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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Minister for Justice, Equality and Law Reform -v- Altaravicius [2006] IESC 23 (05 April 2006)
URL: http://www.bailii.org/ie/cases/IESC/2006/S23.html
Cite as: [2006] 2 ILRM 241, [2006] IESC 23, [2006] 3 IR 148
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Judgment Title: Minister for Justice, Equality and Law Reform -v- Altaravicius

Neutral Citation: [2006] IESC 23

Supreme Court Record Number: 446/05

High Court Record Number: 2005 8 EXT

Date of Delivery: 05/04/2006

Court: Supreme Court


Composition of Court: Murray C.J., Denham J., Hardiman J.

Judgment by: Murray C.J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Murray C.J.
Appeal allowed - set aside High Court Order
Hardiman J.
Denham J.
Appeal allowed - set aside High Court Order
Hardiman J.


Outcome: Allow And Set Aside



- 17 -

SUPREME COURT

Murray C.J. 446/05
Denham J.
Hardiman J.

BETWEEN
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
PLAINTIFF / APPELLANT
-v-

VALDEMARAS ALTARAVICIUS
DEFENDANT / RESPONDENT

JUDGMENT delivered the 5th day of April, 2006 by Murray C.J.

This is an appeal by the Minister for Justice, Equality and Law Reform against an Order of the High Court made on the 29th November, 2005 directing the production of a copy of a domestic warrant underlying a European Arrest Warrant which was issued in Lithuania for the surrender of the respondent pursuant to the provisions of the European Arrest Warrant Act, 2003 for the purpose of requiring him to stand trial on a charge of robbery.

I should explain at this point what the underlying ‘domestic warrant’ refers to. When a European Arrest Warrant has been issued by a designated judicial authority of a Member State of the European Union it is usually, if not invariably, on the basis that there is already in existence in that country a warrant for that person’s arrest for the purpose of prosecution on criminal charges or an Order for his or her custodial detention or imprisonment. Both the Act of 2003 and the Framework Decision provide for reference to be made to such an underlying domestic arrest warrant in the form specified for the European Arrest Warrant.

The European Arrest Warrant Act, 2003 has been extensively amended, in particular by the substitution of new sections and subsections, by the Criminal Justice (Terrorist Offences) Act, 2005. References to the Act of 2003 may be taken as references to that Act as amended unless stated otherwise.
The ‘Framework Decision’ is the Council Framework Decision of 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA).

Background
On the 15th April, 2005 the respondent was arrested by Sergeant Martin O’Neill on foot of a European Arrest Warrant issued by a judicial authority in Lithuania dated 30th December, 2004. It had been endorsed for execution pursuant to Order of the High Court dated 8th April, 2005. Sergeant O’Neill brought the respondent before the High Court on the 15th April, 2005 and gave evidence of having executed the European Arrest Warrant and arrested the respondent. The respondent was released on bail pending a hearing pursuant to s. 16 of the Act of 2003.

The respondent subsequently served points of objection setting out the grounds upon which he was resisting the application for his surrender to Lithuania on foot of the European Arrest Warrant. The objection was couched in the most general terms namely:
      “The European Arrest Warrant requesting the arrest and surrender of the respondent, Valdemaras Altarvicius, is not in accordance with law and is unlawful, void and of no legal effect.”

That could hardly be considered a statement, even in summary form, of grounds. There is no indication whatsoever of why it is alleged the warrant is not in accordance with law. Neither does it refer to any material fact relied upon, if any. Such details are required by Rule 5 of Order 98 of the Rules of the Superior Courts (S.I. 23/2005).

It is common case that the respondent sought and obtained a number of adjournments of the hearing to be held pursuant to s. 16 of the Act in order to obtain the advice of an expert in Lithuanian law, the last of such adjournments being on the 20th June, 2005. On 20th July, 2005 the respondent filed a notice challenging the constitutionality of a large number of the provisions of the Act of 2003 and on 11th October, 2005 the hearing of the s. 16 application was fixed for 27th October, 2005.
By letter dated 25th October, 2005 the respondent, through his solicitors, wrote to the appellant’s solicitors seeking a copy of an arrest warrant of 8th February, 2002 issued by a District Court in Lithuania. No reason was given as why the copy warrant was considered relevant. This Lithuanian District Court arrest warrant was referred to in the European Arrest Warrant and is the so called underlying domestic warrant. The letter also stated that in the event of that District Court warrant not being made available to the respondent an application would be made to the High Court at the hearing of the s. 16 application for an Order directing discovery of the document.

This is what occurred when the matter came on for hearing before the High Court on 27th October, 2005. In summary what the respondent contended before the High Court was that discovery of the domestic warrant in question was required so as to enable the respondent to satisfy himself or at least consider whether the European Arrest Warrant is consistent with it. There could be, it was submitted, an issue of an inconsistency or lack of correspondence between the underlying warrant and the recitals on the face of the European Arrest Warrant. Insofar as s. 4A of the Act of 2003, as inserted by s. 69 of the Criminal Justice (Terrorist Offences) Act, 2005 provided for a presumption that an issuing State will comply with the requirements of the Framework Decision he wished to be in a position to consider whether that presumption could be rebutted. It was also submitted that since the onus is placed upon the respondent to dislodge that presumption he was entitled, as a matter of fair procedures, to see a copy of the domestic warrant in question in order to consider whether the presumption could be rebutted.

The High Court decision
The Order of the High Court directed that the Domestic Warrant be furnished to the respondent in this case.

It is important to emphasise that the decision of the learned High Court Judge did not stem from any fact or circumstance peculiar to this particular application other than the request for a copy of the domestic warrant.

