JUDGMENT of Murray C.J. delivered on the 28th day of July 2010
This judgment sets out the reason why at the hearing of the appeal in this matter, the Court ordered the release of the applicant pursuant to Article 40.4.2˚ on the grounds that it was not satisfied that his then detention in custody was in accordance with law. The appeal was against an order of the High Court refusing his application.
By order of the High Court dated 13th December, 2007, it was ordered, pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended, (hereafter “the Act” or “the Act of 2003) that the applicant be surrendered to the authorities of the Republic of Latvia in respect of a criminal offence specified in a European arrest warrant seeking such surrender.
That order of the High Court which was addressed, inter alia, to the respondent, the Governor of Cloverhill Prison directed that the applicant be lodged in Cloverhill Prison and be detained there in custody for a period of not less than fifteen days from the date of the order “until the date of his delivery as aforesaid and for any further period as may be necessary under the law”. It was the detention on foot of the said order which the applicant contended was unlawful.
Section 16 of the Act of 2003
Section 16 of the Act of 2003 as amended by s. 76 of the Criminal Justice (Terrorist Offences) Act 2005 provides as follows:
16.— (1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9) the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—
(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,
(c) where appropriate, an undertaking under section 45 or a facsimile or true copy thereof is provided to the court,
(d) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and
(e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).
(2) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 14 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—
(a) the European arrest warrant and, where appropriate, an undertaking under section 45, or facsimile or true copies thereof are provided to the court,
(b) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(c) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and
(d) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).
(2A) Where the High Court does not—
(a) make an order under subsection (1) on the date fixed under section 13, or
(b) make an order under subsection (2) on the date fixed under section 14,
it may remand the person before it in custody or on bail and, for those purposes, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.
(3) An order under this section shall take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court, upon the request of the person to whom the order applies, directs.
(4) When making an order under this section the High Court shall also make an order committing the person to a prison (or if he or she is not more than 21 years of age, to a remand institution) there to remain pending his or her surrender in accordance with the order under this section, and shall inform the person—
(a) that he or she will not, without his or her consent, be surrendered to the issuing state, before the expiration of the period of 15 days specified in subsection (3), and
(b) of his or her right to make a complaint under Article 40.4.2° of the Constitution at any time before his or her surrender to the issuing state.
(5) Subject to subsection (6) and section 18, a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after—
(a) the order takes effect in accordance with subsection (3) (inserted by section 76 (d) of the Criminal Justice (Terrorist Offences) Act 2005),
or,
(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.
(6) Where a person makes a complaint under Article 40.4.2° of the Constitution, he or she shall not be surrendered to the issuing state while proceedings relating to the complaint are pending.
(7) A person (to whom an order for the time being in force under this section applies) who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.
(8) Where the High Court decides not to make an order under this section—
(a) it shall give reasons for its decision, and
(b) the person shall, subject to subsection (9), be released from custody.
(9) Subsections (7) and (8) shall not apply if—
(a) (i) the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State,
(ii) on the date on which he or she would, but for this subsection, be entitled to be released under subsection (7) or (8), all or part of the term of imprisonment remains unexpired, and
(iii) the person is required to serve all or part of the remainder of that term of imprisonment,
(b) (i) the person has been charged with or convicted of an offence in the State, and
(ii) on the date on which he or she would, but for this paragraph, be entitled to be released from custody under subsection (7) or (8), he or she is required to be in custody by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, in respect of that offence.
(10) If the High Court has not, after the expiration of 60 days from the arrest of the person concerned under section 13 or 14, made an order under this section or section 15 , or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefor specified in the direction, and the Central Authority in the State shall comply with such direction.
(11) If the High Court has not, after the expiration of 90 days from the arrest of the person concerned under section 13 or 14, made an order under this section or section 15 , or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reason therefor specified in the direction, and the Central Authority in the State shall comply with such direction.
(12) An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme Court on a point of law only.
