in person at the trial resulting in the decision:”, obviously a mandatory requirement which was not in dispute. Point 2 then contains the relevant box which indicates if ticked “no, the person did not appear in person at the trial resulting in the decision”.

22. Point 3 then gives the next direction “If you have ticked the box under point 2, please confirm the existence of one of the following:”. This again can only be construed as a mandatory requirement to confirm the existence of one of the circumstances which are set out as four alternatives Nos. 3.1a, 3.1b, 3.2 and 3.3. They follow in substance the matters referred to in Article 4a.1.(a),(b),(c) and (d) of Framework Decision 2002/584/JHA as amended.

23. Point 4 then states “if you have ticked the box under point 3.1b, 3.2 and 3.3 above, please provide information about how the relevant condition has been met:”. Point 4 in its terms only applies if one of the three specified options was confirmed under point 3 and not 3.1a. The phrase “please provide information” rather than “indicate” or “please confirm the existence of one of”, being the phrases used in the preceding paragraphs cannot in my view be construed as indicating that if as in this instance 3.2 was the box ticked that the issuing authority was not required in the sense of being obliged to provide the information about how the relevant condition has been met. Point 4 itself indicates when the information about how the relevant condition has been met must be provided; it is when the issuing authority has ticked the box under one of points 3.1b, 3.2 or 3.3. If the issuing authority had ticked the box under 3.1a then no information would have to be provided under point 4.

24. I have considered the submission that the provision of the information is not mandatory in reliance upon Article 4a of the Framework Decision as amended. Whilst Article 4a.1 does not expressly in terms require the information required at point 4 of point (d) in the Annex to the European Arrest Warrant as it does in sub-paragraphs (a),(b),(c) and (d) in relation to point 3 nevertheless it does not preclude a requirement by a Member State to provide the information. Also it requires by its opening paragraph that the European arrest warrant state that “the person in accordance with further procedural requirements defined in the national law of the issuing Member State” came within one of the circumstances specified sub-paragraphs (a),(b),(c) and (d) i.e. those set out in point 3 of point (d) in the Annex.

25. Furthermore the Council in the very same Article 2 of the Framework Decision 2009/299/JHA in which it amended Article 4a also specified the form of Annex to the European arrest warrant which is now set out in the Table to section 45 of the Act of 2003. There is nothing in the form of Annex when construed in accordance with Article 4a which requires this Court (even if it were permissible to do so and having regard to the fact that it is now incorporated in s. 45) to construe point 4 of point (d) in the annex as being only permissive and not mandatory in circumstances where a box in point 3.1b, 3.2 or 3.3 has been ticked.

26. The trial judge in his earlier decision in Minister for Justice and Equality v. Pawel Surma [2013] IEHC 618 indicated a clear purpose for the information which is required at point 4 of point (d) of the annex to the European Arrest Warrant. Section 15(1)(d) of the Act also specifies that this is information which must be available to the court in Ireland even in circumstances in which a person may have consented to his surrender. The provision of the information about how a ticked condition at points 3.1b, 3.2 or 3.3 has been met is an obligation imposed on an issuing judicial authority which predates and is independent of any issue being raised by a respondent to a European arrest warrant application.

27. Accordingly I have concluded that point 4 of point (d) of the Annex to the European arrest warrant contains a mandatory requirement to provide information about how the condition was met where, as on the facts herein, the issuing authority has ticked the equivalent to box 3.2. Hence s. 45 required the European arrest warrant issued by the Republic of Poland in respect of the appellant to state the information required by point 4 of point (d) in the Annex to the European arrest warrant. As it did not do so the High Court was precluded by ss. 16(1)(c) and (e) from making an order for surrender.

28. I agree that the Court should allow the appeal, answer the question contained in the schedule attached to the High Court order of the 20th November, 2014, in the negative and vacate the order for surrender dated the 4th November, 2014. It also follows that the Court must now discharge the respondent.

