Judgment delivered the 19th day of February, 2009 by Denham J.
1. This is an appeal by the Minister for Justice, Equality and Law Reform, "the Minister", from the refusal of the High Court (Peart J.) on the 2nd November, 2007, to surrender Jaroslav Piotr Gotszlik, "the respondent", to Poland under s.16(1) of the European Arrest Warrant Act 2003 on two European Arrest Warrants which had issued on the 21st and the 28th November, 2006.
2. The central issue in the case arises in the circumstances that the judicial authority in Poland issued two separate warrants on which the surrender of the respondent is sought.
3. Two Warrants
3.1 The first warrant, the European Arrest Warrant arising from the judicial decision issued by the District Court in Ilawa on the 17th February, 2006, relates to two offences, which were described as follows:-
"I. In November 2005 in Ilawa, by applying violence in the form of pushing the abdominal part of the body, he led the minor Patrycja Otreba, aged 13, to sexual abuse in such a way that he kept touching her vagina with hands. Additionally, by applying force he attempted to lead to oral sexual intercourse but he failed to achieve the expected result due to resistance from the said minor.
II. In November 2005 in Ilawa, he led the minor Patrycja Otreba, aged 13, to another sexual activity by touching her vagina with hands."
3.2 The second European Arrest Warrant related to a sentence passed by the District Court in Ilawa on the 2nd December, 2003. A custodial sentence of one year and four months had been
imposed. The circumstances described were of assaults by the respondent on his wife. The nature and legal classification of the offence and the applicable statutory code were identified as physical
and mental cruelty, and article 270 paragraph 1 of the Penal Code. In a further description it was stated that in the period between June 2000 and June 2002 the respondent applied physical and
mental cruelty to his wife Wioletta Gotszlik when under the influence of alcohol, and the assaults were described. It was stated on the warrant that the respondent was present during the hearing and
assing of the verdict, but that once the verdict was directed to execution, he left his residence and has been absconding from completing the punishment, and so he has been sought by way of a
warrant of arrest.
4. Issue
The primary issue in this case is a construction of Irish statutory law in the light of the Framework Decision of the European Union. It arises as two warrants were issued by judicial authority in Poland. In the High Court surrender was refused on the basis of an interpretation of s.22 of the European Arrest Warrant Act, 2003, as substituted by s.80 of the Criminal Justice (Terrorist Offences) Act, 2005, hereinafter referred to as section 22.
5. Section 22 provides:-"22.- (1) In this section, except where the context otherwise requires, ‘offence’ means, in relation to a person to whom a European arrest warrant applies, an offence (other than an offence specified in the European arrest warrant in respect of which the person's surrender is ordered under this Act) under the law of the issuing state committed before the person's surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant consists in whole or in part.
(2) Subject to this section, the High Court shall refuse to surrender a person under this Act if it is satisfied that—
(a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and
(b) the person will be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.
(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to—
(a) proceed against him or her,
(b) sentence or detain him or her for a purpose referred to in subsection (2)(a), or
(c) otherwise restrict him or her in his or her personal liberty, in respect of an offence, unless the contrary is proved.
(4) The surrender of a person under this Act shall not be refused under subsection (2) if—
(a) upon conviction in respect of the offence concerned he or she is not liable to a term of imprisonment or detention, or
(b) the High Court is satisfied that, where upon such conviction he or she is liable to a term of imprisonment or detention and such other penalty as does not involve a restriction of his or her personal liberty, the said other penalty only will be imposed if he or she is convicted of the offence.
(5) The surrender of a person under this Act shall not be refused under subsection (2) if it is intended to impose in the issuing state a penalty (other than a penalty consisting of a restriction of the person's liberty) including a financial penalty in respect of an offence of which the person claimed has been convicted, notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to submit to any measure or comply with any requirements of which the penalty consists) he or she may, under the law of the issuing state be detained or otherwise deprived of his or her personal liberty.