Background Circumstances
In accordance with s. 16(3) of the Act the order of the High Court for the applicant’s surrender was not to take effect before the expiration of a period of fifteen days after the making of the order. This was intended to facilitate, inter alia, an appeal from the High Court order. No appeal was lodged or other application made to a court during that period.
Accordingly the High Court order of 13th December, directing the applicant’s surrender to Latvia took effect fifteen days after that. The Irish and Latvian Central Authority proceeded on the basis that, having regard to s. 16(5) of the Act, the applicant’s surrender to the issuing state, Latvia, was required to take place not later than ten days after December 28th namely not later than the 7th January, 2008, unless para. (b) of s. 16(5) applied. No issue arises as to the relevant dates. As can be seen from that section (cited above), para. (b) means that surrender may be postponed by agreement to a date not later than ten days after “such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.” In the event of such later date being duly agreed in accordance with the section, the section requires the surrender to be made not later than ten days after the newly agreed date.
In this case, if no agreement on a later date had been entered into pursuant to s. 16(5)(b) and surrender had not taken place before or on 7th January, 2008 s. 16(7) required the immediate release of the applicant, that date being the tenth day following the date on which the order for surrender was considered to take effect. There was no issue between the parties as to 7th January 2008 being the relevant date for this purpose.
In this particular case the Latvian Central Authority was notified on 13th December 2007 of the making of the order and of the period of fifteen days before which it would take effect. This was done by an official in the Department of Justice, Equality and Law Reform, acting as the Central Authority in the State.
By fax dated 28th December, 2007, the Department, again as the Central Authority in the State, reminded the Latvian Central Authority that the surrender of the applicant should take place within ten days of 28th December.
Again by fax dated 2nd January, 2008, the Department reminded the Latvian Central Authority that it should contact An Garda Siochána to make the necessary arrangements for the surrender of the applicant.
Despite the three communications between 13th December. 2007 and 2nd January, 2008, no response was received by the Central Authority in the State from the Latvian Central Authority.
On 3rd January 2008 the Department eventually sent an e-mail, marked urgent, to the Latvian Central Authority pointing out that the applicant, the subject of the order for surrender, “must now be collected by your Police Authorities by 07/01/2008”.
On the same date a response was received from the Latvian Central Authority which asserted, inter alia, that “due to national holidays (before New Year’s Eve and the following days), respective notification on granted surrender was received at this office only on 02.01.2008”. It went on to state that it would not be able “to collect the subject (with 7th January 2008 being the deadline) since there were tickets available for flights to Dublin only for 08, 09 and 10.01.2008”. The Latvian Central Authority indicated that for practical reasons, including the question of flight availability, it was not in a position to collect the applicant by 7th January 2008. The communication went on to state that a precise proposal for an alternative date would be communicated when it had exact flight details for arrival and departure. By e-mail dated 4th January 2008 the Department responded indicating that it had no objection to the extension of the deadline for the surrender of the applicant.
By e-mail dated the same date the Latvian Central Authority responded by stating that surrender could take place on 9th January, 2008, based on the availability of flights to and from Riga and Dublin.
The Department responded on the same date stating that the revised surrender date of 9th January was acceptable “to the Central Authority and An Garda Siochana”.
Before the surrender on the re-arranged date could take place the applicant obtained an order of the High Court directing an inquiry into the lawfulness of his detention pursuant to Article 40.4.2˚. He contended that his then detention was unlawful because of the failure of the State to release him from custody on the expiry of ten days from 28th December, 2007, the date on which the High Court order for his surrender took effect. It was also contended that the purported agreement between the two Central Authorities for surrender to take place at a later date was not a valid or lawful postponement of the surrender within the meaning of section 16(5)(b).
The hearing of the applicant’s application on the merits was held promptly and a judgment was delivered on 11th January, 2008. The Court dismissed the applicant’s application concluding that he was detained in accordance with law. The applicant appealed against that decision to this Court.
While that particular appeal was pending the applicant made a new and distinct application to the High Court for his release pursuant to Article 40.4.2˚ essentially on the grounds that s. 16(5)(b) of the Act of 2003 was unconstitutional. The High Court ruled that the said subsection was not invalid having regard to the provisions of the Constitution and that the applicant’s then detention was in accordance with law. The applicant also appealed against the decision of the High Court in that case but that appeal, which was not heard, would now appear to be moot.