In his judgment he stated that the considerations which led him to make this Order in this case “are likely to apply in all cases” concerning an application to give effect to a European Arrest Warrant. In his judgment he concluded:
      “… it would seem to follow that in each case a copy of the underlying Domestic Warrant should either accompany the European Arrest Warrant or at least be available to the respondent and to the Court in sufficient time prior to the hearing of the application for the Order for Surrender. If that is done, it will obviate the need for an application for discovery. It is the case also, if I am correct about the Court’s duty to ensure that the European Arrest Warrant is “duly” issued, then even if the respondent fails to satisfy the Court of the relevance and necessity for the production of the Domestic Warrant for the purpose of any issued raised by him by way of Points of Objection, his natural justice right to a copy of same would nevertheless be difficult to overlook.”

Accordingly he went on to make the Order not, as he put it:
      “… on the basis of a discovery application, but on the basis that a copy of the warrant is something to which the respondent is entitled, should he express a wish to be provided with same.”

There were a number of considerations which the learned High Court Judge took into account in making his Order. He placed some emphasis on the use of the word “evidence” rather than “details” in paragraph (c) of Article 8.1 which refers to the Arrest Warrant setting out “evidence” of an enforceable judgment coming within the scope of Articles 1 and 2 of the Framework Decision that is, the domestic warrant. He did not consider that the provisions of s. 11(A) of the Act of 2003 as amended by the 2005 Act affected these considerations simply because it did not use the word “evidence” and merely required that the European Arrest Warrant should specify the domestic warrant issued in the requesting State. This is because s. 10 of the Act, as amended, expressly states that surrender to the issuing State under the Act shall take place “subject to and in accordance with the provisions of the Act and the Framework Decision …” (emphasis added). Since s. 10 commences by referring to a European Arrest Warrant “duly” issued by an issuing State the High Court may still be bound to satisfy itself that the requirements of the Framework Decision have been met, and that the domestic warrant is one of the appropriate kind.

His conclusion from these considerations was that it is a reasonable requirement that a copy of the domestic warrant should be available at least to the High Court even if the requesting State does not see fit to attach a copy of it to the European Arrest Warrant.

In reaching his conclusions he expressly relied on the judgment by Finlay Geoghegan J. in The Minister for Justice, Equality and Law Reform –v- Fallon (The High Court, unreported, 9th September, 2005).

In doing so he chose to follow the approach adopted by Finlay Geoghegan J. but, as I shall explain later, Finlay Geoghegan J. had before her in that case an affidavit setting out evidence as to foreign law which raised an issue seeking to counter any presumption that may exist that a European Arrest Warrant had been duly issued by the issuing State.

The learned High Court Judge also expressed the view that since the making of an Order for Surrender affected the liberty of the individual it will be difficult to overlook a respondent’s right, in the interests of natural justice and fair procedures, to have a copy of the underlying domestic warrant particularly if the Court required it in order to be satisfied that the European Arrest Warrant had been “duly” issued.

Decision
The process by which one State transfers a person to the custody of another State for the purpose of standing trial on a criminal charge or serving a sentence, whether it be called extradition, rendition or surrender, is a long established means of cooperation between States with a view to upholding the rule of law and combating all forms of criminal activity whether national or trans-national. The process is invariably reciprocal and such reciprocating arrangements may arise from bilateral agreements or, as is more often the case nowadays, multilateral treaties. The process of surrender of persons pursuant to a European Arrest Warrant, which is the one which applies in this case, derives from the Framework Decision adopted pursuant to Article 34 of the Treaty on European Union. Article 34(2)(b) of the Treaty provides that Framework Decisions “shall be binding on Member States as to the result to be achieved …”

The Act of 2003 is the means adopted by the State to give effect to its obligations under the Framework Decision. Those obligations are reflected in s. 10 of the Act which provides that where a European Arrest Warrant has been duly issued in respect of a person within the State, that person shall, subject to and in accordance with the provisions of the Act and the Framework Decision, be arrested and surrendered to the issuing State.

Section 9 of the Act identifies the High Court as the executing judicial authority in the State. Accordingly it is the duty of the High Court to order the surrender of a person once it is satisfied that the conditions laid down by the Act and the Framework Decision have been fulfilled.

As I mention later in this judgment the Act must be interpreted in the light of the terms of the Framework Decision which it implements and with particular regard to the objectives to be achieved. The system or mechanism of surrender created by the Framework Decision applies in all Member States of the European Union. Recital 5 in the preamble to the Framework Decision refers to “… the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences …” It has as its object “… to remove the complexity and potential for delay inherent …” in pre-existing extradition procedures. (Whether, in the light of its structure and the manner in which it has been drafted it will achieve that objective, is another question.) As that Recital, Recital 6 and Article 1.2 make clear it is founded on the mutual recognition of judicial decisions and judicial cooperation within the European Union. Recital 10 emphasises “the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States”. Both the preamble and provisions of the Framework Decision as well as the Act of 2003 acknowledge that in operating this system of surrender fundamental rights, including fairness of procedures, must be respected and provide for certain safeguards in that respect.

It is important to note that the ideas of mutual recognition and mutual respect relate to judicial decisions of a judicial authority, within the meaning of the Framework Decision, in one State by judicial authorities in other Member States.

The only issue in this case is whether the learned High Court Judge was correct in directing that a copy of the underlying domestic warrant be made available to him and to the respondent in this case and generally in applications for surrender pursuant to the Act of 2003.