(6) The surrender of a person under this Act shall not be refused under subsection (2) if the High Court—
(a) is satisfied that—
(i) proceedings will not be brought against the person in respect of an offence,
(ii) a penalty will not be imposed on the person in respect of an offence, and
(iii) the person will not be detained or otherwise restricted in his or her personal liberty for the purposes of an offence,
without the issuing judicial authority first obtaining the consent thereto of the High Court,
(b) is satisfied that—
(i) the person consents to being surrendered under section 15,
(ii) at the time of so consenting he or she consented to being so proceeded against, to such a penalty being imposed, or being so detained or restricted in his or her personal liberty, and was aware of the consequences of his or her so consenting, and
(iii) the person obtained or was afforded the opportunity of obtaining, or being provided with, professional legal advice in relation to the matters to which this section relates,
(c) is satisfied that—
(i) such proceedings will not be brought, such penalty will not be imposed and the person will not be so detained or otherwise restricted in his or her personal liberty before the expiration of a period of 45 days from the date of the person's final discharge in respect of the offence for which he or she is surrendered, and
(ii) during that period he or she will be free to leave the issuing state,
except where having been so discharged he or she leaves the issuing state and later returns thereto (whether during that period or later), or
(d) is satisfied that such proceedings will not be brought, such penalty will not be imposed and the person will not be so detained or restricted in his or her personal liberty unless—
(i) the person voluntarily gives his or her consent to being so proceeded against, such a penalty being imposed, or being so detained or restricted in his or her personal liberty, and is fully aware of the consequences of so doing,
(ii) that consent is given before the competent judicial authority in the issuing state, and
(iii) the person obtains or is afforded the opportunity of obtaining, or being provided with, professional legal advice in the issuing state in relation to the matters to which this section relates before he or she gives that consent.
(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 or the Framework
Decision (including the recitals thereto) be surrendered under this Act.” Section 22 is the implementation of Article 27 of the Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, 2002 O.J. (L190)1, hereinafter referred to as "Article 27".
6. Article 27 provides:-"Possible prosecution for other offences
1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases:
(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
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 Framework Decision. Consent shall be refused 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.
For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein."
7. The High Court
The learned High Court judge held:-
"I have considered this matter carefully. I have arrived at the conclusion that since s.22 has been worded in the way appearing and since those words are clear and unambiguous as to their meaning by reference to the plain and ordinary meaning to be given to the words used by the Oireachtas, the Court must, as required by that section refuse to surrender this respondent. The Framework Decision does not have direct effect. It requires an Act of the Oireachtas to give effect to its Articles. The Court is required to follow that legislation as passed for the purpose of giving effect to that instrument here. As I have already stated, the Act must be interpreted in the light of the intention of the Framework Decision provided that to do so is not ‘contra legem’. In my view, for this Court to order surrender on foot of either warrant or both warrants because it is of the view that the Framework Decision clearly intended that each of these offences should give rise to surrender even if requested on foot of separate warrants, would be to ignore the specific provisions of s. 22 of the Act, and would be contrary to the clear meaning of s. 22 and therefore ‘contra legem’. The fact that the circumstances in which this has arisen may not have been the intended target of the specialty provisions passed by the Oireachtas for the purpose of giving effect to Article 27 of the Framework Decision is neither here nor there. If there is a lacuna or an anomaly in the manner in which the section operates in a particular and exceptional case it is not for this Court to plug the gap by a purposive interpretation which runs contrary to the specific provision of the section. The Court must apply the law as leaned (sic) from the wording of the section, taking account of course of the manner of interpretation prescribed by the Pupino judgment already referred to.
I am of the view that the presumption contained in s. 22(3) of the Act does not save the situation given the contents of both warrants and the request in each that the respondent be surrendered to be dealt with under both.
I hasten to add that this situation arises only from the fact that for whatever reason the Polish judicial authority has chosen to send over two separate warrants. That need not have occurred, and indeed there would appear to be nothing to inhibit that authority from issuing a new warrant on another occasion containing within it both offences and then this point would not arise."
8. Appeal
The Minister has appealed against the judgment and order of the High Court. The following grounds of appeal were filed:-
1. That the learned trial Judge erred in law in interpreting section 22 as requiring the court to refuse the surrender of the respondent.