High Court Judgment of 11th January 2008
For the purposes of the issues in this appeal there were two relevant issues decided by the High Court in this case: Rimsa v. Governor of Cloverhill Prison & the Minister for Justice, Equality and Law Reform [2008] IEHC 6, (Unreported, High Court, Hedigan J., 11th January, 2008).
In contending that the purported postponement was invalid as not complying with the provisions of s. 16(5)(b) the applicant had submitted that such postponement could only be agreed where it was “necessary” to do so and that in any event there were no reasonable grounds for such a postponement because there were seats available on the flights from Riga to Dublin on dates preceding the deadline date of 7th January. In those circumstances the Latvian authorities could, it was contended, readily have made arrangements for the surrender to be effected within the initial ten days envisaged by the Act. The applicant contended that para. (b) of s. 16(5) should be interpreted in the light of that portion of article 23(3) of the Council Framework Decision 2002/584/JHA of 13 June, 2002, on the European arrest warrant and the surrender procedures between Member States O.J.L 190/1 18.7.2002 (hereafter “the Framework Decision”) which only envisaged the postponement of a surrender beyond the initial period of ten days where surrender is “prevented by circumstances beyond the control of any of the member states”. So interpreted s. 16(5)(b) means that an agreement between the two authorities on a later date could only be entered into if it was necessitated by circumstances beyond the control of the two states concerned.
Having reviewed the evidence before him the learned trial judge concluded at p.4:-
“It seems reasonable to accept that during the new year holiday season seat availability might well be limited. I do accept this and, therefore, I accept there were grounds of necessity requiring the arranging of a later date.
Notwithstanding my finding in this regard, I do not think that s. 16(5) makes any requirement of necessity in order to ground an extension, although it is clear that the surrender should be effected as soon as possible. I do accept that the Framework Decision may be looked to in order to interpret the national legislation. To that extent paragraph 3 of Article 23 does provide that where the surrender of the requested person is prevented by circumstances beyond the control of any the Member States, there may be agreement on a new date and the surrender should take place within ten days of the new date. Nonetheless the national legislation does not make such a requirement of necessity. In any event, in the light of my finding above re availability of airline seats; there appears to have been an existence of such circumstances and, therefore, a necessity to postpone.”
The second issue relevant to this appeal and decided by the High Court relates to the argument made by the applicant, and referred to at p. 6 of the judgment of the learned High Court judge, to the effect that the Framework Decision has direct effect in certain circumstances which are present here. The basis on which that applicant had argued for direct effect in the High Court is not entirely clear. On those grounds, it was submitted that any agreement to postpone surrender to a later date must, as required by article 23 of the Framework Decision, be made between the judicial authorities of both the issuing state and the executing state and not, as provided in the Act of 2003, by the central authority in the State.
At p. 5 of his judgment the learned trial judge had noted that s. 16(5)(b) of the Act provides for a later date to be “agreed by the Central Authority in the State and the issuing state”. He added: “Thus, whilst that person in Ireland is the Minister for Justice, Equality & Law Reform, in relation to the issuing State no particular persons are specified.” He went on to note that it was clear from the documents before the Court that as a matter of fact it was the Central Authority of Latvia which entered into the agreement for the postponement of surrender with the Central Authority in Ireland.
In addressing the second issue referred to above the learned trial judge stated at p. 6:-
“In the first case, it seems clear to me that whereas the framework decision may well be referred to in order to clarify an ambiguity or assist in interpretation, it cannot be held to overrule the national legislation enacted to implement it. Article 34(2)(b) of the Treaty on European Union explicitly states that framework decisions shall not have direct effect.”
In this respect he cited from Denham J.’s judgment in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at p. 521 where she stated:-
“Thus, the Council framework decision does not have direct effect and is not part of the domestic law of this State. It is binding on the State as to the result to be achieved. It promotes common action by the states of the European Union to advance approximation of the laws in the states on specific issues. It is left to the national authorities to choose the form and method of implementation.”