In reaching his conclusions the learned High Court Judge had regard to a number of matters, referred to above, which can be described in summary as follows:

(i) Section 11(1) and (1)A of the Act of 2003 in conjunction with Article 8.1(c) of the Framework Decision;
(ii) Section 4A of the Act of 2003;
(iii) The decision of the High Court in The Minister for Justice, Equality and Law Reform –v- Michael Fallon, also known as, Michéal Ó Fallúin (the Fallon case);
(iv) General considerations concerning fair procedures.
    I propose to deal with each of these aspects of the High Court decision in turn.

    (i) Section 11 of the Act of 2003 and Article 8 of the Framework Decision
    Section 11(1) and (1A) if the European Arrest Warrant Act, 2003 as substituted by s. 2 of the Criminal Justice (Terrorist Offences) Act, 2005 govern the form of the European Arrest Warrant and specifies what it should contain.

    The relevant provisions are:
        11. – (1) A European Arrest Warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.
        (1A) Subject to subsection (2A), a European Arrest Warrant shall specify –
            …
    (e) That a conviction, sentence or detention Order is immediately enforceable against the person, or that a warrant for his or her arrest, or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of that offence,
            …

        Subsection (2A) is not relevant to the issues in these proceedings.

    Section 11.1(A) of the Act is clear and unambiguous on the question as to whether it is necessary to provide with or attach to a copy of a domestic warrant of the issuing Member State. For that purpose the European Arrest Warrant only has to specify that a warrant for a person’s arrest has been issued in respect of the offence for which his or her surrender is sought and details given as provided for in the form in the Annex to the Framework Decision. It clearly does not go so far as to require that a copy of that warrant be incorporated in the European Arrest Warrant or be attached to it. The European Arrest Warrant in this case contains the necessary statement to comply with s. 11.1(A). That has not really been in issue in the case. That warrant is in the form set out in the Annex to the Framework Decision as required by s. 1(1) of the Act.
      If that was the only provision governing what a European Arrest Warrant should specify the issues in this matter might have been more readily resolved. Although the Framework Decision cannot, in terms of community law, have direct effect (since Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and make it directly applicable within the State. This is achieved, inter alia, by s. 10 of the Act of 2003 which provides that where a European Arrest Warrant has been duly issued 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”. The Act does not confine itself to including the Framework Decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the Courts to interpret and apply the Framework Decision directly but it is sufficient for present purposes to note that s. 10 means that in deciding on an application for a surrender pursuant to the terms of the Act of 2003 the Court must apply both the provisions of the Act and the Framework Decision. It is, to say the least, an idiosyncratic method of legislating and likely to create ambiguity.

      Article 8 of the Framework Decision also deals with the content and form of the European Arrest Warrant, the relevant part of which provides:
          “1. The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex:
          …
      (c) Evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;”

      So the learned High Court Judge had not only to look at s. 11(1A) governing the content of the European Arrest Warrant but also Article 8.1(c) of the Framework Decision on the same matter. It was the use of the word “evidence” in the Framework Decision, a word not used in s. 11, which occupied much of his considerations. In the ordinary scheme of things the function and purpose of the appropriate national legislative measure is to give effect to a Framework Decision. Article 34(2)(b) of the Treaty on European Union, as amended by the Amsterdam Treaty, 1997, provides that “Framework Decisions shall be binding upon the Member States as to the result to be achieved but shall leave it to the national authorities the choice of form and method. They shall not entail direct effect …”

      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 …” (C-105/03 Pupino ECJ 16th June, 2005). 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.

      Thus this Court is in the unusual position of having to interpret and apply Article 8 of the Framework Decision directly because of the effect given to it in national law by the Oireachtas and not by Community Law. A reference of a question concerning the interpretation or application of the Framework Decision to the Court of Justice for a preliminary ruling pursuant to Article 35.1 of the Treaty on European Union cannot be made since Ireland has not made a declaration accepting the jurisdiction of the Court of Justice to give such a preliminary ruling which Article 35.2 makes a precondition to any such jurisdiction. It is a matter for this Court to determine, in final instance, the interpretation of the Framework Decision but I do not think it is necessary to refer generally to the principles and methods of interpretation of community law since I believe the issue in this case can be resolved on the basis of one of those methods namely, the ordinary meaning of the text of the provision in question.

      If one turns to the terms of Article 8 of the Framework Decision, although worded in somewhat different terms to the Act, I do not think that the result is any different even though it says that the information to be set out in the warrant should include “evidence” of the domestic warrant. At least that is the term used in the English language version and its equivalent term ‘fianaise’ is also used in the Irish language version.

      The next thing which is clear is that Article 8 does not specify that a copy of the domestic warrant shall be part of the information set out in the European Arrest Warrant. That would have been the obvious thing to state if that is what was intended.

      Article 8.1 also states, in common with Article 11.1(A) of the Act, that the European Arrest Warrant shall be in the form contained in the Annex. The relevant part of the form in the Annex is (b) which reads as follows:
      “Decision on which the Warrant is based:
      1. Arrest Warrant or judicial decision having the same effect: ……….
          Type: ……….
      2. Enforceable judgment: ……….
          Reference: ……….”
      So far as the form set out in the Framework Decision is concerned it is clear that all which it envisages is that certain information is given concerning an underlying domestic warrant or enforceable judgment, as the case may be. It does not in any sense suggest that a copy of the domestic warrant or judgment in question should be part of the European Arrest Warrant.