Judgment of Mr. Justice Peart delivered on the 18th day of May 2015
1. On 4th November 2014, the High Court (Edwards J.) granted an application for the surrender of the appellant to Poland on foot of a European Arrest Warrant, pursuant to the provisions of section 16(1) of the European Arrest Warrant Act, 2003, as amended ("the Act").

2. Before he could make that order, the trial judge had to be satisfied that the provisions of section 16(1) of the Act were satisfied, and in particular for the purposes of the present appeal, the condition at (d) thereof that "the European arrest warrant states ... the matters required by section 45 (as inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012)" since it is not disputed that while the appellant was present for his trial at the District Court in Nowys on the 30th June 2003 when only a fine was imposed in respect of the offence stated in the warrant, he was not present when that purely monetary penalty was altered to one of 10 months imprisonment at the Circuit Court in Poznan on the 29th January 2004. It is the latter order which has resulted in the order for his detention, and which therefore brings section 45 of the Act into play.

3. Section 16 (1) of the Act of 2003 provides, as amended:

(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

(b) the European arrest warrant, or a true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,

(c) the European arrest warrant states, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012),

(d) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

(e) the surrender of the person is not prohibited by Part 3.”

4. The appellant argued in the High Court that the warrant did not state the matters required to be stated by section 45, and that accordingly surrender could not be ordered. However, the trial judge was satisfied that he was not precluded by the terms of section 16(1) (c) and/or section 45 of the Act from ordering the surrender of the appellant, and made such an order.

5. Being dissatisfied with the trial judge's decision, the appellant made an application under section 16(11) of the Act for a certificate that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to this Court. Such certificate was granted by order dated 20th November 2014 in which the trial judge certified the following question for this Court's determination:

"In the light of the correlation between sections 16(1)(c) and section 45 of the European Arrest Warrant Act, 2003, as amended, and having regard to the form of the European Arrest Warrant as provided for in the Annex to the Framework Decision, as amended by Council Framework Decision 2009/299/JHA, and as set out in the Table to section 45 of the 2003 Act, as amended, is an Order for surrender under section 16(1) permitted in circumstances where the issuing judicial authority has purported to indicate the applicability of point 3.2 of section (d) of the European arrest warrant but has not provided any information at point no. 4 of the said section (d) where the Respondent has not raised any issue concerning the correctness of the matter certified at point 3.2?"

6. As stated already, the High Court on an application for surrender under section 16 of the Act, may make such an order provided a number of conditions precedent are satisfied, including that the warrant states “where appropriate” matters required by section 45. In the present case there has been some dispute between the parties as to the meaning to be given in the section to the words “where appropriate”. This will be addressed later in this judgment.

7. Section 45 provides:

"45. A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued, unless the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision [2002/584/JHA] as amended by Council Framework Decision 2009/299/JHA, as set out in the Table to this section" .

The "Table" contains a number of alternative statements which the judicial authority in the issuing state is required to box-tick as appropriate to the facts of the particular case. The first such box is ticked where the person whose surrender is sought was present at the trial which resulted in the decision under which his surrender is sought. If that box is ticked, nothing further arises under section 45 as the person was not dealt with in his absence. Where the box is ticked to indicate that the person did not appear in person at the trial resulting in the decision relied upon for surrender, then there are a number of alternative scenarios contemplated in the Table, and the appropriate box must be ticked to indicate which scenario applies in the particular case. In the present case, the issuing judicial authority ticked box 3.2 which states:

"3.2: being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial."

8. None of the other parts of the Table are relevant to this appeal, save paragraph 4 which, importantly for this case, states: "If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about how the relevant condition has been met:" and space is provided for such information to be inserted.