2. That the learned trial Judge erred in law in concluding that only a literal interpretation of section 22 was appropriate.
3. That the learned trial Judge erred in law in failing to apply section 18 of the Interpretation Act, 2005, in interpreting section 22.
4. In the alternative, that in applying the meaning of the word "offence" provided in subsection (1) of section 22, that the learned trial Judge erred in law in that the context did otherwise require in the application of the facts of this case to the wording of subsection (2).
5. That the learned trial Judge erred in law in concluding that a purposive interpretation of section 22 would be "contra legem".
6. Further, or in the alternative, that in applying a literal interpretation to section 22, the learned trial Judge erred in law, in refusing to order the surrender of the respondent.
7. In particular, without prejudice to the generality of ground 5, that the learned trial Judge erred in law in not applying the presumption in favour of the requesting judicial authority that it would respect the rule of specialty in the event that he refused surrender on one or other of the European arrest warrants.
8. That the learned trial Judge erred in law in failing to interpret section 22 in a manner that gave effect to the objects of the Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States.
9. That the learned trial Judge erred in law in failing to have regard to the fact that there was substantively one application before the Court.
10. That the learned trial Judge erred in law in not making an Order directing the surrender of the respondent to Poland pursuant to section 16 of the European Arrest Warrant Act, 2003, as amended.
9. Statutory Construction
Essentially this case turns on the construction of section 22.
10. It was indicated by letter translated on the 8th June, 2008, that one warrant, that relating to the assault, has now been withdrawn. The appeal was listed before this Court in October 2008,
when it was requested, on behalf of the Minister, that the issue be decided, notwithstanding that it may now be moot, as there are other cases before the High Court involving multiple warrants. At
that time the Chief Justice indicated that it would be a matter for the Court hearing the appeal.
11. Moot
I am satisfied that, while the second warrant has been withdrawn, it is an exceptional case enabling the Court to consider in its discretion as to whether to hear a point of law in circumstances which have rendered the matter moot. I accept that the second warrant has been withdrawn and that therefore the respondent will not be surrendered on that warrant. However, for a number of reasons, I am satisfied that the issue should be decided. The issue is one of law, which is relevant to other cases currently listed before the High Court. A decision will be required on this legal issue. If this matter is decided now it will save the costs of bringing another appeal to the Court on this point. The list of pending cases before this Court is such that any other appeal would not take place for a considerable time. The European arrest warrant system was introduced here and in other Member States to bring about a less complex and speedier process of extradition. It is important that European arrest warrant cases be heard without delay. For these reasons I would exercise the inherent discretion of the Court and hear and determine this issue of law.
12. Submissions
Oral and written submissions from both parties were before the Court. There were two warrants when this matter came before the High Court, and for the purpose of this analysis it will be presumed that two warrants still exist and that nothing invalidates either warrant per se. On behalf of the Minister it was submitted that the High Court had erred in applying a literal interpretation of section 22. The respondent submitted that the decision of the High Court was correct.
13. Key Statutory Words
The case turns on the words in section 22, subsection (1) of which states:-
"22.- (1) In this section, except where the context otherwise requires, ‘offence’ means, in relation to a person to whom a European arrest warrant applies, an offence (other than an offence specified in the European arrest warrant in respect of which the person's surrender is ordered under this Act) under the law of the issuing state committed before the person's surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant consists in whole or in part."
14. Section 22 arises because of the specialty rule. That is the mischief it was established to avoid. The specialty rule, which has long been part of extradition law, arises to protect the person
surrendered from being prosecuted or sentenced for another offence on which he has not been surrendered. Thus, a State could not request a person for one offence and then prosecute or
sentence him for another offence on which he had not been surrendered. This protection is and was important to protect persons. It has arisen especially to protect persons from being prosecuted
for political offences or for offences on which there was no double criminality.
