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The Minister for Justice & Equality v Fassih (Unapproved) [2021] IECA 159 (27 May 2021)
URL: http://www.bailii.org/ie/cases/IECA/2021/2021IECA159.html
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[2021] IECA 159
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UNAPPROVED
FOR ELECTRONIC DELIVERY
THE COURT OF APPEAL
Birmingham P.
Edwards J.
Gearty J.
Neutral Citation Number: [2021] IECA 159
Record No: 2019 No 262 EXT
COA: 2020/162
IN THE MATTER OF AN APPLICATION PURSUANT TO S. 22(7) OF
THE EUROPEAN ARREST WARRANT ACT, 2003, AS SUBSTITUTED BY S. 80 OF
THE CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT, 2005
THE MINISTER FOR JUSTICE AND EQUALITY
Respondent
-V-
NAOUFAL FASSIH
Appellant
JUDGMENT of the Court delivered by Mr Justice Edwards on the 27th of May, 2021.
Background to the appeal
1.
The appellant is a person who was previously surrendered by this State to the
kingdom of the Netherlands for prosecution in respect of various offences on foot of three
European arrest warrants, dated the 21
st
of April, 2016, the 14
th
of July, 2016, and the 26
th
of
September, 2016, respectively, ("the 2016 EAWs"). The executing judicial authority that
made these surrender orders was the High Court (Donnelly J.). The offences to which the
2016 EAWs related involved money laundering offences, assault and attempted murder. The
appellant was convicted following a trial upon his return to the Netherlands and was
sentenced in April 2018 to a total of eighteen years' imprisonment.
2.
Subsequently, in August 2019, a request was received by the Irish High Court for
waiver of the rule of specialty and consent to the further criminal prosecution or execution of
a custodial sentence or detention order in respect of the appellant in the kingdom of the
Netherlands for the further offence specified in a document described as a "new additional
European arrest warrant", and dated the 18
th
of July, 2019, which accompanied the said
request. Provision is made for the making of such a request in Article 27(4) of Council
Framework Decision 2002/584/JHA on the European Arrest Warrant and the Surrender
Procedures between Member States ("the Framework Decision"), which has been transposed
into Irish domestic law by s. 22(7) of the European Arrest Warrant Act, 2003 ("the Act of
2003") as substituted by s. 80 of the Criminal Justice (Terrorist Offences) Act, 2005.
3.
It appears from the s. 22(7) request that the further offence is one in respect of which
Article 2.2 of the Framework Decision is invoked, on the basis of a certification by the
issuing judicial authority that it qualifies as murder/grievous bodily harm in the Article 2.2
list.
4.
It requires to be noted that the appellant has already been tried, convicted and
sentenced in the Netherlands for the said further offence, and has received a sentence of life
imprisonment. Be that as it may, in light of the decision of the CJEU in Case C-388/08
Leymann & Pustovarov [2008] ECR I-8983 the appellant raises no issue in relation to the
fact that the Dutch authorities have already proceeded to conviction in respect of the offence
the subject matter of the s. 22(7) request. At paragraph 76 of the judgment in Leymann &
Pustovarov, the CJEU had observed:
""...the exception in Article 27 (3) (c) of the Framework Decision, must be
interpreted as meaning that, where there is an `offence other' than that for which the
person was surrendered, consent must be requested, in accordance with Article 27 (4)
of the Framework Decision, and obtained if a penalty or a measure involving the
deprivation of liberty is to be executed. The person surrendered can be prosecuted
and sentenced for such an offence before that consent has been obtained, provided
that no measure restricting liberty is applied during the prosecution or when
judgment is given for that offence...".
The effect of paragraph 76 of the judgment in Leymann & Pustovarov was noted previously
in Minister for Justice and Equality v Sliwa, both in the judgment of the High Court,
5.
The case before us involves an appeal against the judgment and Order of the High
Court (Binchy J.) of the 27
th
of July, 2020, granting the requested waiver and consent
pursuant to s. 22(7) of the Act of 2003.
6.
The document described as a "new additional European arrest warrant", and dated
the 18
th
of July, 2019, was not an actual European arrest warrant ("EAW"), but rather was the
presentation of information concerning the further offence in respect of which consent was
sought in the form of a European arrest warrant. The Points Of Objection filed on behalf of
the respondent at first instance (i.e., the present appellant) had included an objection to the
form of the s. 22(7) request on the basis that it had been characterised as being a "European
arrest warrant" when it was no such thing.
7.
The High Court had previously ruled in two other cases, i.e., Minister for Justice and
Equality v Trepiak [2011] IEHC 287 and Minister for Justice and Equality v Zymslowski
[2011] IEHC 286, respectively, in which the same expedient had been employed, that to use
the form of an EAW for making a s. 22(7) request was unobjectionable. In circumstances
where it was recognised that the High Court in this case was prima facie bound to follow the
decisions in those earlier cases, the objection was given what might be colloquially described
as "a light rub" and was not pressed in submissions, although it was made clear it was not
being abandoned.
8.
However, it gained no traction with the High Court judge who observed that it was
logical to use the expedient of presenting information about an offence the subject matter of a
request for consent under s. 22(7) of the Act of 2003 in the same format as would be used for
the issuance of an EAW, in circumstances where Article 27(4) of the Framework Decision
specifies that a request for such consent "shall be submitted to the executing judicial
authority accompanied by the information mentioned in Article 8(1)", and where Article 8(1)
of the Framework Decision, reflected in s. 11 of the Act of 2003, prescribes the information
that must be contained in a European arrest warrant.
9.