However, in the present case this space provided for information to be inserted into paragraph 4 has been left empty. No information has been provided as to how condition 3.2 has been satisfied in this case. The Court is left only with the facts stated in 3.2 which follow the template provided for in the Table contained in section 45. If paragraph 4 had been completed, the Court - and the appellant of course - would know what facts are relied upon for the issuing judicial authority's statement in effect that the appellant had engaged a lawyer to represent him at the Circuit Court in Poznan, and that the lawyer did so. The appellant would be in a position to decide whether there were grounds for disputing the accuracy of what was stated.

9. It would not be difficult, for example, for the issuing judicial authority to state the means by which the appellant is considered to have become aware of the scheduled date, and to state the name of the lawyer who was engaged to appear, and perhaps to go further and state that the court record has noted that the particular lawyer appeared before the court in Poznan and represented the appellant on the date in question. None of that information has been provided, and it is this lacuna which leads the appellant to now contend that the failure to provide this required information means that section 45 of the Act has not been complied with, and accordingly that the trial judge ought not to have been satisfied that the provisions of section 16(1)(c) of the Act were satisfied, and that he therefore had no jurisdiction to grant the application for his surrender to the authorities in Poland.

10. Having referred to the submissions made to him on behalf of the appellant in relation to the mandatory language used in section 45 of the Act, and the condition precedent in section 16(1)(c) that the warrant states the matters "required by section 45", the trial judge stated in his judgment that the issue is "whether supplementary information is required to be provided in Part (d) in the paragraph corresponding with paragraph 4 of the s. 45 Table, where an issuing judicial authority has sought to rely on any of the paragraphs corresponding with paragraphs 3.1b, 3.2 or 3.3 of the s. 45 Table".

11. He summarised the submissions of the Minister as follows:

"In that regard, counsel for the applicant makes the point that although s. 45 uses the mandatory language "shall not", the imperative thereby created is then qualified by the reference to "the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision" (this Court's emphasis). Similarly, the condition precedent to surrender created by s. 16(1)(c) is also qualified. What is required for a valid surrender is that "the European arrest warrant states, where appropriate, the matters required by section 45” (this Court's emphasis). Counsel for the applicant points to the permissive language used in paragraph 4 of the s. 45 Table i.e. "If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about how the relevant condition has been met: ..." and suggests that the provision of supplementary information is not mandatory."

12. The trial judge then stated that he agreed with the submissions made by the Minister, stating that “in circumstances where two interpretations of the relevant provisions are open, it is necessary to consider not just the narrow wording of the two provisions themselves, but also to consider their place within the scheme of the legislation viewed as a whole”. He then referred to the fact that he had previously, in Minister for Justice and Equality v. Pawel Surma [2013] IEHC 618, examined section 45 of the Act and had looked in detail at its purpose in terms of transposing Council Framework Decision 2009/299/JHA, and giving effect to the substantial body of jurisprudence that has developed from the European Court of Human Rights concerning the right to be present in person guaranteed by Article 6 (3) of the European Convention on Human Rights, and trials in absentia. He then refers to a lengthy passage from that judgment as follows:

“In reality the new s.45 makes provision for a system of judicial certification (not unlike that which can be invoked under article 2 (2) of the Framework Decision 2002/584 to obviate the need for demonstration of double criminality in respect of certain categories of offence) and in that regard it appears to be firmly anchored to the principle of mutual recognition. Pursuant to the principle of mutual recognition, the executing judicial authority is obliged to surrender once the issuing judicial authority has indicated the matters required in points 2, 3 and 4 of point (d), and save in exceptional circumstances, the executing judicial authority would not be entitled to look behind that which has been certified. However, in this Court’s view it could not be the case that all competence on the part of an executing judicial authority is ousted by a purported certification in the manner provided for, because point 4 of point (d) requires the provision of amplifying information to support a bald certification in any of the alternative scenarios contemplated under points 3.1b, 3.2 or 3.3 of point (d).