Article 27 of the Framework Decision recognises this concept. Article 27.2 pithily states that, with the exceptions stated in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence prior to his or her surrender other than that for which he or she was surrendered. This, clearly stated, is the principle that a person could not be prosecuted, etc. for an offence committed prior to surrender other than that on which he or she had been surrendered - in other words the rule of specialty.
However, as the European arrest warrant Scheme is based on mutual confidence between the Member States it enables a reversal of the rule of specialty by consent. This is a matter which may be developed in the future. It does not apply in this case. But it assists the analysis of this case in that it clarifies the fact that Article 27 of the Framework Decision is grounded on the specialty rule, as is section 22. Consequently, the mischief to be avoided by section 22 is the prosecution, sentence, etc. of a person in the requesting State for an offence not the subject of a warrant processed in the requested State.
But that does not arise here as all the offences are expressly on warrants seeking his surrender. Thus the concern which gave rise to the rule of specialty does not arise in this case.
15. The intent behind Article 27 of the Framework Decision was to preserve the rule of specialty, subject to its variation by consent.
16. By section 22 the Oireachtas intended to implement the Framework Decision. The words of the section are clear. "In this section" means the words apply to this section. The words
"except where the context otherwise requires" are important. I shall return to them. "Offence" is defined in the following words: "means, in relation to a person to whom a European arrest warrant
applies, an offence (other than an offence specified in the European arrest warrant in respect of which the person's surrender is ordered under this Act)…" Thus an "offence" means, in relation to a
person to whom a European arrest warrant applies, an offence other than an offence specified in the European arrest warrant on which the person's surrender is ordered. It is an offence on which
an order for surrender is not sought. Such offence is an offence "under the law of the issuing State committed before the person's surrender". Thus it is an offence committed before the surrender.
But excluded is "an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant consists in whole or in part". Clearly these words relate to an
offence prior to the surrender, other than an offence on the European arrest warrant. Thus they recreate in statutory form the rule of specialty, and relate to an offence not specified on a warrant.
Reference is made to "offence" as other than the "offence specified in the European arrest warrant". It is in the singular. However, warrants may, and do, have more than one offence specified on the warrant. The intent is clear - it excludes the offence specified on the European arrest warrant. An "offence" means an offence specified on a warrant.
The words "except where the context otherwise requires" require that the section be read in context. The context in this case is two warrants. On both warrants offences are stated and each are "an offence specified in the European arrest warrant". Each is an offence on which the person is sought to be surrendered. Thus there is full notice of each offence, a hearing in relation to each offence, and the respondent and Court are fully aware of the offences upon which it is sought to order his surrender. Under the legislation the Court is bound to make an order for surrender on each valid warrant.
17. Section 22(3) provides a specific statutory presumption. There is nothing before the Court to rebut that presumption. Indeed, the presumption confirms the interpretation of section 22
above.
18. I am satisfied that the words of section 22 should be interpreted as analysed above.
19. If an approach were taken, as by the learned High Court judge, which I do not accept to be a literal construction, it gives rise to the absurd situation that two valid European arrest warrants
are not given effect.
20. While I am satisfied that the words of section 22 are clear on their face, as I have concluded above, one could also take a purposive approach to section 22. That purpose is to give effect
to the rule of specialty - i.e. that a person who has been extradited, will not be prosecuted or sentenced for offences committed prior to his extradition, unless he is given a reasonable opportunity to
leave the requesting State. However, manifestly that rule is not violated if the requested State has made orders for surrender on foot of those offences.
21. Taken as a whole, while the European Arrest Warrant Act, 2003, as amended, may not be drafted in optimum terms, it is clearly intended to give effect to the Council Framework Decision
of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. The Framework Decision sought to establish a simplified system of surrender between
Member States. By this system it was sought to reduce issues such as delay and complexity. Section 22, and the Act as a whole, may be construed as implementing in the Statute the specialty rule
as addressed in Article 27 of the Framework Decision.
22. In Case C-105/03 Pupino [2005] E.C.R. 1-5285 the Grand Chamber of the European Court of Justice ruled that the national court is required to take into consideration all the rules of
national law and to interpret them, in the light of the wording and purpose of a Framework Decision.