      This interpretation is to my mind confirmed by the introductory words to Article 8 which refers to the European Arrest Warrant containing “the following information set out in accordance with the form contained in the Annex;” (emphasis added)

      This is what the European Arrest Warrant in this case does. It gives information concerning the underlying domestic arrest warrant as required by the Article and the Annex. It states the date when the ruling issuing that arrest warrant was made and the Court by which it was made. It refers to the type of warrant as being an arrest warrant and goes on, although in my view unnecessarily, to refer to the enforceable judgment as being a judgment “to arrest” and gives a reference number. It is axiomatic that the term “evidence” falls to be interpreted according to its context (see Brady –v- Haughton & Ors [The Supreme Court, unreported, 29th July, 2005]). Information may be evidence of the existence of something. The term “evidence” is often used outside the context of court proceedings but even in court proceedings details or information concerning the existence of a thing may be sufficient. In any event, neither Article 8 nor the form contained in the Annex, require a copy of the domestic arrest warrant to be furnished or require its production.

      The judicial authority of the issuing State has stated in the European Arrest Warrant that such a warrant was issued, the date it was issued, the Court by which it was issued and its reference number. That information is evidence of the existence of an enforceable warrant against the person in question. In reality what the Framework Decision requires is that information is given as to existence of an underlying domestic warrant or judgment, where this exists, including information concerning the nature or type of warrant of judgment. This has been complied with.

      Accordingly the reference to the domestic warrant in the European Arrest Warrant fulfils the requirements of both s. 11 and Article 8.

      I would add that, although it is not a necessary consideration for present purposes, I am confirmed in this view by some of the other language versions of the Framework Decision. The Decision is authentic in each of the official languages. In its French version Article 8.1(c) refers to “l’indication de l’existence d’un jugement exécutoire, d’un mandat d’arrêt …” This may be interpreted as meaning ‘specifying’ or literally indication concerning the existence of the underlying warrant. Similar terminology is used in the Italian, Spanish, Portuguese and German language versions. (indicazione dell’esistenza; la indicacion de la existencia; indicacao da existencia; die Angabe … vorliegt.)

      (ii) Section 4A of the Act of 2003, as amended
      The learned High Court Judge also placed some reliance on the provisions of s. 4A of the Act of 2003 in coming to his conclusion.

      That section provides:
          “It shall be presumed that an issuing State will comply with the requirements of the Framework Decision, unless the contrary is shown.”

      That section only arises for consideration when an application for surrender is made. The section is couched in the future tense and plainly speaks of future compliance by the issuing State with the requirements of the Framework Decision subsequent to the making of an Order for a person’s surrender. This is quite logical since the Framework Decision imposes duties and obligations on the issuing State concerning the manner in which they deal with the person surrendered after surrender has taken place. Some of these are to be found in Chapter 3 of the Framework Decision dealing with “Effects of the Surrender”. One example is to be found in Article 26.1 where the issuing Member State is obliged to deduct all periods of detention arising from the execution of a European Arrest Warrant from the total period of detention to be served in the issuing Member State.

      In my view, s. 4A is not relevant to a question of whether an issuing State has complied with the Framework Decision in respect of a European Arrest Warrant already issued or whether that warrant conforms to the form of warrant required by the Act or the Framework Decision.

      Although I have concluded that the presumption referred to in s. 4A is not relevant to the circumstances of this case it is undoubtedly the case that extradition arrangements, whatever their form, between this country and other States have been applied by the Courts on the presumption that those States have complied or will comply in good faith with their obligations under the relevant Treaty or statutory provisions governing those arrangements. Generally speaking extradition arrangements and the like are based on recipricocity and mutuality. Each country enters into such arrangements on the presumption that the other country will comply with their requirements and apply them in good faith. In Ellis –v- O’Dea (No. 2) [1991] I.R. 251 at 262 McCarthy J. stated “The making of the extradition arrangements presupposes that the Government and the Oireachtas are satisfied, amongst other things, that, an Irish citizen being extradited to the United Kingdom, as in this instance, or to any other State with which Ireland has such arrangements, will not have his constitutional rights impaired”. In Wyatt –v- McLoughlin [1974] I.R. 378 at 390 Finlay J., as he then was, stated “… I am satisfied that I am entitled to have regard to the fact that an Extradition Act is necessarily the consequence, … of an agreement between two sovereign states reposing confidence in each other, and I should not in the first instance, suppose that the Court and other authorities of the country by which extradition is sought are using deceit so as to secure the apprehension of the plaintiff”. I take this as a correct statement of the law and is not affected by the decision of this Court in that case on appeal. In fact an example of that approach is to be found in the statement of Walsh J. (at 395) in giving a majority judgment in the appeal in Wyatt –v- McLoughlin when he stated “Until there is some reason to believe to the contrary, it is to be assumed that a statement of facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful statement of the facts of the case in respect of which the arrest is sought”. That approach is again underscored by the principles and objects recited in the preamble to the Framework Decision when it refers to mutual recognition of judicial decisions, judicial cooperation and a high level of confidence between Member States.

      That is not to say, as the judgments which I have cited, and others, have made clear, that the Courts are prevented from examining applications for surrender with a view to being satisfied that relevant legislation has been complied with and personal rights which are guaranteed are not infringed. But they do so with a benefit of a presumption that the issuing State complies with its obligations. If there is cogent evidence to the contrary then an issue may arise. A mere assertion of non-compliance or the mere raising of a possibility of non-compliance, which is the case here, is not sufficient to dislodge the presumption of compliance. If that were the case it would in effect convert the presumption of compliance into a presumption of non-compliance.

      Accordingly the existence of such a presumption cannot be treated as a basis for demanding the production of the underlying domestic warrant.