In the interval between the surrender of the appellant on foot of the 2016 EAWs, and
receipt of the request for consent the granting of which is the subject matter of this appeal,
there was an important development in European arrest warrant law. As outlined in paragraph
3 of the judgment of the High Court, [2020] IEHC 369, the Court of Justice of the European
Union ("CJEU") handed down judgment on the 27
th
of May, 2019, in the conjoined cases of
O.G. (C-508/18) and P.I. (C-82/19 PPU). The O.G. and P.I. cases were specifically
concerned with whether the Public Prosecutor's office of Lübeck, and the Public Prosecutor's
office of Zwickau, respectively, in Germany could validly act as issuing judicial authorities,
in a situation where they were potentially subject to directions or instructions in a specific
case from the executive of the issuing state. In its judgment the CJEU determined that the
autonomous concept of "issuing judicial authority" within the meaning of Article 6(1) of the
Framework Decision, must be interpreted as not including Public Prosecutors' Offices of a
Member State which are exposed to the risk of being subject, directly or indirectly, to
directions or instructions in a specific case from the executive, such as a Minister for Justice,
in connection with the adoption of a decision to issue a European arrest warrant.
10.
Since the judgment in the High Court, the CJEU has had cause to consider, in the
course of an application for a preliminary ruling, the position of Dutch public prosecutors
specifically, in a case of Criminal Proceedings against A.Z. Case C-510/19. In that case the
issue concerned whether such a prosecutor could validly act as an "executing judicial
authority". The CJEU held that, just as it had found in O.G. and P.I. that an "issuing judicial
authority" was an autonomous concept of EU law, so too was the concept of an "executing
judicial authority". It held that the status and the nature of the judicial authorities referred to
in Article 6(1) and 6(2) of the Framework Decision are identical, although those judicial
authorities exercise separate functions connected with, first, issuing a European arrest warrant
and, secondly, executing such a warrant. In either case the relevant judicial authorities must
be able to participate in the administration of justice acting independently of the executive in
the exercise of their responsibilities and under a procedure which complies with the
requirements inherent in effective judicial protection. The evidence before the CJEU (see
paragraph 69 of the judgment) was that under Article 127 of the Dutch law on the
organisation of the courts a public prosecutor may be subject to instructions in specific cases
from the Netherlands Ministry of Justice. In the case of the relevant Dutch public prosecutor,
who had previous surrendered A.Z. to Belgium on foot of an EAW while acting as an
executing judicial authority, and from whom consent was now sought by Belgium for the
purposes of Article 27(4) of the Framework Decision with a view to bringing further criminal
proceedings against A.Z., the CJEU considered that there was no effective shield against the
risk that his or her decision on whether or not to grant consent for the purposes of Article
27(4) would "be subject to an instruction ... from the Netherlands Ministry of Justice."
11.
Returning to the present case, it was common case that the 2016 EAWs had each been
issued by an issuing judicial authority who would not have qualified within the terms of the
CJEU's later rulings in the O.G., P.I. and A.Z. cases. In the case of two of them, they had
been issued by the Amsterdam District Public Prosecutors Office, and in the case of the third
it was issued by the Dutch National Prosecutor's Office, North Randstad Unit. It was
accepted before the High Court that these authorities were not valid issuing judicial
authorities within the meaning of Article 6(1) of the Framework Decision (albeit that this was
not recognised as being the position at the time) and that this was so notwithstanding the fact
that no express objection had been raised before the High Court on behalf of the present
appellant about the status or validity of either of the relevant issuing judicial authorities, and
further notwithstanding the fact that the High Court judge (Donnelly J.) had characterised the
two EAWs that had been issued by the Amsterdam District Public Prosecutors Office as
having been issued by a "competent judicial authority"; and might implicitly be taken as
having extended that endorsement to the third warrant, i.e., that issued by the Dutch National
Prosecutor's Office.
12.
It was further accepted by the parties before the High Court that, as a general
proposition, decisions of the CJEU have retrospective effect, and that the circumstances in
which they might not have retrospective effect did not arise in this case. The general rule has
been put beyond any doubt in the judgment of the CJEU in Criminal Proceedings against
A.Z. (see paragraphs 72 to 74 of the judgment, dealing with "Temporal limitation of the
Present Judgment").
13.
However, it has also been held in Asturcom Telecommunications S.L. v. Nogueira
"Community law does not require a national court to disapply domestic rules of
procedure conferring finality on a decision, even if to do so would make it possible to
remedy an infringement of a provision of Community law, regardless of its nature on
the part of the decision at issue ...".
This was an unsurprising finding as it was consistent with judicial pronouncements by the
CJEU in a series of other cases, cited in the Asturcom judgment, which had sought to
emphasise the importance of the principle that judicial decisions which had become definitive
after all rights of appeal had been exhausted, or after expiry of the time limits provided to
exercise those rights, should no longer be capable of being called into question. The cases in
14.
The court below noted that the decision in Asturcom was applied by Ní Raifeartaigh
J., while in the High Court, in the case of Cronin v Dublin City Sheriff [2018] 3 I.R. 191 and
that she had observed (at para 29 of her judgment in that case):
""The ECJ's own interpretation of the finality principle makes it clear that it is not
necessary to disapply domestic rules on finality merely because there has been a
misapplication of EU law."
15.
There was no issue of the present s. 22(7) request itself falling foul of the ruling in the
OG, P.I. and A.Z. cases as Dutch law has been amended with effect from the 13
th
of July,
2019, in order to overcome, at least prospectively, the difficulty created by the judgments in
those cases for the valid issuance of EAWs, and related requests, in the Netherlands; the
amendment in question facilitating the appointment of an investigating judge in EAW matters
as the "issuing judicial authority" for the purposes of the Surrender of Persons Act under
Dutch law. We understand that the said Surrender of Persons Act to be the domestic
legislation that transposes the Framework Decision into Dutch law. The s. 22 (7) request in
the present case emanates from an investigating judge lawfully authorised under the amended
Dutch law to deal with the appellant's file as an issuing judicial authority for the purposes of
the European arrest warrant and related issues. Although nothing now turns on it, there had
been an earlier s. 22(7) request in similar terms emanating from a Dutch public prosecutor,
but it was conceded on behalf of the applicant (the respondent to this appeal, i.e. the
Minister), before Coffey J. in the High Court, that it was not a validly issued request from an
"issuing judicial authority" within the meaning of Article 6(1) of the Framework Decision.