He also cited Fennelly J. in the same case where he stated at p. 547:-
“These courts are bound to apply the provisions of Acts of the Oireachtas the framework decision does not have direct effect. Where a provision of an Act of the Oireachtas conflicts directly with a provision of a framework decision, this court must give preference to the former. To do otherwise would, to cite the language of the Court of Justice Criminal Proceedings against Pupino (Case C-105/03) [2006] QB 83 be contra legem.”
The learned trial judge then concluded at p. 7:-
“In this case s. 16(5)(b) explicitly specifies that the agreement on a different date is made by the Central Authority in the State and the issuing State. To hold that the agreement had to be made between the judicial authorities of the two States would be contra legem.”
Having regard to the foregoing conclusions and his findings on other points not pursued in the appeal before this Court, the learned High Court judge refused the applicant’s application.
The Appeal
The applicant’s appeal to this Court against the findings of the High Court was confined to two essential grounds. The first ground which I propose to refer to is the submission of the applicant that his detention was unlawful because the State had not entered into a valid or lawful agreement for the postponement of his surrender; the agreement in question was made between the central authorities of the two states in breach of Article 23 of the Framework Decision which requires that it be entered into between the judicial authorities of the two states concerned. During the course of the argument counsel relied on s. 10 of the Act as requiring the State to comply with article 23 of the Framework Decision.
The State in its submissions acknowledged that the Act of 2003 may be interpreted in the light of the Framework Decision but that the Act cannot be given a meaning contra legem. The State also acknowledged that once the ten day period provided for in s. 16(5) had expired, there was a mandatory requirement that the person concerned be released. The issue was, however, it was submitted, the date from which the ten day period ran. In this case it was submitted that there had been an agreement duly entered into between the relevant authorities pursuant to s. 16(5)(b) of the Act postponing the date for surrender to a later date and that the ten day period ran from that date. In this case the agreed postponed date was the 9th January, 2008, and the ten days ran from that date. Accordingly, the High Court was correct in determining that the applicant was then in lawful detention. It was submitted that the Framework Decision, unlike a directive, does not have a direct effect and even if a statute is in conflict with the Framework Decision effect must be given to the statute. It was further submitted that s. 10 itself is a provision that is entirely general in nature and a harmonious interpretation of that section with the remaining sections of the Act “does not override the general presumption that an issuing state is complying with a Framework Decision.” It was further submitted that on the facts as found by Hedigan J., that the Framework Decision does not prohibit the surrender of the applicant. In this case it was submitted that s. 16(5)(b), so far as Ireland was concerned, required the Central Authority in the State to agree on the postponed date. It also provided for that agreement to be entered into with the issuing state and it was a matter for the issuing state to determine the authority which could enter into the agreement. Accordingly, it was submitted that the agreement to postpone the surrender of the applicant was entered into in accordance with s. 16(5)(b) and that was sufficient. Moreover, it was submitted that so far as article 23 is concerned the Oireachtas is entitled to allow some discretion to the issuing state as to what constitutes a “judicial authority”, so this phrase in the Framework Decision cannot be regarded as imposing a requirement that only a court or judge must discharge a particular function.
The other ground raised by the applicant in the appeal concerned his submissions that the learned trial judge erred in law in determining, on the basis of the evidence before him, that there were reasonable grounds justifying the authorities in question entering into an agreement to postpone the surrender. It was also submitted that s. 16, interpreted in the light of article 23, meant that there must be grounds which necessitated such an agreement for postponement being entered into and the learned trial judge was incorrect, on the evidence, in concluding that there were such grounds.
In the light of the conclusions which I have reached in relation to the ground first mentioned above, I do not think it is necessary to deal with this latter ground.
Decision
The Act of 2003 (as amended)
I think it is convenient at this point to cite again the most relevant subsection of s. 16 of the Act of 2003, as amended:-
“(5) Subject to subsection (6) and section 18 , a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after—
(a) the order takes effect in accordance with subsection (3) (inserted by section 76 (d) of the Criminal Justice (Terrorist Offences) Act 2005), or
(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.”