      (iii) The Fallon Case
      In reaching his general conclusions in this case the learned High Court Judge found support from the dicta of Finlay Geoghegan J. in the case of The Minister for Justice, Equality and Law Reform –v- Michael Fallon, also known as, Michéal Ó Fallúin [The High Court, unreported, 9th September, 2005]. That is a case in which Finlay Geoghegan J., having concluded that on the evidence before her in that case she should inquire into the issue as to whether a European Arrest Warrant had been duly issued in accordance with English law, adjourned the hearing to allow the applicant, the Minister, as well as the respondent if he so wished, to obtain further evidence in relation to the issues of English law or of compliance with the requirements of the Framework Decision concerning the issuing of the European Arrest Warrant by the English Court in that case.

      That case is quite different from the present case. The conclusions and findings of Finlay Geoghegan J. in that case were based on the evidence of an English lawyer, Mr. Cauldwell, to which she referred in stating:
          “… if a respondent puts before the Court evidence which, if accepted, establishes as a matter of probability that the European Arrest Warrant was not issued in accordance with the requirements of the Framework Decision or the requirements of the Framework Decision as implemented in the issuing State then this Court is bound to inquire whether such a European Arrest Warrant has been duly issued. The averments made by Mr. Cauldwell raise such an issue in this application.”

      In the Fallon case there were two reasons why Finlay Geoghegan J. considered that the validity of the underlying domestic warrant should be examined. One arose from s. 10 of the 2003 Act which refers to a European Arrest Warrant which has been “duly” issued and the other arose from the terms of s. 16(1)(e) of that Act which provides for the making of an order of surrender by the High Court provided that the surrender of the person in question is not prohibited by Part 3 which, inter alia, provides that a person should not be surrendered if that would constitute a contravention of any provision of the Constitution.

      In relation to each reason Finlay Geoghegan J. relied expressly on the existence in the affidavit by the English lawyer of evidence purporting to establish as a matter of probability that the arrest warrant in question was not duly issued. At one point she concluded that:
          “The evidence presently before this Court from Mr. Cauldwell is that as a matter of English law the 2003 warrant was no longer a valid warrant to arrest after its execution on 8th January, 2004.”

      It is clear that evidence was considered sufficient to prima facie dislodge the presumption.

      In this particular case there was no evidence before the High Court which raised, as a matter of probability or otherwise, that the European Arrest Warrant may not have been duly issued or that its execution would give rise to a denial of constitutional rights.

      It is not necessary to comment on the substance of the Fallon case since the ratio of the decision of Finaly Geoghegan J. has no application to the circumstances of this case, in the absence of any evidence before the High Court raising an issue as to the circumstances in which the European Arrest Warrant was issued.

      However, in expressing his concurrence with the view of Finlay Geoghegan J. the learned trial judge in this case continued “It would follow that the Court should have available to it at least a copy of the underlying warrant, and if that be so, fair procedures and natural justice would dictate that a copy should be furnished to the respondent”.

      In view of my conclusion that the ratio of the Fallon case has no application to the facts or circumstances of this case I am bound to conclude that the learned High Court Judge was incorrect in concluding that the Fallon case was a basis for requiring the State to produce the underlying arrest warrant.

      Section 20 of the 2003 Act
      There is one particular matter to which I wish to refer at this point. Section 20(1) of the Act of 2003 provides that the High Court may, “… if of the opinion that the documentation or information provided to it is not sufficient to perform its function under this Act, require the issuing judicial authority or the issuing State, as may be appropriate, to provide it with such additional documentation or information as it may specify, within such period as it may specify”.

      The section is clearly intended to apply in the circumstances of each particular case and is only relevant if the High Court is of the opinion that the documentation or information before it in a case is not sufficient to enable it to perform its function. It follows that if the European Arrest Warrant, in conjunction with any other matters which may be before it, is sufficient to enable the Court to perform its function, the application of that section does not arise.

      Moreover, Article 34.2(b) of the Treaty on European Union provides for the adoption of Framework Decisions for the purpose of approximating the laws and regulations of the Member States. It is also clear from the provisions of the Framework Decision in this case that it is intended to approximate the laws of Member States with regard to the surrender of persons so that there is in place a uniform system for such surrender throughout the European Union. The Act of 2003 must be interpreted in the light of the foregoing and s. 20 would not in my view be a basis for unilaterally requiring additional proofs to be provided or additional conditions to be fulfilled in every case.

      No decision pursuant to s. 20 has been made in this case.

      Recourse to s. 20 is a matter to be decided by a Judge of the High Court in the exercise of his or her discretion in each individual case provided of course that the essential elements necessary for the exercise of that discretion are present.

      (iv) Fair procedures generally
      I have concluded that neither s. 11 of the Act or Article 8 of the Framework Decision require that a copy of the underlying domestic arrest warrant be included in or attached to the European Arrest Warrant.

      I have also concluded that s. 4A and the Fallon case have no application to the circumstances of this case.

      There remains the general basis on which a copy of the underlying warrant was sought and the general consideration of fair procedures.

      The respondent in these proceedings has asserted that he wishes to look at the underlying domestic warrant in order to check whether there might be any inconsistency between the charge or charges in that warrant and the European Arrest Warrant. The issued raised is purely speculative. No material or evidential basis has been raised from which it could be inferred that any such inconsistency exists. Speculation or assertion as to what procedures might or might not have been followed in the issuing State is not sufficient to raise an issue to be tried in these proceedings.

      The operative document in an application for surrender pursuant to the Act is the European Arrest Warrant issued by a judicial authority of the issuing State within the meaning of the Framework Decision. That is the essential basis on which the High Court is required to act in an application pursuant to s. 16 of the Act.