Coffey J. refused to grant s. 22(7) consent in those circumstances. However, the application
was subsequently renewed in the form of the present application, but this time it emanated
from an investigating judge acting as "issuing judicial authority", following the previously
referred to amendment to Dutch law.
16.
The request for s. 22(7) consent was opposed in the High Court on various grounds
that may be summarised as follows:
a)
As it was accepted that the decision in the O.G. and P.I. cases had
retrospective effect, it was said to follow that the 2016 EAWs were not issued
by an issuing judicial authority within the meaning of Article 6(1) of the
Framework Decision. Moreover, it is clear from the Act of 2003 that a request
for s. 22(7) consent can only be validly made by a member state that was an
"issuing state" in respect of an EAW (or as in this case EAWs) on foot of
which the subject person has already been surrendered. As the expression
"issuing state" is defined in s. 2 of the Act of 2003 as meaning in relation to
an EAW "a Member State designated under section 3, a judicial authority of
which has issued that European arrest warrant" it was said that the Kingdom
of the Netherlands did not qualify as an "issuing state" competent to make a s.
22(7) request in the circumstances of this case.
b)
It was also argued that it was not open to the Minister to contend that the issue
of whether or not the 2016 EAWs had been issued by an issuing judicial
authority within the meaning of Article 6(1) of the Framework Decision was
res judicata on the basis of Donnelly J.'s characterisation of them as having
been issued by "a competent judicial authority". It was said that res judicata
could not apply where there had been no resolution of an actual judicial
controversy. Moreover, it was suggested, the court was being asked to expand
the concept of res judicata in a radical way to extend its application beyond
judicial determinations made in resolution of adversarial contests to
inquisitorial findings made by an executing judicial authority, on issues in
respect of which there had not been controversy, in the exercise of the sui
generis procedure associated with applications for surrender on foot of a
European arrest warrant.
c)
Further, it was said that although the Minister had sought to rely on domestic
procedural rules on finality of judgments (specifically those developed by the
Supreme Court in A v Governor of Arbour Hill Prison [2006] 4 IR 88, and
applied in the criminal law context by the Court of Criminal Appeal in the
slightly later case of DPP v Cunningham [2013] 2 I.R. 631) to suggest that
notwithstanding the misapplication of EU law in respect of the 2016 EAWs,
the orders for surrender made on foot of those EAWs remained valid and
unassailable, counsel on behalf of the requested person (i.e. the appellant)
contended that the Minister should not be allowed to do so as it would mean
that the decision of the CJEU in O.G. and P.I. would operate ex nunc (i.e.,
only from now on) as opposed to ex tunc (i.e., from the outset) which, it was
suggested, the CJEU could not have intended.
How the High Court resolved the legal issues
17.
With respect to point (a) which related to whether, for the purposes of s. 27(7) of the
Act of 2003, the appellant was "a person who has been surrendered to an issuing state under
this Act", the High Court judge took the view (at para 37 of his judgment) that it was not
appropriate to treat the s. 22(7) as a stand-alone application and to ignore:
"...the underlying reality that this application arises as a direct consequence of the
order of surrender made by Donnelly J and as such is a continuum of a process. An
application under s. 22 of the Act of 2003 arises as a direct consequence of an earlier
application made for the surrender of a requested person pursuant to s. 16 of the Act
of 2003, during the course of which a party has an opportunity to raise any objection
he or she wishes (within the parameters of the Act of 2003 and the Framework
decision) to his/her surrender, and during the course of which the Court also
considers whether or not the requirements of the Act of 2003 generally have been
satisfied."
18.
In the circumstances, the High Court judge considered that the most appropriate way
of proceeding would be to first consider points (b) and (c), which raised somewhat related
issues, i.e., whether the Minister could rely on res judicata, and/or invoke domestic
procedural rules on finality of judgments to defend against what was arguably a collateral
attack on Donnelly J.'s surrender orders. The logic of this approach was that if the Minister
were to succeed in his arguments it would be dispositive of all facets of the objection to the
provision of s. 22(7) consent, and it would be unnecessary to specifically address point (a).
19.
The High Court judge ultimately ruled in favour of the Minister on both points. I will
come back momentarily to review the detail of what he said in that regard. However, before
doing so, it is necessary to record that having ruled in favour of the Minister, he went on to
express a view, acknowledging that it would be regarded as obiter dictum, concerning point
(a). In regard to that, he said (at para 42 et seq):
"... it is arguable, in my view, that the interpretation contended for by the respondent
is not in accordance with a straightforward interpretation of that section. As noted
above, the definition of `judicial authority' as set out in s. 2 of the Act of 2003 means:
`the judge, magistrate or other person (my emphasis) authorised under the
law of the Member State concerned to perform functions the same as or
similar to those performed under section 33 by a court in the State.'
43. The respondent's arguments in opposition to this application are premised on a
series of definitions in the Act of 2003, which, it is claimed, must now be read in the
light of the decision of the CJEU in OG as regards the characteristics of judicial
authorities for the purpose of the Framework Decision, as well as the subsequent
acceptance by the Dutch authorities that the prosecutors who had hitherto carried out
the function of issuing judicial authority, in the Netherlands, and who were
responsible for the issue of the 2016 warrants, did not meet the requirements of a
`judicial authority' as now interpreted by the CJEU. Accordingly, the argument goes,
there was no `judicial authority' to issue the 2016 warrants, and therefore no issuing
state for the purpose of s. 22 of the Act of 2003 and, therefore, the respondent is not,
for the purposes of s. 22 of the Act of 2003, a person who has been surrendered to an
`issuing state', as defined.