Neither subs. (6) nor s. 18 are relevant to the issue in this appeal.
Subsection (7) then goes on to provide that “a person … who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.”
The reference to subsection (6) is not relevant to the issue in this appeal.
Accordingly, once the period of ten days after the order for surrender taking effect has expired it is mandatory that the person the subject of the order for surrender be released from custody unless a later date for surrender, has, in the terms of para. (b), been “agreed by the Central Authority in the State and the issuing state.”
This section is clearly intended to give effect to article 23 of the Framework Decision although it departs from it in a fundamental respect.
The Framework Decision
The relevant provisions of article 23 of the Framework Decision provide as follows:-
"1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.
2. He or she shall be surrendered no later than ten days after the final decision on the execution of the European arrest warrant.
3. If the surrender of the requested person within the period laid down on paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event the surrender shall take place within 10 days of the new date thus agreed.” [Emphasis added]
It will be noted that the Framework Decision requires that any agreement to postpone a surrender after the initial ten days provided for, must be one which is agreed upon by the judicial authorities of both the executing state and the issuing state.
Thus, there is a clear and manifest conflict between article 23(3) of the Framework Decision and s. 16(5)(b) of the Act of 2003, in that the latter expressly permits and requires any agreement by an authority in the State on a new surrender date to be agreed by the Minister, as the Central Authority in the State and not the executing judicial authority.
Section 9 of the Act of 2003 specifies that the High Court is the executing judicial authority in the State. That authority was at no stage involved in agreeing the postponed date.
At this point I think it is appropriate to refer briefly to the role conferred on the Central Authority of the member states by the Framework Decision.
Recital 9 of the preamble to the Framework Decision states “The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance.” [Emphasis added]
In giving substantive effect to that recital, article 7 of the Framework Decision provides that “Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities.” Paragraph (2) of article 7 then goes on to provide that “A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority (ies) responsible for the administrative transmission and reception for European arrest warrants as well as for all other official correspondence relating thereto.”
It may be seen therefore that the Framework Decision intends that the role of any central authority, which, in contrast to a judicial authority referred to in the Framework Decision, belongs to the executive arm of a state, is confined to assisting the competent judicial authority and may also, if necessary, have responsibility for the administrative transmission and reception of European arrest warrants and related official correspondence.
This limitation placed on the role of the central authorities of the member states, in contrast to that of a judicial authority, is of importance when one considers an objective of the Framework Decision, as set out at recital (5) of the preamble, is the establishment of an area, within the Union, of freedom, security and justice which would lead to the abolition of extradition between member states and replace it “by a system of surrender between judicial authorities.” [Emphasis added]
Recital (6) of the Framework Decision speaks of the measure being “…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.”
Recital (8) states: “Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that the judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender”.
Thus, as has been pointed out in several judgments of this Court concerning the application of the Act of 2003, mutual cooperation and recognition of judicial decisions between judicial authorities of the member states are fundamental to the operation of the new system of “surrender” on foot of the European arrest warrant.
As Fennelly J., stated in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at pp. 545-546:-
“The European arrest warrant is designed to operate fundamentally within a judicial process. This essential aspect of the procedure is not merely a recognition that its execution “must be subject to sufficient controls,” as is stated in the eighth recital but of the principle of legality. Persons cannot be surrendered compulsorily from one member state to another except in accordance with an open and transparent judicial procedure which guarantees respect for fundamental human rights.”
No doubt it is for the above considerations and with a view to achieving those objectives that any decision by agreement to delay the surrender of a requested person pursuant to judicial order beyond that ten day period, must, according to article 23, be made by the judicial authorities of the two states concerned and not by any administrative authority. By this means the Framework Decision ensures that any postponement of the date on which the surrender is due to take place on foot of a judicial order already made remains under judicial control. It also avoids any extension of a period of custody pending surrender being decided by the executive authorities as a form of administrative detention.