      The circumstances in which and the extent to which a Court in this country could review a decision of a judicial authority in another country as to the correctness of its decision is not a matter which needs to be considered in this case. Suffice it to say that a mere assertion that there was a defect, let alone a mere statement that there may have been a defect, as in this case, in the manner in which the European Arrest Warrant was issued is not sufficient to raise an issue and put a Court on inquiry as to that matter. Apart from the fact that such an approach would make extradition or surrender wholly unworkable, it would be entirely inconsistent with the provisions of the 2003 Act as well as the objectives and provisions of the Framework Decision itself. So far as there is an analogy with discovery, to seek it on the basis outlined would be speculative and classically a fishing expedition.

      In my view the applicant, in the context of this application, has been accorded full and fair procedures. He has of course been served with a copy of the European Arrest Warrant on foot of which his surrender is sought. It is in the form provided for by the Act and the Framework Decision. That is the case which he has to meet and he has had an opportunity to do so.

      Accordingly I would allow the appeal and remit the matter to the High Court as the executing judicial authority for final determination.

       Judgment delivered on the 5th day of April, 2006 by Denham J.


      1. This appeal raises a preliminary net point for decision, the issue is whether a person is entitled simply on request to the domestic warrant on foot of which a European Arrest Warrant has been issued.
      2. In this case a European Arrest Warrant has been received in Ireland from Lithuania regarding Valdemaras Altaravicius.
      3. The European Arrest Warrant was endorsed for execution on the 5th April, 2005, and Valdemaras Altaravicius, the respondent herein and hereinafter referred to as ‘the respondent’, was arrested on foot of the warrant on the 15th April, 2005. Later that day the respondent was brought before the High Court where, evidence having been given as to the arrest, he was released on bail pending the hearing under s. 16 of the European Arrest Warrant Act, 2003, as amended. The respondent raised points of objection and adjournments were granted at the request of the respondent. Constitutional issues were also raised.
      4. By letter dated the 25th October, 2005, from the solicitors for the respondent, a copy of the original Lithuanian Court order referred to in paragraph (b) of the European Arrest Warrant was sought.
      5. When the case came on for hearing on the 27th October, 2005, the respondent sought an order from the High Court directing that the Minister for Justice Equality and Law Reform make discovery of the domestic warrant from Lithuania. Judgment was reserved.
      6. On the 29th November, 2005, the High Court made an order directing that prior to the hearing of the application under s.16 of the Act of 2003 for surrender of the respondent: (i) a copy of the domestic warrant be produced to the High Court; and (ii) a copy of the warrant be furnished also to the respondent.
      The learned High Court judge referred to the submission on behalf of the respondent that while there is a presumption contained in s.4A of the Act of 2003, as amended, to the effect that it is to be presumed that the issuing State will comply with the requirements of the Framework Decision, it is a rebuttable presumption given the words which follow the statement of the presumption, namely, ‘unless the contrary is shown’. Thus, it was submitted, that since the onus is on the respondent to discharge the presumption he must, as a matter of fair procedures, be entitled to see a copy of the domestic warrant so that he can consider whether the presumption can be rebutted.
      The learned High Court judge referred to the terms of s. 4A of the Act of 2003, as amended, and noted that it referred to a rebuttable presumption. The learned High Court judge was of the view that it would be a reasonable requirement that a copy of the domestic warrant should be available at least to the Court, even if the requesting State does not see fit to attach a copy to the European Arrest Warrant.
      The learned High Court judge made reference to constitutional rights of the respondent and to duties of the Court and stated:
      “. . . the Court should have available to it at the least a copy of the underlying warrant, and that if that be so, fair procedures and natural justice would dictate that a copy should be furnished to the respondent. In this regard Recital (12) to the Framework Decision specifically states that a Member State may apply its own constitutional rules as to due process.
              Since these considerations are likely to apply in all cases, it would seem to follow that in each case a copy of the underlying domestic warrant should either accompany the European arrest warrant or at least be available to the respondent and to the Court in sufficient time prior to the hearing of the application for the order for surrender. If that is done, it will obviate the need for an application for discovery. It is the case also, if I am correct about the Court’s duty to ensure [that the European Arrest Warrant is “duly” issued, that even if the respondent fails to satisfy] the Court of the relevance and necessity for the production of the domestic warrant for the purpose of any issue raised by him by way of Points of Objection, his natural justice right to a copy of same would nevertheless be difficult to overlook.