44. In my view there must be considerable doubt that this is a correct interpretation of
s. 22 of the Act of 2003. No one would doubt that in such circumstances such judicial
authorities could not continue to issue European arrest warrants after the decision in
OG, but that does not mean, on a straightforward interpretation of s. 22 of the Act of
2003, in accordance with the ordinary meaning of the words used, and by reference
to the various definitions relied upon by the respondent, that there was no judicial
authority at all: there were judicial authorities, as defined in s. 2 of the Act of 2003,
each being an `other person' i.e. the prosecutors. They did not meet the requirements
of the Framework Decision, but were, nonetheless, the nominated judicial authorities.
If that interpretation is correct then there was, for each warrant, indeed a `judicial
authority' and the respondent was surrendered to an `issuing state' for the purpose of
s. 22 of the Act of 2003. Even allowing for the retrospective effect of the subsequent
determination of the CJEU in OG, it is difficult to see how that decision could impact
upon an interpretation of the statutory definition of `judicial authority' in s. 2 of the
Act of 2003, that is based upon the ordinary meaning of the words used, in the
manner contended for by the respondent. While I appreciate that there are contrary
arguments, such an interpretation of the definition of `judicial authority' in s. 2 of the
Act of 2003, must, as I have said above, be at least arguable."
20.
On the related issues of res judicata and the applicability of domestic procedural rules
on finality of judgments, the High Court judge said (at paras 38 to 41 inclusive):
"38. ... the linkage between this application and the order for surrender is clear; it is
the very fact that an order for surrender has been made and implemented in respect of
other offences than that to which this application relates, that gives rise to the need
for this application, and so it is, in my view, much too simple an approach to take to
assert that this is, in all respects, a stand-alone application, as though nothing has
happened previously.
39. Applications for surrender made under the Act of 2003 are made following an
inquisitorial, not an adversarial, hearing. The `section 16 Hearing' is the hearing at
which the requested person is afforded the opportunity to challenge the application
for his/her surrender, and to put to the test the issue of the warrant and all or any
matters required for the issue of a valid warrant. Once the Court is satisfied that the
requirements of the Act of 2003 have been met, and that surrender is not prohibited
for any of the reasons provided for in the Act, the Court is obliged to make an order
for surrender. It follows from this that when a court makes an order for surrender, it
has been satisfied that the requirements of the Act of 2003 have been met in all
respects, including that the relevant European arrest warrant has been issued by a
judicial authority as defined in the Act of 2003, and this is so whether or not the
judgment of the High Court expressly states that to be the case, and whether or not
any objection has been raised under this heading. This is consistent with the
approach taken by the Supreme Court in A v. Governor of Arbour Hill. In this case,
as it happens, the judgment of Donnelly J., para. 37 expressly refers to the
Amsterdam District Public Prosecutors Office as being a "competent judicial
authority".
40. As this application evolved, the question as to whether or not the status of the
authorities that issued the 2016 warrants is res judicata moved centre stage.
However, the Court was referred to just one relevant authority in this regard, namely
that of A v. Governor of Arbour Hill. The passage from that case, quoted above,
appears to me to be apposite. When proceedings have concluded, it is not open to a
party to raise an issue he or she could have raised at the original hearing. Once the
Court declares itself satisfied in respect of the requirements for the making of an
order for surrender, and proceeds to make that order, it is not possible to reopen that
order or the matters giving rise to it, whatever the context (save, obviously, by way of
appeal). I agree with the submission of counsel for the applicant that an objection to
the application now before the Court on the basis that the 2016 warrants were not
issued by issuing judicial authorities within the meaning of the Framework Decision
or the Act of 2003, is a collateral attack on the decision ordering surrender, and that
it cannot be sustained.
41. I also accept the submissions of the applicant that the retrospective effect of the
decisions of the CJEU does not override the application of domestic rules and
procedures on the finality of decisions. While counsel for the respondent did submit
that the effect of the applicant's argument, if accepted, was that the decision of the
CJEU in OG would only be effective ex nunc, he did not take issue with the
proposition that the retrospective application of judgments of the CJEU does not have
the effect of disapplying domestic rules on the finality of decisions. For all of these
reasons I will make an order granting the application sought by the applicant
herein."
Issues on this appeal
21.
The parties have each furnished us with helpful written submissions, for which we are
grateful. In the appellant's written submissions, he raises yet again the previously mentioned
objection to the form of the s. 22(7) and seeks to press it with somewhat more vigour than in
the court below, in circumstances where, unlike the High Court, this Court is not bound to
follow the approach adopted in the earlier cases of Trepiak and Zymslowski. That said, we
were informed at the outset of the oral hearing of the appeal that counsel would not be
addressing this issue in oral submissions and was content to rest on his written submissions.
22.
The written submissions complain about what is characterized as "patent ambiguity
on the face of the documentation", in which it is said that on the one hand the documents
request surrender and purport to be an arrest warrant whilst on the other hand they suggest
that their purpose is to seek consent to further prosecution or execution of a custodial
sentence or detention order. It is contended that these are manifestly inconsistent purposes
and it is not possible to actually resolve the ambiguity.
23.
Moreover, it is suggested that the rulings in Trepiak and Zymslowski, respectively, to
the effect that the expedient of presenting relevant information in the same format as is used
for an actual EAW was unobjectionable, must be regarded as wrong in the light of dicta of
the Supreme Court in a number of subsequent cases which have sought to emphasise that in
European arrest warrant matters there can simply be no room for ambiguity. The cases of
Minister for Justice and Equality v Herman [2015] IESC 49 and Minister for Justice and
Equality v Connolly [2014] IESC 34 were relied upon as providing support for this
submission. It was suggested that given the rights that are engaged pursuant to the rule of
specialty it is imperative that there be absolute clarity in relation to any purported request,
and it was submitted that the request in this case lacked the necessary clarity.
