No. 2016, 194
Finlay Geoghegan J.
Peart J.
Hogan J.
BETWEEN/
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
RESPONDENT
JUDGMENT of the Court of Mr. Justice Gerard Hogan delivered on the 4th day of May 2016
1. This is an appeal taken by the respondent, Mr. Sliwa, against the decision of the High Court (Donnelly J.) delivered on 11th April 2016 whereby she granted consent to petitions of the Republic of Poland for criminal proceedings in respect of five named criminal complaints against him, pursuant to s. 22(7) of the European Arrest Warrant Act 2003 (“the 2003 Act”) (as amended): see Minister for Justice and Equality v. Sliwa [2016] IEHC 185. As will shortly be seen, this appeal presents a net point of interpretation concerning the rule of specialty in the context of s. 22 of the 2003 Act.
2. The background to this appeal is as follows: on 6th October, 2014, the High Court ordered the surrender of Mr. Sliwa in respect of four separate European arrest warrants (“EAWs”) to Poland. Two of those EAWs related to offences for which he was sought for prosecution, the other two EAWs were for the purpose of serving two separate sentences of six months in prison. Since his surrender to Poland, the High Court has received seven separate requests pursuant to s.22 of the 2003 Act emanating from judicial authorities in Poland seeking permission either to prosecute him for offences pre-dating his surrender, or, in two cases, either to impose a sentence following a criminal conviction or to execute a sentence which has already been imposed since his surrender for such offences.
3. The decision of Donnelly J. relates to five of the seven criminal complaints (or, to use the terminology employed by the Polish legal system, “petitions”): petitions 1, 2, 3, 5 and 6.
4. It is also important to stress that it emerged during the course of the hearing before this Court that the five requests from the Polish authorities under consideration in this appeal (i.e., petitions 1, 2, 3, 5 and 6) all concern applications which come within s. 22(7)(a) of the 2003 Act whereby the consent of the High Court to criminal prosecutions in Poland has been sought. The alleged offences consist of what we would understand to be fraud offences or offences relating to obtaining money through false pretences.
5. The situation in respect of petitions 4 and 7 is (or, at least, pending further clarification, may be) different in that it appears that the authorities in those cases have proceeded before the Polish courts in these two cases. It is, however, agreed that the steps take to date do not infringe Article 27 of the Framework Decision as construed by the Court of Justice in Case C-388/08 Leymann [2008] ECR I-8983. As these matters are not before this Court, we refrain from exercising any view in respect of these two petitions.
The rule of specialty
6. The necessity to obtain the permission of the High Court pursuant to s. 22 of the 2003 Act reflects the rule of specialty contained in Article 27 of the Council Framework Decision 2002/584/JHA on the European Arrest Warrant (2002)(O.J. 2000 L 190). The rule of specialty is one of long standing in the sphere of the extradition or surrender of offenders from one State to another. Earlier versions of the rule can be found in important international extradition agreements: see, e.g., Article 14 of the European Convention on Extradition 1957.
7. The rule itself seeks to give effect to the principle of full faith and mutuality inherent in the international extradition process by ensuring that if an offender is surrendered in respect of charge A, he cannot then be proceeded against within the requesting state in respect of charge B, save where the surrendering state consents. The rule may generally be said to provide a reassurance to the surrendering state that its extradition procedures will not be circumvented by the subsequent prosecution of the offender in respect of other charges in respect of which the surrendering state would not itself have been prepared to grant extradition.
8. It is true that the use of the term “rule” in this context is something of a misnomer since specialty simply accommodates understandable sovereignty concerns on the part of surrendering states. It thereby reflects long standing diplomatic practice quite independently of treaty agreement (or, in the special case of the European Union, national legislation giving effect to an otherwise binding Framework Decision). This practice is one which, as the High Court previously noted in The State (Sumers Jennings) v. Furlong [1966] I.R. 183, was never designed to confer individual rights. As Farrell and Hanrahan European Arrest Warrant in Ireland (Dublin, 2009) put it (at para. 14.03), the rule of specialty is:
“more appropriately regarded as a policy which informs a majority of extradition agreements rather than a rule as such. It should not be regarded as a general right which the requested person is entitled to invoke as deriving either from international law or domestic law but rather an exception to surrender that can only be considered in the specific terms of the statute or agreement that gives rise to it. The version of the rule which appears in the Framework Decision and the European Arrest Warrant Act 2003 is subject to a significant number of exceptions and a waiver procedure which can be invoked subsequent to surrender.”