23. Fennelly J., in Ó Fallúin v. Governor of Cloverhill Prison [2007] 3 IR 414 at p.420 referred to the obligation of the Court to interpret the Act in the light of the Council Framework
Decision on the European arrest warrant. This is an important factor for the Court in construing legislation created to provide national law pursuant to the Framework Decision.
24. Thus, applying the principles enunciated in Case C-105 Pupino, this Court should construe section 22 as far as possible in a manner which conforms with the provisions of the Framework
Decision. Article 27(2) includes the words "a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender
other than that for which he or she was surrendered". This expressly refers to an offence on which the person was surrendered. This implies that there is no restriction on surrender where there is
more than one warrant - the requirement is that there be an offence on which he or she is to be surrendered.
25. The High Court refused to order the surrender on the basis that the decision in Pupino is subject to the requirement that a conforming interpretation is not contra legem, and held that
section 22 was clear and unambiguous and that it was contra legem. However, I am satisfied that it could not be so considered. The intent of section 22 was to preserve the rule of specialty,
subject to its variation by consent which does not arise in this case. No issue of contra legem arises.
26. Decision on Law
Bearing in mind the words of section 22, and taking a purposive interpretation, noting especially the qualifying words "except where the context otherwise requires", considering the Framework Decision which could not be construed as requiring all offences to be on a single warrant, and the European principles of law enunciated in Pupino, I am satisfied that a court may order the surrender of a person on more than one European arrest warrant. Thus, as existed in the High Court in this case, the respondent may be ordered to be surrendered on two warrants. Such an approach preserves the rule of specialty and is consistent with the terms of section 22 and with the purpose of the Framework Decision.
27. However, the facts of this case have altered since it was heard in the High Court. A copy of a judicial decision dated 6th June, 2008 was handed into court. This referred to the European
arrest warrant relating to the assault. In the translated order of the Regional Court of Elblag it is stated that the respondent "is no longer sought to serve his term with relation to the case II K 776/02
of the District Court of Ilawa, which necessitates the European arrest warrant to be reversed". Consequently, the respondent may not be ordered to be surrendered on this European arrest warrant
and so may not be imprisoned on foot of that offence.
28. Conclusion
For the reasons given I would vary the judgment on law of the High Court. A person may be surrendered on more than one warrant. However, in this case there are no longer two warrants. Consequently, the respondent should be surrendered on the first warrant and I would make the necessary orders in relation to that European arrest warrant.
Judgment delivered the 19th day of February, 2009 by Macken, J.
I am in agreement with the judgment of Denham, J. in this matter, but would like to add some general comments on the question of more than one warrant being presented simultaneously in respect of the surrender of the same person, pursuant to the provisions of the European Arrest Warrant Act 2003 (“the Act of 2003”). Although in the present appeal the Court has been informed that one of the two arrest warrants has now been withdrawn by the issuing judicial authority in Poland, and is therefore no longer before the court, in light to the statement at the commencement of the hearing that other cases raising a similar issue exist in the High Court, it is appropriate to consider the matter from a point of principle.
I am satisfied firstly, that the appellant is correct in his contention that the application of the provisions of the Interpretation Act 2005 is such as to include within the terms of s.22 of the Act of 2003 both warrants presented in this appeal, or indeed in any case where, save in particular circumstances, or in an unusual context, neither of which arises in the present case, two or more European arrest warrants are presented for execution, whether issued by the same judicial authority in a member state (as in the present case) or by two different judicial authorities in the same member state. The argument of senior counsel for the appellant based on the provisions of the Interpretation Act 2005 is as follows. S.18 of that Act may, and ordinarily should, be applied to the interpretation of s.22 of the Act of 2003, so that “warrant” in that section automatically includes the plural “warrants”. Therefore, more than one warrant can clearly be presented, s.18 of the Interpretation Act reading as follows: "(a) Singular and plural. A word importing the singular shall be read as also importing the plural, and a word importing the plural shall be read as also importing the singular."