24.
The arguments summarised at paragraph 16(a) above, concerning whether, for the
purposes of s. 27(7) of the Act of 2003, the appellant was "a person who has been
surrendered to an issuing state under this Act", were reprised both in the appellant's written
submissions and at the appeal hearing, as were the arguments in relation to res judicata, and
the application of domestic procedural rules on finality of judgments in the circumstances of
the case. The appellant's objections to the granting of the requested consent were in turn
vigorously opposed by counsel for the respondent to the appeal (i.e. the Minister) in
submissions both written and oral which, again, largely reprised arguments put forward at
first instance. I will refer to each side's submissions to the extent considered necessary to
explicate my decisions on the issues raised.
Decisions on the issues raised
The form of the s. 22(7) request
25.
I have not been impressed by the arguments advanced on behalf of the appellant in
respect of the form of the s. 22(7) request, and in particular with the criticisms made
concerning the presentation of relevant information in the same format as that prescribed for
use in the issuance of an actual European arrest warrant. I regard the suggestion that the use
of this expedient created an ambiguity in the circumstances of this case as being fanciful.
26.
To suggest this is not to gainsay the importance of clarity, and absence of ambiguity,
in EAW matters as emphasised by the Supreme Court. However, whether documentation is
or is not ambiguous as to its purpose is a question of fact and interpretation.
27.
In my view the documentation comprising the request, read as a whole, is entirely
clear as to what its purpose is. There were three relevant documents in all. First there was a
letter to the Irish Central Authority dated the 30
th
of July, 2019, from a public prosecutor at
the Dutch National Prosecutor's Office which says (inter alia):
"We refer to the enclosed additional EAW and request for the consent (under article
27 of the Framework Decision on the European Arrest Warrant) of the Irish High
Court to prosecute Naoufal Fassih for the offences set out in the EAW".
Accompanying this letter were two further documents, i.e., the document which had been
referred to as "the enclosed additional EAW" (and which is referred to elsewhere in the letter
as the "new additional European arrest warrant" to distinguish it from an earlier version
forwarded before the amendment to Dutch law alluded to at paragraph 15 above, and which it
was replacing), and another document entitled "National Public Prosecutor's Department,
Request for issuing an (additional) European Arrest Warrant (EAW)", and dated the 17
th
of
July, 2019. This latter document recites the fact of the appellant's surrender to the
Netherlands pursuant to the earlier (2016) EAWs (specifically referencing the judgment of
the Irish High Court of the 2
nd
of February 2017), proffers a draft document referred to as a
"concept additional EAW", and then presents a request from the public prosecutor at the
National Public Prosecution's Department to the investigating judge, in the following terms:-
"The Public Prosecutor at the National Public Prosecutions Department ...
Requests that the investigating judge issues an (additional) EAW against the
individual as referred to above, in order to obtain the additional permission as laid
down in article 27 paragraph 4 of the Framework Decision to prosecute and bring to
trial with sentencing in the Netherlands pursuant to the allegations as described in
the concept additional EAW."
28.
This request elucidates precisely the purpose for which the document which became
"the enclosed additional EAW", otherwise the "new additional European arrest warrant",
was intended. It was requested, and issued by the investigating judge, for the purpose of
obtaining the consent required from the Irish High Court by the Dutch authorities under
article 27(4) of the Framework Decision to validate further criminal proceedings against the
appellant in the Netherlands. I am completely satisfied that the document which the
investigating judge was being asked to issue and which, he having done so, was variously
referred to in the request subsequently forwarded to the Irish High Court as "the enclosed
additional EAW" and as a "new additional European arrest warrant", was intended to do no
more than present relevant information in the same format as that prescribed for use in the
issuance of an actual European arrest warrant, in circumstances where Article 27(4) of the
Framework Decision specifies that a request for such consent "shall be submitted to the
executing judicial authority accompanied by the information mentioned in Article 8(1)", and
where Article 8(1) of the Framework Decision prescribes the information that must be
contained in a European arrest warrant. Moreover, the adoption of this expedient also served
to pellucidly demonstrate that the s. 22(7) request was being made with the knowledge,
imprimatur and authority of the investigating judge concerned in his capacity as an issuing
judicial authority within the meaning of Article 6(1) of the Framework Decision.
29.
It is manifest from the documentation read as a whole that the requested person was
already in the Netherlands; that he had previously been surrendered to the Netherlands on
foot of earlier EAWs by order of the Irish High Court; and that, by virtue of the express
reference to the consent required under Article 27(4) of the Frame work Decision, the Dutch
authorities were asking the Irish High Court to waive of the rule of specialty and consent to
the further criminal prosecution or execution of a custodial sentence or detention order in
respect of the appellant in the kingdom of the Netherlands for the offence described and
particularised in the document variously described as the "the enclosed additional EAW" and
the "new additional European arrest warrant".
30.
In the circumstances I have no hesitation in rejecting any suggestion of ambiguity and
in dismissing the objection to the form of the s. 22(7) request.
Whether the appellant was "a person who has been surrendered
to an issuing state under this Act"
31.
Counsel for the appellant described this as being his "core argument" at the oral
hearing of the appeal. To properly consider it requires setting out the relevant statutory
provisions.
32.
Section 2 of the European Arrest Warrant Act, 2003 ('the 2003 Act')
defines a `
European Arrest Warrant'
as:
"...a warrant, order or decision of a judicial authority of a Member
State, issued under such laws as give effect to the Framework Decision
in that Member State, for the arrest and surrender by the State to that
Member State of a person in respect of an offence committed or
alleged to have been committed by him or her under the law of that
Member State".