9. Even though Article 31 of the Framework Decision expressly acknowledges that the new EAW procedure replaced the European Convention on Extradition as between the Member States of the Union, Article 27 reflects much of the earlier contents of the earlier rule of specialty contained in Article 14 of the 1957 Convention. Specifically, Article 27(3)(g) of the Framework Decision provides that the prohibition on prosecuting the offender in respect of offences other than those in respect of which he has been surrendered does not apply where “the executing judicial authority which surrendered the person give its consent in accordance with [Article 27(4)].”
10. In the present case Mr. Sliwa objected to consent being given pursuant to s.22 of the 2003 Act to his further prosecution in respect of the complaints referred to in the five petitions in Poland. He first submitted that the High Court was prohibited from giving consent pursuant to s.22(7) of the 2003 Act by virtue of ss22(2) to (6) and a breach or a prospective breach of those provisions by Poland.
11. In the High Court Mr. Sliwa also objected to such consent being given in circumstances where the contended that his fundamental rights were (or would be) infringed by reason of alleged shortcomings within the Polish prison system. Section 22(8) of the 2003 Act provides that the High Court is precluded from giving consent if the “offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.” Part 3 of the 2003 Act deals with prohibitions on surrender, such as the requirement of correspondence and minimum gravity. Part 3 also includes s. 37 which precludes the making of such an order where the surrender would be incompatible with either the ECHR or the Constitution. The Supreme Court has confirmed that s. 37 of the 2003 Act may be invoked as a ground for objecting to the grant of consent under s. 22(7): see Minister for Justice and Law Reform v. Strzelecki [2015] IESC 15.
12. So far as the latter submission was concerned, while Donnelly J. acknowledged that the conditions to be found in Polish prisoners were sub-optimal, she did not consider that they were such as would reach the level of ECHR incompatibility. This objection was not pursued on appeal to this Court and I mention it only for completeness. It is not necessary to address this issue any further.
The proper construction of s. 22
13. The proper construction of s. 22 of the 2003 Act in general - and, specifically, s. 22(7) - was, however, at the heart of the present appeal. Section 22 gives statutory effect to the rule of specialty contained in Article 27 of the Framework Decision. It is, however, critical to stress that it is manifest from the structure and the language used in this section that the Oireachtas has drawn a clear distinction between the application of the rule of specialty in the case of the initial application for surrender on the one hand and its application to a case where the alleged offender has already been surrendered on the other.
14. Section 22(1) of the 2003 Act carefully defines the word “offence” in the specialty context by making it clear that it refers to a pre-surrender offence not otherwise covered by the European Arrest Warrant. Section 22(2) then addresses the situation of where it is proposed to surrender the alleged offender. This sub-section provides that the High Court “shall refuse surrender” if it is satisfied that:
“(a) the law of the issuing state does not provide that a person who was surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and
(b) the person will be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.”
15. Subsection 3 provides for certain presumptions in favour of the law and practice of the requesting state. Subsections 4, 5 and 6 provides for specific situations where surrender is not to be refused.
16. Section 22(7) then deals with the position of a person who has already been surrendered to the requested state. It provides:
“The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to -
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.”
17. For completeness, the provisions of s. 22(8) of the 2003 Act should also be noted:
“The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.”