The application of this provision to s.22 of the Act of 2003 would have the following effect:"In this section, except where the context otherwise requires, offence means, in relation to a person to whom a European arrest warrant(s) applies, an offence (other than an offence specified in the European arrest warrant(s) in respect of which the person's surrender is ordered under the Act) under the law of the issuing state committed before the person's surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence(s) specified in the European arrest warrant(s) consists in whole or in part".
While I accept that the provisions of this part of s.22 are drafted in rather convoluted or complicated terms, in essence the application of S.18 of the Interpretation Act 2005 would mean that, where the singular includes the plural, as is invariably the case unless legislation otherwise specifically requires, on its plain wording, s.22 correctly applied even when referring to more than one warrant, nevertheless maintains the protection granted by that section under the “rule of specialty”, which, as explained in the judgment of Denham J. is the clear purpose of s.22 of the Act of 2003, enacting, as it does, the provisions in that regard found also in the Framework Decision.
Secondly, I am equally satisfied that even if that were not so, and the court - as it must - applies the principles enunciated by the European Court of Justice in Case C- 105/03 Pupino, [2005] E.C.R. 1-5285 so as to implement the wording and purpose of the Framework Decision, the same result would ensue.
The reasons for this are clear. Both the Framework Decision (Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), and the Act of 2003 by which the State enacted the Framework Decision into Irish law, establish a scheme or a process by which persons may be surrendered in a manner which is more fluid and less complex than that which previously existed by means of bi lateral extradition arrangements between states. That scheme or process provides for a person to be surrendered in two circumstances, one in the case of intended proceedings, the second where a person has been convicted and sentenced to imprisonment and is sought for the purposes of serving a sentence(s). It is the latter situation which arises in this appeal. This judgment is confined to the situation where two or more warrants for surrender for the purposes of serving sentences upon conviction are presented for execution.
In the present appeal, the two warrants originally presented issued from the same judicial authority, in this case the District Court in Ilawa, Poland, and undoubtedly it would have been more convenient had both offences, in respect of which the respondent was sought to serve sentences upon his conviction, been included in the same European arrest warrant, rather than in two separate warrants. However, as a matter of principle, it is appropriate to ascertain whether there is any legal obligation to present all convictions for offences in a single warrant, and in particular whether any such obligation can be implied from the provisions of the Framework Decision, as annexed to the Act of 2003. I am satisfied that there is no obligation to do so, and also that the absence of any such obligation is wholly understandable, when the structure of the Framework Decision and its relevant provisions are examined.
Recital (6) of the Framework Decision states that the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council, referred to as the “cornerstone of judicial cooperation”, from which it is clear that the basis of the engagement is that of judicial cooperation, and not merely cooperation between member states, or between member state central authorities.
According to the structure of the Framework Decision, there is provision for the designation in each member state of “judicial authorities”, and of a “central authority”. By recital (9) of the Framework Decision the role of a central authority is circumscribed by the following terms:“The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance.”
Article 6 of the Framework Decision defines the “issuing judicial authority” and the “executing judicial authority” as being the “judicial authority of the member state competent to issue or to execute a European arrest warrant by virtue of the law of the member state”. Article 7 on the other hand permits but does not oblige a member state to designate a central authority, under 7(1) to “assist the judicial authority”, or under 7(2) and if necessary by reason of the organisation of its judicial system, to be “responsible for the administrative transmission and reception of European arrest warrants and for other official correspondence relating thereto”.
Next, the Framework Decision itself provides for certain content to be included in the European arrest warrant, in accordance with the Annex to the Decision itself. The model warrant as provided for in the Annex states, in its title, that it has been issued by a “competent judicial authority”, but it is unnecessary to consider the detail of the model warrant further for the purposes of this judgment.
Each of the provisions referred to above is mirrored in Irish law by, and indeed the Framework Decision itself is annexed to, the Act of 2003, which has been amended or substituted in some respects by the Criminal Justice (Terrorist Offences) Act, 2005. S.6 of the Act of 2003 designates the appellant in this appeal as the “central authority”. An “issuing Member State” is defined by s.2 in the following terms:“ …means, in relation to a European arrest warrant, a Member State, designated under section 3, a judicial authority of which has issued that European arrest warrant;”
A “judicial authority” is defined by s.2 as follows: “means 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.”