Interpretation of s. 16(5)(b) of the Act of 2003
The Act of 2003, as amended, is intended to give effect at national level to the Framework Decision. As this Court has frequently pointed out (see for example Minister for Justice v. Altaravicius [2006] 3 IR 148) when applying and interpreting the Act, the Court must do so in the light of the wording and purpose of the Framework Decision in accordance with the principles stated in Case C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285. Like a Directive, a framework decision is a legislative act of the European Union but, unlike a directive, it cannot, by virtue of community law, have direct effect since article 34(2)(b) of the Treaty on the European Union expressly excludes such effect.
In the Pupino case the Court of Justice stated, at para. 43, “When applying national law, the national court that is called on to interpret it must do so so far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b)(EU).”
That is a reference to that part of Article 34(2)(b) of the Treaty which provides that framework decisions “shall be binding on member states as to the result to be achieved …”
Moreover, in a reference to the principle of interpreting national law in conformity with a framework decision the Court of Justice stated, at para. 47:
“That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”
That interpretive principle only applies to the extent to which it is reasonably possible to interpret national legislation in conformity with the Framework Decision and does not require national legislation to be interpreted contra legem as the learned trial judge stated.
As pointed out earlier, it is manifest from the plain and express terms of article 23(3) of the Framework Decision that an agreement for postponement of the surrender to a later date must be agreed between (a) the executing judicial authority (which in this case is the High Court) and (b) the issuing judicial authority (which here is the “First Instance Riga Vidzeme Suburb Court of the Republic of Latvia,” as identified in the European arrest warrant in this case).
On the other hand, as has been seen, s. 16(5)(b) of the Act of 2003 excludes the High Court and permits a postponement of the date for surrender beyond the initial ten day period where that is agreed “(b) by the Central Authority in the State and the issuing state”. While that clearly requires the Central Authority in this State to enter into the agreement, the section does not specify what authority in the issuing state must agree to the postponement. It certainly does not specify that it be the Central Authority of the issuing state. The section does not, for example say ‘be agreed by the Central Authority in the State and in the issuing state’.
As the learned trial judge correctly pointed out at p. 5 of his judgment in relation to this phrase “Thus, whilst that person in Ireland is the Minister for Justice, Equality & Law Reform, in relation to the issuing State no particular persons are specified.”
Any such agreement obviously cannot be entered into in the abstract with the issuing state, but must be with some authority of that state.
In this regard the State had argued that para. (b) of , so far as Ireland was concerned, clearly authorises the Central Authority in the State to agree the new date for the surrender taking place and that to hold otherwise would be to interpret the section contra legem. I have no doubt that that is correct as concerns the Act.
The State went further and argued, that as concerns the authority in the issuing state with which the agreement may be entered into, the Oireachtas intended in s. 16(5)(b) that it would be a matter for the issuing state to decide which authority could enter into such an agreement. As a matter of fact the Latvian Central Authority decided to do so.
I do not consider that this attribution or presumption as to the intention of the Oireachtas is well-founded. On the contrary in my view the presumption must be that the section was intended to do what the Act expressly purports to do, namely to give effect to the terms of the Framework Decision.
The Act was adopted by the Oireachtas in order “to give effect to Council Framework Decision … on the European arrest warrant and the surrender procedures between Member States,” as is stated in the long title to the Act. That was the obligation of the State so as to ensure that surrender on foot of the European arrest warrant takes place in accordance with the Framework Decision.
The subsection in question falls to be interpreted as a matter of Irish law, in the light of the Framework Decision, and not as a matter of Latvian law. Its provisions involve the requirements of national law by which the State is bound.
Section 16(5)(b) of the Act of 2003 certainly does not specify the Central Authority or any authority in the issuing state as the authority with which an agreement for a postponed surrender date may be made. Faced with the silence of the subsection on that point the Central Authority here would have to ask itself whom does it contact in the issuing state where the question of agreeing a postponed surrender date arises. As a consequence of these proceedings the Court is required to answer that question. A reference to article 23 of the Framework Decision which s. 16 of the Act of 2003 seeks to implement, points to the judicial authority of the issuing state as being the only answer to that question. At the very least there is an ambiguity in the Act as to whether the reference to the “issuing state” permits the Central Authority in the State to enter into such an agreement with any authority in that state.