33.
Article 1 of the Framework Decision defines it in very similar terms:
"1. The European arrest warrant is a judicial decision issued by a
Member State with a view to the arrest and surrender by another
Member State of a requested person, for the purposes of conducting a
criminal prosecution or executing a custodial sentence or detention
order."
34.
It goes on to provide the following additional definitions, which
are relevant for the purpose of this appeal.
"'Judicial authority' is defined as "the judge, magistrate or other
person authorised under the law of the Member State concerned to
perform functions the same as or similar to those performed under
section 33 by a court in the State".
'Issuing state ', in relation to a European Arrest Warrant, is defined as
"a Member State designated under section 3, a judicial authority of
which has issued that European Arrest Warrant".
'Issuing judicial authority', in relation to a European Arrest Warrant,
means "the judicial authority in the issuing state that issued the
European Arrest Warrant concerned"."
35.
Although the Framework Decision does not define a judicial authority or an issuing
judicial authority it provides as follows in respect of the designation of same at Article 6(1):
"1. The issuing judicial authority shall be the judicial authority of the issuing Member
State which is competent to issue a European arrest warrant by virtue of the law of
that State."
36.
Section 22 of the Act of 2003 as amended provides as follows in relation to the
procedure for making a request for consent to prosecute for further offences:
"(7) 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
(8)
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."
37.
Article 27(4) of the Framework Decision makes the following provision as regards
requests for consent for prosecution of other offences:
"4. A request for consent shall be submitted to the executing judicial authority,
accompanied by the information mentioned in Article 8(1) and a translation as
referred to in Article 8(2). Consent shall be given when the offence for which it is
requested is itself subject to surrender in accordance with the provisions of this
22
Framework Decision. Consent shall be reji1sed on the grounds referred to in Article
3 and otherwise may be refused only on the grounds referred to in· Article 4. The
decision shall be taken no later than 30 days after receipt of the request."
38.
Counsel for the appellant argues that in order for s. 22 (7) to be engaged, and in order
for the statutory proofs to be satisfied, it has to be shown that the person who was surrendered
was surrendered to an "issuing state", within the meaning of the definition in the Act of 2003;
and in turn that means a state the "issuing judicial authority" of which, again within the
meaning of the definition in the Act of 2003 has issued a European arrest warrant in respect
of the requested person. It was submitted that that condition was simply not met in this case.
The argument, in substance, is that because the purported "issuing judicial authority" who
issued the 2016 EAWs would not, in the case of any of those warrants have qualified as an
"issuing judicial authority" within the autonomous meaning of "issuing judicial authority"
subsequently explicated in the O.G., P.I. and A.Z. cases, there were no valid EAWs before
Donnelly J. in 2017. No valid EAWs having been issued, there could have been no surrender,
to an "issuing state".
39.
In reply, counsel for the respondent (i.e., the Minister) says that as
a plain matter of
fact (and indeed logic) it is difficult to see how the appellant is anyone other than a person
who was surrendered to an issuing state under the EAW Act. He was arrested on foot of three
European arrest warrants that had been endorsed by the High Court for execution and was duly
brought before the Court. Having heard his objections to surrender, the Court made orders
pursuant to section 16 surrendering him to the issuing state. He was then duly surrendered. These
are, it is suggested, plain, incontrovertible facts. Accordingly, he is a person who was
surrendered to the Netherlands under the EAW Act. It was submitted that if one adopts this
manifestly logical and common sensical approach, this ground of appeal should be dismissed
in limine.
23
40.
I do not agree that the point raised is one that requires to be dismissed in limine. On
the contrary, I consider that a serious point has been raised. However, I am ultimately
persuaded by the respondent's arguments, reflected in the judgment of the trial judge, that the
s. 22(7) application, is not to be regarded as a "stand alone" application, divorced in reality
from the decision of Donnelly J. to surrender the appellant on foot of the 2016 EAWs. It is
therefore inappropriate in my view to consider the merits of this objection in a
compartmentalised fashion and separate from the issues of res judicata, and the applicability
of domestic procedural rules on finality of judgments. The full circumstances of the case
require to be considered.
41.
Further, in a situation where counsel on both sides have not considered it necessary to
specifically address the views expressed obiter dictum by the trial judge concerning the
correct interpretation of s. 22 of the Act of 2003, I do not propose to do so either. I do not
consider it essential to do so to determine the issues at the heart of this appeal.
Res Judicata
42.
Regarding the reliance by the respondent to this appeal (i.e., the Minister) on the
doctrine of res judicata, counsel the appellant contends that the position adopted by the
respondent makes little sense. It was submitted that it doesn't comply with the most basic
requirements of the doctrine, namely the need to demonstrate, per McDonald J. in George v
(a)
a judgment was given by a court of competent jurisdiction;
(b)
it was a final decision on the merits;
(c)
the judgment determined a question which is raised in the
subsequent litigation; and
(d)
the parties to the subsequent litigation are the same as the parties
in the previous litigation.
24
43.
It was suggested on behalf of the appellant that the point at issue was not raised,
considered or determined in the original proceedings, and that that is fatal to the trial judge's
conclusion in relation to res judicata.
44.
It was further contended that in any event it is well recognised that the principle of res
judicata does not apply in extradition/rendition type proceedings.
45.