The scheme clearly contemplates that the executing judicial authority must have some entitlement to review the assessment of the issuing judicial authority in those scenarios, otherwise there is no logical reason why amplifying information would be required to be provided at point 4. It is, in this Court’s judgement, clearly envisaged that a person facing surrender should be able to challenge the information provided by the issuing judicial authority in support of its certification. That said, respect for the principle of mutual recognition would also demand that where a certification has been provided, it will require the adduction of cogent evidence suggesting that that which has been certified could not in fact be the case before the executing judicial authority would be justified in seeking to look behind what has been certified. However, at the end of the day the executing judicial authority retains competence to assess whether the proceedings conducted in absentia in the issuing member state complied with the standards mandated under the E.C.H.R., and in doing so, it must have due regard to the jurisprudence of the E.Ct.H.R.”

13. Having quoted that passage in his judgment in the present case, he then concluded as follows:

“Approaching the matter in that way, an issuing judicial authority is not obliged to provide amplifying information at the place in Part (d) corresponding with paragraph 4 of the s. 45 Table. However, if the issuing judicial authority fails to do so, and the respondent puts forward cogent evidence tending to contradict that which has been baldly certified at either paragraphs 3.1b, 3.2 or 3.3, the executing Court will have no alternative but to resolve the conflict in the respondent’s favour and refuse to surrender the respondent notwithstanding the matter baldly certified at either paragraphs 3.1b, 3.2 or 3.3.

In the present case, however, the respondent has not put forward any evidence at all, not to mind cogent evidence, tending to suggest that that which has been certified in Part (d) of the warrant at the paragraph corresponding with paragraph 3.1b of the s. 45 Table is incorrect. He has put forward nothing on affidavit to suggest that the matter certified has been incorrectly certified. Nor does he point to any substantive information contained within the warrant itself that on any view of it could suggest that that might be the case.

The respondent’s objection is an entirely technical one. He says simply that because the paragraph corresponding with paragraph 4 of the s. 45 Table was left blank by the issuing judicial authority he should not be surrendered. I cannot agree with them.

In the Court’s view the European arrest warrant does, in the circumstances of this case, indicate the matters “required” by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision. Because the respondent has not raised any issue concerning the correctness of the matter certified at the paragraph corresponding with paragraph 3.1B of the s. 45 Table, the paragraph corresponding with paragraph 4 of the s. 45 Table is redundant. No supplementary information is required in the circumstances of the case. If the respondent had sought to challenge the correctness of the matter certified at the paragraph corresponding with paragraph 3.1b of the s. 45 Table, the Court might well have taken the view that the provision of supplementary or amplifying information at paragraph 4 was indeed “required”. However, the respondent has not sought to challenge the correctness of the matter certified”.

14. The trial judge went on to conclude that where an issuing judicial authority fails to complete point 4 of point (d), this was not fatal unless the respondent adduces some cogent evidence which tends to contradict what has been certified in points 3.1b, 3.2 or 3.3 in the Table provided in s. 45, in which case the Court would be required to decide the controversy in the respondent’s favour despite the certification.

15. Counsel for the appellant has submitted that in simple terms the mandatory requirements of section 45 have not been met, since one of the mandatory requirements is that where, as in this case, point 3.2 is relied upon, the issuing judicial authority must complete point (d) in order to provide information to the executing judicial authority as to how point 3.2 has been satisfied. In other words, some information is required as to the basis for the issuing judicial authority certifying that the respondent was (i) aware of the scheduled hearing, and (ii) a mandate was given by him to a lawyer to defend him at the trial, and (iii) he was in fact defended by that lawyer at the trial. I have already set out by way of example only the sort of information that might be given in such circumstances in point (d).

16. Counsel for the appellant has also submitted that the Oireachtas has made it clear in the unambiguous language used in section 45, that unless information is provided in point (d) where reliance is placed on a certification under, inter alia, point 3.2 of the Table, the High Court may not make the order for surrender.