18. The essential objection in the present case is that the High Court should have declined to make an order under s. 22(7) by reason of the fact that, viewed by reference to the circumstances of the present case, it had been shown that Polish law and practice did not comply with the requirements of s. 22(2) and that this was a factor which ought to have been taken into account when considering whether to make an order under s. 22(7). It was thus contended that if the High Court was now considering whether to make a surrender order in respect of Mr. Sliwa under s. 22(2), it could not do so because Polish law did not provide that a person who was surrendered to it pursuant to a European arrest warrant “shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order” (s. 22(2)(a)) and because s.22(2)(b) makes it clear that no such order will be made where the requesting state has already “proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.” As Poland has already “proceeded against” Mr. Sliwa in respect of other offences to the point of sentence, the argument advanced by Mr. Lynn S.C., counsel for the respondent, is that High Court would then be precluded from making the surrender order by reason of these provisions of s. 22(2), so that by extension the Court should likewise decline to make an order under s. 22(7).
19. In her judgment Donnelly J. rejected the argument that s. 22(7) should be read by reference to the earlier provisions of s. 22(2), saying:
“In the view of the Court, s. 22(7) provides in its plain and ordinary meaning that the Court has the power to consent to the request in each or any of the situations that may apply under the subsection. The restriction on that power is, on the plain and ordinary meaning of the subsection, only limited by subsection 8.”
20. We entirely agree with Donnelly J. that the Oireachtas has made a clear distinction between the position of the person facing surrender on the one hand (s. 22(2)) and the person already surrendered (s. 22(7)) on the other. The Oireachtas has accordingly elected to provide for prescriptive rules set out in s.22(2) in the case of the application of the rule of specialty to the position of the offender first awaiting surrender. These prescriptive rules have not been applied in the case of the person who has already been surrendered. The only prohibition against giving consent specified by the Oireachtas is that contained in s.22(8). There is, accordingly, simply no basis as a matter of statutory interpretation in seeking to apply the special rules in s.22(2) applicable to one situation (i.e., the person awaiting surrender) to another (i.e., the person who has already been surrendered).
21. In reaching this conclusion we have not overlooked the submission made on behalf of Mr Sliwa that in Strzelecki Denham C.J. had said that a request for consent pursuant to s.22(7) “is in essence for consent for the surrender to cover the additional offences” and, accordingly, an application for consent should be treated as if it was an application for surrender. In Strzelecki the Chief Justice was simply considering the inclusion of s.37 in the prohibition in s.22(8). She was not, however, addressing the separate question of the application of the prohibition in s.22(2) to a request for consent pursuant to s.22(7). The judgment does not accordingly support the submission that an application post -surrender for consent to prosecution, conviction or execution of a custodial sentence should in all respects be treated as if it was an application for surrender.
22. It is true that s. 22(7) is permissive and insofar as Donnelly J. may be considered to have suggested in her judgment that the High Court can only refuse surrender in respect of an application under this sub-section by reference to the prohibition contained in s. 22(8), we would respectfully disagree. Indeed, this comment may not have been intended as she was considering the only objections which had been advanced to the High Court in respect of the question of consent. It is, however, unnecessary to consider the circumstances in which the High Court might be justified in refusing to make an order under s. 22(7) independently of s. 22(8). It is sufficient to say that there could, in principle, be no objection to the making of such an order by the High Court in the circumstances of the present case, since by the very act of making this request the Polish authorities have fully - and properly - respected the rule of specialty as contained in the 2003 Act and there is no contention that there has been any breach of the corresponding provisions of Article 27 of the Framework Decision so far as these complaints or petitions are concerned.
23. In these circumstances it is unnecessary to offer any view on the conclusions of the trial judge (at para. 57 of her judgment) to the effect that the words “proceeded against” in s. 22(2) means proceeded against “where there is a deprivation of liberty involved.” This is a matter which must await a determination in an appeal where s. 22(2) is applicable.
Conclusions
24. In these circumstances the High Court was entitled to give its consent to the Polish authorities to the five petitions in respect of criminal prosecutions against Mr. Sliwa pursuant to s. 22(7) of the 2003 Act. We would accordingly dismiss the appeal.