In reply to these points, counsel for the respondent has argued that the principle of res
judicata does apply. The issuance of a European Arrest warrant is in no sense a rubber-
stamping exercise. Although the surrender procedure is sui generis, involving elements of
both adversarial procedure and inquisitorial procedure, it is not the case that a proof not
contested may be taken as having been necessarily established. Even where an objection has
not been raised or contested adversarially, an executing judicial authority is independently
obliged, before making an order for the surrender of a requested person pursuant to an EAW
to be satisfied that the statutory preconditions to a valid surrender are met. This involves the
executing judicial authority examining the EAW on foot of which the requested person is
being sought and satisfying herself that it is in the correct form, including that it has been
issued by a competent judicial authority, and inquiring into whether the statutory
preconditions set out in s. 16 of the Act of 2003 have been met. It was submitted that
Donnelly J. had done precisely that in all cases, and had expressly observed with respect to
two of the three EAWs before her that they had been issued by "a competent judicial
authority". The respondent contends, and it has not been seriously challenged, that this
finding, offered in the context of a judgment relating to three EAWs in total in respect of all
of which the High Court judge had ultimately been satisfied to make orders for surrender, and
in the absence of anything in that judgment to suggest a contrary view, may be taken as
having been implicitly extended to cover the third warrant also.
25
46.
On the issue of whether res judicata can apply at all in extradition/rendition cases,
counsel for the respondent points to a distinction drawn in a learned textbook on the subject,
notably that of the late Paul Anthony McDermott entitled "The Law on Res Judicata and
Double Jeopardy"(1999 : Bloomsbury Professional), and alluded to by the former Chief
Justice in his judgment in the Supreme Court in the case of Minister for Justice, Equality and
Law Reform v Tobin (No 2)[2012] 4 IR 147, between cause of action estoppel and issue
estoppel. The respondent's position, which appears to be borne out on the authorities, is that
while cause of action estoppel cannot be invoked in extradition/rendition cases, the same is
not true in respect of issue estoppel. The respondent to this appeal relies squarely on issue
estoppel in advancing his objection based on res judicata. The respondent's position is that
the s. 22(7) request arises in an on-going legal process; that earlier in that on-going legal
process the issue of whether the 2016 EAWs had been issued by competent judicial
authorities was finally determined by Donnelly J., as had been the issue of whether it was
appropriate to surrender the appellant to the Netherlands on foot of the 2016 EAWs; and that
by reason of issue estoppel her determinations in that regard cannot now be revisited.
Counsel for the respondent contends that the trial judge had been right in his determination
that a s. 22(7) application represents the "continuum of a process" (sic), by which he had
meant, as he went on to explain, that there is a "linkage between this application and the
order for surrender", rendering it "much too simple an approach to take to assert that this is,
in all respects, a stand-alone application, as though nothing has happened previously".
47.
Having carefully considered the arguments on both sides I am satisfied that the
submissions made on behalf of the respondent concerning the res judicata objection are
correct. The relationship between the present application and the proceedings in which the
appellant was surrendered to the Netherlands on foot of the 2016 EAWs is a nuanced one,
and it is not appropriate to present it in the starkly disconnected way that the appellant seeks
26
to do. The trial judge was right in my view to suggest that it was too simple to regard the s.
22(7) application as standing alone.
48.
I further reject the applicant's submission that the point as to whether the 2016 EAWs
had been issued by competent judicial authorities was not raised, considered or determined in
the original proceedings. It may not have been the subject of an objection, or of any
adversarial contest, but I am satisfied that it was considered inquisitorially as part of the
judge's function during the s. 16 hearing and that a determination was made by Donnelly J.
that the 2016 EAWs had, in each case, been issued by a competent judicial authority.
49.
I am further satisfied that the four criteria listed in George v AVA Trade (EU) Limited
[2019] IEHC 187 were met in this case, in so far as the issue as to whether the 2016 EAWs
had, in each case, been issued by a competent judicial authority is concerned. That issue was
finally determined by Donnelly J. and I am satisfied that an issue estoppel arises in those
circumstances which precludes either a direct challenge to her finding in that regard, or a
collateral attack on the surrender orders made by her. The issues as to whether the 2016
EAWs had, in each case, been issued by a competent judicial authority, and as to whether the
appellant was liable to be surrendered to the Netherlands on foot of those EAWs, are res
judicata in the circumstances, as contended by the respondent to this appeal, and I uphold the
finding of the High Court in that regard.
Applicability of domestic procedural rules on finality of judgments
50.
Counsel for the appellant conceded before us that EU law does not require a national
court to disapply domestic rules of procedure conferring finality on a decision. However, he
submitted, the CJEU had the implicit power to limit the retrospective effect of its decisions in
O.G. and P.I but it had not done so. Moreover, in the A.Z. case the CJEU had been expressly
asked to do so by the Netherlands, but had declined to do so, as indeed it had also declined to
do in yet another case of Kovalkovas C-477/16 PPU, cited in the section of its judgment in
27
A.Z. dealing with the request to temporally limit the effect of its judgment. Counsel for the
appellant maintains that the unwillingness of the CJEU to contemplate a temporal limitation
is an important circumstance that this Court must now take into consideration, in determining
whether it is appropriate in all the circumstances of the case to seek to disapply domestic
rules of procedure conferring finality on a decision. The case is made that the CJEU's refusal
to place any temporal limitation on the application of its said judgments reflects a strong view
on its part as to the importance of the requirement that EU law should be applied in a
consistent and uniform manner.
51.
The appellant further contends that the High Court appeared to have afforded no
weight to the importance of the concept of a judicial authority as an autonomous concept of
EU law, and the desirability, indeed necessity, that such a concept should be interpreted and
applied uniformly and in a consistent manner across the Union, both temporally and
geographically.
52.
Replying to these submissions, counsel for the respondent argued that the principle
that a preliminary ruling sets out the correct interpretation ex tunc does not prevent the
application of national rules regarding the legal effect of previous national court rulings. In
recognition of the importance of procedural autonomy, legal certainty and the principle of res
judicata, EU law will allow a national judgment to stand despite it being based on an
understanding of the law which is subsequently overtaken by a preliminary ruling.
53.