Section 33 of the Act of 2003 provides that the District Court, Circuit Court, High Court or Special Criminal Court may each issue a European arrest warrant, provided a domestic warrant has been issued for the arrest of a person but has not been executed, and that person is outside the state.
It is clear therefore that, according to Irish law, a “judicial authority” in another member state is not the central authority which might transmit a warrant, its competence being limited by the provisions of the Framework Decision itself, but rather any “judge, magistrate or other authorised person” who carries out the same functions, in this case issuing such a warrant, as a judge in the State would, in any of the above courts.
Having regard to the foregoing, there exists the distinct possibility in this jurisdiction that more than one judicial authority might issue a European arrest warrant in respect of the same person. The issuing of a European arrest warrant depends on the division of competence and jurisdiction between the several courts or parties falling within the ambit of “judicial authority” as defined in a member state, it not necessarily being the case, as it is not the case necessarily in this jurisdiction, that only one such warrant could be issued, particularly if a person is sought pursuant to say a domestic warrant issuing from the District Court and a warrant has also issued from the Circuit Court. Generally speaking, a lower jurisdiction does not have competence to make orders in respect of matters within the competence of a higher jurisdiction. Provision is made in s.33(4) and (5) of the Act of 2003 for avoiding or reducing the likelihood of an unnecessary number of European arrest warrants issuing in respect of the same person for different offences.
The Framework Decision is intended to operate across a wide range of member states having very different courts, tribunals and legal structures. It may reasonably be assumed, as in the State, that some internal jurisdictional division also exists in relation to the issuing of European arrests warrants in other jurisdictions. An “authorised person” within the meaning of s.33 of the Act of 2003 in another member state often will be, but may not necessarily be, a judge or a magistrate, provided he/she exercises the appropriate equivalent functions to those covered by s.33 of the Act of 2003. In that regard, some writers point to the differences and distinctions in the several member states, drawing attention to some of the varying features of the implementation of the Framework Decision in respect of, inter alia, “issuing judicial authorities” in member states: (a) in some member states district courts, examining judges and public prosecutors have all been designated as “issuing judicial authorities”, but in respect of some of these, a further distinction is drawn in some member states between those designated for the purposes related to intended criminal proceedings, and those related to the execution of a sentence (see Blekxtoon and Ballegooij Handbook on the European Arrest Warrant [2004] TMC Asser Press) for a survey of the range of issuing and executing judicial authorities in several member states. While it is sometimes the case that reference is made to a “Polish warrant” or a “French warrant”, such a warrant is in fact the warrant of a designated judicial authority in a particular member state, and not necessarily one single authorised person or institution.
Miss Donnelly, senior counsel for the respondent, in the course of her oral submissions suggested that, since the Framework Decision is silent on the question of the issuing of two European arrest warrants from one member state, it cannot be assumed that its framers intended that more than one such warrant might issue. While it is true that the Framework Decision does not deal expressly with more than one such warrant, save in the case of warrants issuing from two separate member states, it seems to me that on a correct interpretation of its wording and underlying objects, and in particular to the requirement to designate an “issuing judicial authority” and its definition, it cannot have been the intention of its framers to place any inhibition on the surrender of a person in circumstances where two or more European arrest warrants are issued by a designated judicial authority of a member state having power to do so.
Apart from the rule of specialty provided for in the Framework Decision and in the Act of 2003, dealt with fully in the judgment of Denham, J., I can find no basis upon which the Framework Decision should be interpreted so as to prevent the surrender of a person to serve sentences, nor any basis upon which the provisions of s.22 of the Act of 2003 can be successfully invoked to preclude such surrender, on the basis only that more than one such warrant issued from one or more judicial authorities in a member state in respect of the same person.
For these reasons, as well as those exposed by Denham J. in her judgment, I would allow the appeal and set aside the Order of the High Court.