17. Counsel for the appellant has also referred to the fact that section 45 is itself within Part 3 of the Act, and that section 16(1) provides at subsection (1)(d) that in addition to the provisions of section 45 having to be satisfied before any surrender order may be made, the High Court must be satisfied that “the surrender of the person is not prohibited by Part 3”. Section 45 is within Part 3 of the Act, and counsel describes this as being a ‘double-lock protection’ against surrender where section 45 has not been fully complied with.

18. As to the trial judge’s conclusion that absent any cogent evidence being adduced to contradict what has been certified in point 3.2 point 4 is “redundant”, counsel has submitted that the trial judge has erred given the clear words of the section which make the provision of the information in point 4 mandatory. He points out also that the warrant is a document which is prepared before the person who is the subject of the warrant has been arrested. The contents of the warrant are specified in the Framework Decision, and must be prepared by the issuing judicial authority in a manner which conforms to the requirements of the Framework Decision. He submits that in such circumstances it cannot be correct that the executing judicial authority may waive a non-compliance with the requirements of the Framework Decision, which has as one of its stated purposes the achievement of consistency throughout the European Union as to how persons sentenced in absentia should be dealt with when their surrender is sought on foot of a European arrest warrant.

19. Counsel for the Minister submits that despite the absence of any information in point 4 of the Table, the Court should interpret section 45 in the light of the Framework Decision - in other words should give it a conforming interpretation as enunciated in Case of Pupino (Case C-105/03) Pupino [2005] ECR 1-05285. Counsel suggests that such an interpretation allows this Court to depart from an otherwise literal interpretation contended for by the respondent, so as to apply section 45 in a way that achieves the aims and objectives of the Framework Decision, and without being contra legem.

20. Counsel for the Minister has referred to Recital 6 of the 2009 Framework Decision which sets out the objectives of the Framework Decision as follows:

“(6) The provisions of this Framework Decision amending other Framework Decisions set conditions under which the recognition and execution of the decision rendered following a trial at which the person concerned did not appear in person should not be refused. These are alternative conditions; when one of the conditions are satisfied, the issuing authority, by completing the corresponding section of the European arrest warrant or of the relevant certificate under the other Framework Decisions, gives the assurance that the requirements have been or will be met, which should be sufficient for the purpose of the execution of the decision on the basis of the principle of mutual recognition.”

21. Counsel has referred also to Article 2 of the 2009 Framework Decision which inserts a new Article 4a into the 2002 Framework Decision:

“1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State: ……… (b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial”.

22. Counsel has referred to the fact that Article 4a (as inserted into the 2002 Framework Decision) makes no requirement that any further information be provided in relation to what is stated at (b) above and for which space is provided at point 4 of the Table or Questionnaire later referred to in new Article 4a. In other words, it is submitted that the certification by the Polish judicial authority in the present case at paragraph D.1c of the European arrest warrant is sufficient in order to comply with what is contained within the main body of Article 4a, and that the provision of the additional information sought at point 4 is not necessary to achieve the objective of the Framework Decision, and is redundant unless an issue is raised as to the veracity of the statement that the person was aware of the trial and was represented by a legal counsellor.

23. Counsel for the Minister also submits that there is some ambiguity as to the absolute requirement for the provision of additional information at point 4 where, as in this case, point 3.2 has been indicated by the issuing judicial authority as the means of fulfilling the conditionality of Article 4a. In this regard emphasis is placed on the words “where appropriate” in section 16 (1)(c) of the Act. It has been submitted that point 4 of the Table which is contained in section 45 should not be read in isolation and that the words “matters required by points 2, 3 and 4 of point (d)” which appear in section 45 must be read in conjunction with the reference to “where appropriate” in section 16 (1)(c). Paragraphs 9 and 10 above have already set forth how the trial judge agreed with this submission, and stated that it was necessary to consider these words in the context of the overall scheme of the legislation.

24. Counsel for the Minister has submitted that the condition precedent to surrender which is contained in section 16 (1) of the Act is that the warrant must state the matters required by section 45, but only “where appropriate”, and that, accordingly, this necessarily implies a margin for discretion on the part of the issuing judicial authority as to the circumstances in which it is “appropriate” to state the additional matters.