Counsel referred us to the decision of the CJEU in Asturcom (cited earlier), and in
particular to the following passages from the judgment in that case:
"36. Indeed, the Court has already had occasion to observe that, in order to ensure
stability of the law and legal relations, as well as the sound administration of justice,
it is important that judicial decisions which have become definitive after all rights of
appeal have been exhausted or qfter expiry of the time-limits provided to exercise
28
those rights can no longer be called into question (Case C-224/01 Köbler [2003]
paragraph 20; and Case C-2/08 Fallimento Olimpiclub [2009] ECR I-0000,
paragraph 22).
37. Consequently, according to the case-law of the Court, Community law does not
require a national court to disapply domestic rules of procedure conferring finality on
a decision, even if to do so would make it possible to remedy an infringement of a
provision of Community law, regardless of its nature, on the part of the decision at
issue (see, inter alia, Case C-126/97 Eco Swiss [19997 ECR I-3055, paragraphs 47
and 48; Kapferer, paragraph 21; and Fallimento Olimpiclub. paragraph 23).
38. In the absence of Community legislation in this area, the rules implementing the
principle of res judicata are a matter for the national legal order, in accordance with
the principle of the procedural autonomy of the Member States."
54.
We were also referred to Cronin v Dublin City Sheriff (previously cited) where Ní
Raifeartaigh J. stated:
"In Kapferer v. Schlank & Schick GmbH (Case C-234/04) [2006] E.C.R. 1- 2585, as
set out at para. 11 above, the ECJ specifically said that community law did not
require a national court to disapply domestic rules or procedures conferring finality
on a decision, even if to do so would enable the national court to remedy an
infringement of community law. Having regard to Köbler v. Republic of Austria (Case
C-224/01) [2003] E.C.R. 1-10239, Kapferer v. Schlank & Schick GmbH (Case C-
234/04) and Amministrazione dell'Economia e delle Finanze v. Fallimento
Olimpiclub S.r.l. (Case C-2/08) [2009] E.C.R. 1- 7501, it might be argued, the matter
29
begins and ends; the ECJ's own interpretation of the finality principle makes it clear
that it is not necessary to disapply domestic rules on finality merely because there has
been a misapplication of EU law."
55.
It may be observed that Ní Raifeartaigh J.'s interpretation of the finality principle was
recently cited with approval by the Supreme Court in Pepper Finance Corporation (Ireland)
56.
Counsel for the respondent has submitted that the application of domestic rules on
finality is subject to the proviso that the rules implementing the principle of res judicata must
not be less favourable than those governing similar domestic actions (the principle of
equivalence), nor may they be framed in such a way as to make it in practice impossible or
excessively difficult to exercise the rights conferred by community law (the principle of
effectiveness). This is the "context" which must be considered when applying national rules
of finality in litigation. He points out that no submission has been made by the appellant that
the principles of effectiveness or equivalence would be breached by the application of
domestic rules on the finality of judgments to this case.
57.
Once again, having considered the arguments advanced on both sides I am satisfied
to accept the submissions made on behalf of the respondent as correct. I can see no reason to
disapply domestic rules on the finality of judgments in this case. Those rules are encapsulated
in the decision of the Supreme Court in A. v Governor of Arbour Hill Prison [2006] 4 I.R.
115, in which Murray C.J. said:
""...the retrospective effect of a judicial decision is excluded from cases already
finally determined. This is the common law position.
No one has ever suggested that every time there is a judicial adjudication clarifying
or interpreting the law in a particular manner which could have had some bearing on
30
previous and finally decided cases, civil or criminal, that such cases be re-opened or
the decisions set aside.
It has not been suggested because no legal system comprehends such an absolute or
complete retroactive effect of judicial decisions. To do so would render a legal system
uncertain, incoherent and dysfunctional. Such consequences would cause widespread
injustices."
58.
This approach was applied in the criminal context by the Court of Criminal Appeal in
the case of DPP v Cunningham [2013] 2 IR 631, where Hardiman J., giving judgment on
behalf of that court, and speaking of the consequences of a declaration of constitutional
invalidity, remarked (at para 73):
"Naturally, as we have just observed, the established jurisprudence from The State
(Byrne) v. Frawley [1978] I.R. 326, Murphy v. The Attorney General [1982] I.R. 241
[2006] 4 IR 88 shows that this does not necessarily mean that all actions, decisions
and transactions taken in good faith on foot of that unconstitutional law must be
unravelled, even if that invalidity operates ab initio. Any other conclusion would
simply represent the triumph of abstract logic over the dictates of justice and the
practical administration of society. Such a consequence is, in any event,
contraindicated by a range of defences ranging from prescription, estoppel, change
of position, acquiescence and res judicata which have evolved over the centuries, the
very point which was central to the judgment of Henchy J. in Murphy v. The Attorney
General."
59.
In my view the jurisprudence requires the application of domestic procedural rules on
finality of judgments in the circumstances of the present case. I consider that no sufficiently
31
good reason for not doing so has been advanced. While the principle of uniformity in
application of the law is an important tenet of EU law, so too is the principle that there should
be legal certainty and stability following upon final judicial determinations. I consider that in
the circumstances of this case the need to respect the latter principle tips the scales in favour
of the respondent. I would therefore uphold the ruling of the High Court judge which seeks to
apply domestic procedural rules on finality of judgments to the circumstances of this case and
his finding (at paragraph 40) that:
"an objection to the application now before the Court on the basis that the 2016
warrants were not issued by issuing judicial authorities within the meaning of the
Framework Decision or the Act of 2003, is a collateral attack on the decision
ordering surrender, and that it cannot be sustained."
Conclusion:
60.
In circumstances where I have not been persuaded that there is merit in any of the
appellant's grounds of appeal, I would dismiss the appeal.
Birmingham P: I concur with the judgment of Edwards J., and agree that the appeal should
be dismissed.
Gearty J: I also concur and agree that the appeal should be dismissed.
Result: Appeal Dismissed
.