              In these circumstances I am content to deal with the matter not on the basis of a discovery application, but on the basis that a copy of the warrant is something to which the respondent is entitled, should he express a wish to be provided with same.
      In any event, I fail to see why the furnishing of a copy of the underlying domestic warrant should be something to which such objection is being taken by any requesting state. It can serve only to undermine the “high level of confidence” between Member States referred to in Recital (10) to the Framework Decision.”
        7. The Minister for Justice Equality and Law Reform has appealed against the said decision. Eight grounds of appeal were filed, as follows:
                “1. The learned High Court Judge erred in law in directing that a copy of the said Lithuanian Arrest Warrant be produced to the Court prior to the hearing of the Application for the surrender of the Respondent to the Republic of Lithuania for the purposes of trial under a European Arrest Warrant received from that State.
        2. The learned High Court Judge erred in law in concluding that, in every case where the surrender of a person to another state is sought on foot of a European Arrest Warrant, the underlying domestic arrest warrant in the requesting state must either accompany the European Arrest Warrant sent to the Central Authority in the State or be made available to the High Court prior to an application by the Appellant under Section 16 of the European Arrest Warrant Act, 2003 (as amended).
        3. In so deciding the learned High Court Judge erred in law in concluding that, in order for the High Court to be satisfied that the surrender of a person whose rendition is sought by another state on foot of a European Arrest Warrant is not prohibited by Part 3 of the European Arrest Warrant Act 2003 (as amended), it is necessary in every case for the High Court to have available to it a copy of the domestic arrest warrant issued in the requesting state and on foot of which the relevant European Arrest Warrant is issued.
        4. The learned High Court Judge erred in law in concluding that constitutional justice and fair procedures required the production of the underlying domestic warrant prior to the hearing of the Application seeking he surrender of this Respondent to Lithuania under Section 16 of the European Arrest Warrant Act, 2003 (as amended).
        5. In directing the production of the underlying domestic warrant in this case, where no evidence was put before the Court which would suggest that the European Arrest Warrant from the Republic of Lithuania was issued in breach of the requirements of the Framework Decision (‘the European Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender procedures between member states’) or the Framework Decision as implemented by the Republic of Lithuania, the learned High Court Judge erred in law.
        6. In directing the production in this case of the said underlying domestic arrest warrant, the learned High Court Judge failed to take any account of:
        (a) the provisions of Article 1.2 of the Framework Decision which provides that member states ‘shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision’;
        (b) the provisions of Section 4A of the European Arrest Warrant Act, 2003 (as amended) which provides that it ‘shall be presumed that an issuing state will comply with the requirements of the Framework Decision unless the contrary is shown’;
        (c) the presumption which underlies extradition treaties and legislation, such as the Framework Decision and the European Arrest Warrant Act 2003 & 2005, that states who are parties to such treaties or extradition arrangements with Ireland (such a the Republic of Lithuania) will act in good faith.
        7. The learned High Court Judge erred in law in failing to consider whether there was any evidence before him which would suggest that the authorities in the Republic of Lithuania had failed to comply with the requirements of the Framework Decision in issuing the European Arrest Warrant in respect of this Respondent.
        8. In particular the learned High Court Judge erred in law in failing to consider whether there was any evidence before him which could reasonably raise any concerns as to the validity of the arrest warrant issued for the Respondent in the District Court of the Kedainiai Region in Lithuania on the 8th of February 2002.”
          8. Oral and written submissions were made on behalf of the parties. On behalf of the Minister it was submitted that the domestic warrant of the requesting State is not a necessary proof prior to an order under s.16 of the Act of 2003, that the effect of the order of the High Court is to graft on to the statute an additional proof in every case, which the Oireachtas had not deemed necessary. On behalf of the respondent submissions were made reiterating the argument before the High Court and submitting that the order of the High Court was correct.
          9. The European Arrest Warrant contains several sections relevant to this preliminary issue. It commences as follows:
                  “This warrant has been issued by a competent judicial authority – the Prosecutor General’s Office of the Republic of Lithuania.
                  I, Deputy Prosecutor General Ms. Vaida Urmonaitë, request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution.”

          Paragraph (b) states:
          “Decision on which the warrant is based:

          1. Arrest warrant or judicial decision having the same effect: Ruling of 8 February 2002 made by District Court of Keëdainiai Region.
                  Type: arrest warrant.
          2. Enforceable judgement: to arrest
                    Reference: 66-1-01395-01.”
          Paragraph (i) states:

          “The judicial authority which issued the warrant:
          Official name: The Prosecutor General’s Office of the Republic of Lithuania.
          Name of its representative: Ms. Vaida Urmonaitë
          Post held: (title/grade): Deputy Prosecutor General
          File Reference: 14.3.-365”

          There follow phone, fax and other contact details.

          The warrant relates to one suspected offence, it is stated that the applicant on the 28th December, 2001, acting with a group of accomplices, using mental coercion or physical violence against two named juveniles, stole a mobile phone. The offence is described as a robbery, which may be punished by imprisonment for a term up to six years.
          10. Law
          Section 4A of the Act of 2003, as inserted by s. 69 of the Criminal Justice (Terrorist Offences) Act 2005, provides:
            “4A - It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown.”
          Article 8 of the Framework Decision provides that the arrest warrant shall contain information set out in the form contained in the annex. This includes paragraph 8(c) which requires evidence of an enforceable judgment, an arrest warrant, or any other enforceable judicial decision having same effect, coming within the scope of Article 1 and 2.
          Section 11(1A) of the Act of 2003, as substituted for s. 1(1) by s.72 (a) of the Act of 2005, to give effect to that Article provides, at paragraph (e) thereof, in respect of Article 8 (c), that the European Arrest Warrant shall specify:
                  “that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant for his or her arrest or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of the offence.”

          The court has a discretion to require additional documentation or information. This is provided for in s. 20(1) which states:
                  “In proceedings to which this Act applies the High Court may, if of the opinion that the documentation or information provided to it is not sufficient to enable it to perform its functions under this Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify, within such period as it may specify.”