25. The Minister further submits that while it would generally be appropriate to provide further information as to how the condition was satisfied in relation to condition 3.1a or 3.1b, where the means of summoning the person would be appropriately provided, and also in relation to condition 3.3 where the matters concern the date of service of the decision, and the date and manner of the person stating that he does not contest the decision, or did not request a retrial in time, the same cannot be said in relation to condition 3.2 since it contains the actual statement of the factual scenario that the person, being aware of a scheduled trial, had given a mandate to a legal counsellor to represent, and was represented at the trial. This, in the Minister’s submission, is a “closed statement requiring no further information in order to satisfy the requirement of Article 4a (1) (b) of the amended 2002 Framework Decision”. It is submitted that nothing further is required in order to describe how the relevant condition has been met, notwithstanding that point 4 provides a space in the warrant for the provision of such information. Emphasis is placed on the words “where appropriate” in section 16 (1) (c) of the Act. It is submitted on behalf of the Minister that the fact or facts asserted or certified in the warrant at paragraph D.1c render it not appropriate for the provision of any further information at point 4 of the Table. Counsel submits that the trial judge was correct in describing the language used as “permissive” rather than mandatory in relation to the provision of additional information under point 4.

Conclusions:
26. It is undoubtedly correct that when interpreting the Act of 2003, in the face of some ambiguity between what is stated in the Framework Decision and what is provided for in the Act, a literal interpretation of the Act must yield to an interpretation which conforms to the stated aims and objectives of the Framework Decision, but only so far as the latter conforming interpretation is not contra legem - see Case of Pupino (Case C-105/03); [2005] ECR 1-05285. Where such a conforming interpretation leads to a meaning which is contrary to the clear meaning of the national law, the former must yield to the latter, since it is ‘contra legem’.

27. The trial judge concluded in the present case that the information which might be provided in point 4 of the Table was redundant information, and that no further information beyond that contained in point 3.2 was required in order to fulfil the objectives of the Framework Decision. He did on the other hand acknowledge in his judgment in Surma, and upon which he placed reliance in this case, that “the scheme clearly contemplates that the executing judicial authority must have some entitlement to review the assessment of the issuing judicial authority in those scenarios, otherwise there is no logical reason why amplifying information would be required to be provided at point 4, and that “it was clearly envisaged that a person facing surrender should be able to challenge the information provided by the issuing judicial authority in support of its certification”. However he went on to place the onus on the respondent to first adduce cogent evidence to contradict the certification before the Court could decide that the information certified was not factual, and go behind the certification.

28. However, it is important to note one particular amendment to section 16 (1) (e) of the Act which was effected by the Act of 2012. As originally enacted, that subsection made provision for a refusal of surrender where “(e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto)” (emphasis added). The Act of 2012, however, has deleted the underlined words, so that now a surrender may be made where, inter alia, surrender is not prohibited by Part 3 of the Act. The reference to the Framework Decision has been removed. It will be recalled also that, as earlier stated, section 45 is within Part 3. Prior to this amendment, an interpretation of section 16(1)(c) and/or (e) in line with the objectives of the Framework Decision might not have been considered contra legem where the Framework Decision itself was referenced in section 16(1)(e) of the Act. It is to be noted also that the very same deletion has been effected in section 10 of the Act which in its original form provided that “where a judicial authority in an issuing state issues a European arrest warrant in respect of a person ……… 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” (emphasis added). By virtue of the Act of 2012, however, the underlined words have been removed from section 10. This makes it very clear that when considering whether surrender is prohibited, the Court is required to do so by reference to the provisions of the Act alone, and insofar as there may be some conflict between the provisions of the Act on a literal interpretation, and an interpretation which conforms to the objectives of the Framework Decision, the latter interpretation would be contra legem.

29. The provisions of section 45 are very clear. Under section 16(1)(c) of the Act surrender is prohibited unless the European arrest warrant states, where appropriate, the matters required to be stated by section 45. One of those matters is the information to be provided at point 4 where, in this case, point 3.2 of the Table is relied upon. That information is absent. It has not been provided. The warrant therefore does not indicate the matter required by point 4 of point (d) of the Table. Section 16(1)(c) of the Act is therefore not satisfied. To give the section a purposive interpretation in the light of the stated objectives and provisions of the Framework Decision would in this case fly in the face of clear national legislation.

30. In so far as the trial judge relied upon the words “where appropriate” in section 16(1) (c) of the Act as diluting the mandatory nature of the requirement to provide the point 4 information where point 3.2 has been indicated in the Table, I respectfully cannot agree that such a meaning can be reasonably attributed to those two words in the section. Rather, I consider that those words mean simply that on a section 16 application for a surrender order the warrant needs to state the matters required by section 45 in a case where it is appropriate to do so, namely in a case where a trial in absentia has occurred in the issuing state. The words “where appropriate” should not be read as meaning that the Court might be satisfied that the requirement to comply with the requirement in point 4 of (d) of the Table is redundant or optional, or that there is some discretion to overlook a non-compliance with the clearly stated requirement in section 45. To so interpret the legislation would be to ignore the plain and ordinary meaning of the words used by the Oireachtas to express its intention. The section does not permit any derogation or discretion in relation to compliance with section 45, or any part of it. It is stated in mandatory and clear terms.

31. I am also satisfied that there is no proper basis for considering that a failure to comply with the direction in point 4 to provide information as to how the condition in point 3.2 is fulfilled, comes into play for the Court’s consideration only where the respondent raises an issue based on cogent evidence to contradict the certification in point 3.2.

32. It must be recalled that these surrender applications are ‘sui generis’ in nature. They are regarded as inquisitorial rather than adversarial proceedings. It is the Court itself which inquires into the correctness or otherwise of the application for surrender, and whether all the requirements are met. A number of judgments have made this clear. In Attorney General v. Parke [2004] IESC 100, albeit a case under the Extradition Act, 1965 and not a European arrest warrant, Murray CJ (as he then was) stated:

“The burden of proof of facts which may rest on the applicant in these proceedings is not that of a criminal trial. I hasten to add that the learned High Court Judge did not approach this matter on such a basis and it is just that I consider it appropriate at this point to distinguish between extradition proceedings and other forms of proceedings, criminal and civil. An extradition proceeding pursuant to the relevant Acts has its own special features which in a certain sense makes it sui generis.”

Later in the same judgement, he stated:

“The role of the requested State, indeed its duty, is to give effect to a lawful request from a requesting State, once it is determined that the request fulfils the criteria laid down by the relevant legislation …. The responsibility for bringing a person named in the warrant before the High Court clearly rests with the authorities in the State. Once that is done the task in determining whether all legal requirements for the making of an Order pursuant to section 47 [Extradition Act, 1965] are fulfilled rests with the High Court Judge. That is an inherently inquisitorial function”.

33. Applications under the European Arrest Warrant Act, 2003, as amended, are no different in nature. They are sui generis and inquisitorial in nature as opposed to adversarial. The executing judicial authority must be satisfied that the requirements of the Act are fulfilled by the warrant which has been forwarded by the issuing judicial authority, and it does this independently of the parties to the application, albeit with the assistance of submissions made by one or both parties. In such circumstances, it is hard to see how the onus can be placed upon a respondent to raise a matter in relation to non-compliance with the requirements of the Act before the Court would be obliged to consider for itself whether the requirements of the Act have been met.