          The European Arrest Warrant should be interpreted in accordance with the Act of 203, as amended, and in accordance with the Framework Decision.
          11. The Council Framework Decision of the 13th June, 2002, on the European Arrest Warrant, intended to change the existing extradition procedures between the Member States of the European Union and to replace it with a simple process based on the transfer of persons on foot of a European Arrest Warrant. The European Arrest Warrant Act, 2003 is an Act to give effect to the Council Framework Decision of the 13th June, 2002, on the European Arrest Warrant and the surrender procedures between Member States. This Act established in Ireland new procedures for the rendition of persons between Member States of the Union. It was intended to simplify the procedures. Section 10 of the Act of 2003 provides that where a judicial authority in an issuing State duly issues a European Arrest Warrant in respect of a person, against whom that State intends to bring proceedings for the offence to which the European Arrest Warrant relates, or on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing State before he or she commenced or completed the sentence, that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing State.
          The Act of 2003 sets out what should be in the European Arrest Warrant. The whole process is hinged on the European Arrest Warrant. It is a development from international co-operation at governmental level to international co-operation between the judiciary. It is part of a growth in the European Union of the concepts of mutual trust and judicial co-operation.
          12. Neither the Framework Decision nor the Act of 2003, as amended, explicitly requires the production of the domestic warrant. Indeed, to the contrary, the system established is for a single warrant, the European Arrest Warrant. There is a presumption that the requesting State will comply with the Framework Decision. This presumption lies ‘unless the contrary is shown’: see s. 4A of the Act of 2003, as amended. While it is open to a respondent to adduce evidence, to raise grounds, to show that the requesting State has not complied with the Framework Decision, under the Framework Decision and the Irish Statutory scheme there is a presumption that what is set out in the European Arrest Warrant is accurate and that the requesting State is acting in good faith.
          13. In effect the applicant seeks to turn this presumption on its head and, rather than the Court proceeding on the European Arrest Warrant and the presumption, require that this document be furnished in addition from the requesting State. The submission on behalf of the respondent, that while the presumption exists he bears the burden of rebutting it and so should be furnished with the documentation from the requesting State, is ingenious, but contrary to both the Framework Decision and the Act of 2003. The European Arrest Warrant represents a scheme for rendition, intended to be simple and intended to be on foot of a single warrant, the European Arrest Warrant, and not a national warrant. Consequently, as a matter of first principles relating to this system, I am satisfied that the respondent is not entitled on a simple request to be furnished with the domestic warrant.
          A presumption is what it says it is, it is presumed that the document is in order. The presumption may be rebutted, but the Court starts with the presumption that the document is in order. The presumption stands until something to the contrary is shown. A person may seek to rebut the presumption, however it is for that person to present legal reasons or evidence as to why the presumption should be rebutted. Consequently I would answer the preliminary question in the negative.
          14. Such an approach does not bar the respondent from making a case against his rendition. Nor does it bar the Court from considering whether on the face of a specific European Arrest Warrant there are facts or law, or a mixed question of law and fact, which would require that further documentation be furnished to the Court and to the respondent.
          15. The Court has a discretion under this Scheme. Article 15.2 of the Framework Decision provides for such a discretion, if the executing judicial authority finds the information from the issuing Member State be insufficient to allow it to decide on the surrender. It shall request that the necessary supplementary information be furnished as a matter of urgency.
          Section 20 of the Act of 2003 specifically provides that in proceedings to which the Act applies the High Court may, if of the opinion that the documentation or information provided to it is not sufficient to enable it to perform its functions under the Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify. This gives a statutory discretion to the court which is as broad as the courts functions under the Act.
          In addition, the courts have an inherent power to protect the constitutional rights of a person sought to be surrendered. This includes the protection of fair procedures.
          16. Thus, the court has powers and duties to enable it make decisions pursuant to the Act of 2003, as amended, and the Framework Decision, and the Constitution, to protect the rights of a requested person, and to protect the due process.
          17. In the absence of evidence raising any or any reasonable grounds to query the statements in the European Arrest Warrant in relation to the domestic warrant neither the Framework Decision, the legislation nor the Constitution require that the respondent be provided with the domestic warrant in order to go on a fishing expedition to see if there is material to form an attack on the validity of the European Arrest Warrant.
          18. The discretion provided for under s.20 of the Act of 2003, as amended, has not yet been sought and has not been exercised by the High Court in this case. It remains open to the respondent to make such an application pursuant to s.20 on the s.16 hearing.
          19. While there were submissions on the issue of discovery in the High Court, the High Court did not base its decision on principles of discovery. There was no appeal or cross-appeal on this issue. Consequently the concept of discovery forms no part of this decision.
          20. The learned High Court judge relied to some extent on dicta from Finlay Geoghegan J. in The Minister for Justice, Equality and Law Reform v. Michael Fallon, unreported, the High Court, 9th September, 2005. I will await consideration of that decision until a later date. However, I agree with Murray C.J. that the case is quite different from the present case.
          21. An issue may arise at a later stage in this case as to whether the warrant was issued by a judicial authority. I am satisfied that that issue is best considered at first instance by the High Court.
          22. Conclusion
          For the reasons given I would allow the appeal. The issue for decision is whether an applicant is entitled simply on request to the domestic warrant on foot of which a European Arrest Warrant has been issued. The High Court held that such a domestic warrant should be available in all cases. This ruling would mean that the domestic warrant would be a proof available in all cases, although it is not a legal requirement under the Act of 2003 or the Framework Decision. I am satisfied that the respondent is not entitled to, on request, a copy of the domestic warrant on foot of which a European Arrest Warrant has been issued. This decision has no bearing on any exercise of discretion by the High Court pursuant to s. 20(1) of the European Arrest Warrant Act, 2003, or otherwise.
          The European Arrest Warrant is a new scheme introduced with the intent of simplifying the procedures of rendition between the Member States. In the new procedure the European Arrest Warrant is the fundamental document, with discretion given to the Court to seek further documents. There is a presumption that the underlying documents are in order. The Court so approaches the European Arrest Warrant. A person may seek to rebut the presumption, which he is entitled to do. However, the Court is not required to go behind the presumption merely on a request, where nothing has been shown, to enable the person go on a ‘fishing expedition’ as to a document in the requesting State.
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