34. The Framework Decision, including as amended, is very specific as to the form which a European arrest warrant must take. It provides a specimen form, and this has been replicated in the Annex to the Act here. The issuing judicial authority is required to complete the warrant in accordance with the specimen provided in the Framework Decision, otherwise it is not a European arrest warrant - see the definition of a European arrest warrant contained in section 2 (1) of the Act. There is nothing in either the Act, or indeed the Framework Decision, which would permit a substantial deviation or variation from that prescribed form. The executing judicial authority (the High Court) is obliged to ensure that there has been compliance with the Act before it may make a surrender order.

35. Only in the case of some insubstantial defect or omission, or some technical failure to comply with a provision of the Act, and where no injustice would be caused to the respondent, may the Court overlook such defect, omission or failure under the provisions of section 45C of the Act.

36. The trial judge described the respondent’s objection as “an entirely technical one”, and disagreed with his submission that because the information required to be provided at point 4 of the Table was not provided he should not be surrendered. If by so describing the respondent’s objection the trial judge was indicating that it was an objection of an insubstantial nature and therefore one covered by the provisions of section 45C of the Act, I respectfully do not agree. The trial judge does not specifically refer to section 45C, but it would permit him to overlook the objection if in truth the absence of information could be regarded as being in respect of “a non-substantial detail” causing no injustice, or that the failure does not affect the merits of the application. Section 45C provides:

“For the avoidance of doubt, an application for surrender under section 16 shall not be refused if the Court is satisfied that no injustice would be caused to the person even if -

(a) there is a defect in, or an omission of, any non-substantial detail in the European arrest warrant or any accompanying document grounding the application,

(b) there is a variance between any such document and the evidence adduced on the part of the applicant at the hearing of the application, so long as the Court is satisfied that the variance is explained by the evidence, or

(c) there has been a technical failure to comply with a provision of the Act, so long as the Court is satisfied that the failure does not impinge on the merits of the application.”

37. I could not agree that the absence of the information required to be provided in point 4 of the Table is of an insubstantial nature that has no potential to cause an injustice. The trial judge in his own judgment in Surma rightly stated, as already set forth above, that “it could not be the case that all competence on the part of the executing judicial authority is ousted by a purported certification in the manner provided for, because point 4 of point (d) requires the provision of amplifying information to support a bald certification in any of the alternative scenarios contemplated under points 3.1b, 3.2 or 3.3 of point (d)”, and he was in my view correct also to go on to state that “the scheme clearly contemplates that the executing judicial authority must have some entitlement to review the assessment of the issuing judicial authority in those scenarios, otherwise there is no logical reason why amplifying information would be required to be provided at point 4”, and also that it was “clearly envisaged that a person facing surrender should be able to challenge the information provided by the issuing judicial authority in support of its certification”.

38. In my view, there is no onus upon a respondent to raise by cogent evidence an objection or contradiction in relation to the issuing judicial authority’s certification before the executing judicial authority should concern itself with the failure by the issuing judicial authority to complete the warrant at point 4(d) where point 3.2 is relied upon. I respectfully agree with the statements of the trial judge as set forth in the preceding paragraph. Where the issuing judicial authority has indicated by ticking the appropriate box in the Table that it is relying upon point 3.2, it is required to amplify that certification by the provision of information in the space provided in point 4. If it fails to comply with that requirement, the executing judicial authority cannot properly fulfil its statutory function. Neither, for his own purposes, can the respondent question the basis of the certification, as that basis has not been made apparent as required. It is reasonable in such circumstances that the issuing judicial authority should provide some detail as to the basis on which it certifies those facts, and, as previously stated in this judgment, it is a requirement, one would think, that is easily fulfilled on the part of the issuing judicial authority. The failure to provide this information is not an insubstantial failure or omission, since it inhibits the executing judicial authority from properly performing its task; and from a fair procedures point of view, it inhibits the requested person from asserting a focused contradiction to the facts so certified, or raising some issue in relation to it.

39. In these circumstances, I would answer the question contained in the schedule attached to the trial judge’s order dated 20th of November 2014 in the negative, and in those circumstances allow the appeal, vacate the order for surrender dated 4th November 2014, and discharge the respondent.

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