Any such an ambiguity, can, in my view, only be resolved by looking at the provisions of the framework decision in order to avoid, to the extent to which the language of the provision permits, “a result contrary to that envisaged by the framework decision” as stated at para. 47 in the Pupino case. Of course once one looks at the provisions of the Framework Decision, the manner in which that ambiguity should be resolved is obvious and permissible because of (i) the absence of a reference to any specified authority in the statutory provision and (ii) the express requirement in article 23(3) that any such agreement must be reached with the issuing judicial authority, which in this case is the Latvian Court referred to above. Such an interpretation also accords with the objectives of the Framework Decision namely a system of surrender, in lieu of extradition, designed to operate fundamentally within a judicial process, as Fennelly J., so aptly described it in the citation above from his judgment in Dundon v. Governor of Cloverhill Prison & the Minister for Justice, Equality and Law Reform.
Accordingly, even though para. (b) of s. 16(5) of the Act of 2003 expressly authorised the Central Authority in the State to reach an agreement on a new date for surrender, the agreement to do so could only be made by that Authority with the judicial authority of the issuing state, Latvia, as the subsection, properly construed, requires.
Since this was not done there was no valid or effective agreement to postpone the date of surrender within the meaning of section 16(5)(b).
It will be recalled that subs. (7) provides “a person … who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.” There were no such proceedings pending.
In reference to the time limit specified in s. 16 Geoghegan J., in Dundon at p. 539 cited with approval the following statement in the judgment of O’Sullivan J., in the latter’s High Court judgment in that case, where he stated:-
“The time limits specified for surrender after the final decision are in a different category, namely, they are mandatory in principle with the result that the requested person is intended to be released if they are not complied with.”
That dictum was obiter in that case but it is clearly a correct statement as to the meaning and effect of section 16(7).
There having been no valid agreement for the surrender of the applicant on a date after the expiry of the ten day period referred to he should have been released immediately on its expiry on 8th January, 2008.
Compliance by the State with the Framework Decision
There is however another argument advanced in relation to this issue. Section 10 of the Act of 2003, as amended, provides:
In this appeal the applicant submitted, relying on the case-law of this Court, that s. 10 rendered the Framework Decision directly applicably to arrest and surrender on foot of a European arrest warrant.
The words adopted by the Oireachtas in this section are very explicit. The Oireachtas expressly requires any arrest or surrender on foot of a European arrest warrant to be done not only in accordance with the Act but in accordance with the Framework Decision. It is of course entirely correct, as I have pointed out above, and this Court has pointed out many times, that a framework decision, unlike a directive in certain circumstances, is incapable, by virtue of community law, of having direct effect. That does not prevent the terms of the Framework Decision having an application at national level by virtue of an Act of the Oireachtas which the Act of 2003 does in a number of provisions of which s. 10 is one. Then its application is a consequence of national law not community law.
In Minister for Justice v. Altaravicius (cited above), I concluded that the section of the Act of 2003 relevant in that case was clear and did not require that a copy of the underlying domestic warrant be incorporated in the European arrest warrant or be attached to it, as the applicant in that case had contended. I then went on to state at p. 155:-
“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.” [Emphasis added]
Later in that judgment, at p. 156, I observed:- “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”.
In Dundon v. Governor of Cloverhill Prison (cited above) Fenelly J. also alluded to the direct application of the Framework Decision as provided for, not by community law, but by the Act of 2003, as amended. At page 547 he stated:-
“[Section] 16(1)(e) envisages that a person will be surrendered provided that, inter alia, “the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto)…
“Insofar as the statutorily permitted grounds of refusal to surrender go beyond the terms of article 1(3) of the framework decision, but are covered by its recitals, they are, nonetheless, expressly invoked by s.16(1)(e) of the Act.
Fennelly J. then went on to point out that the courts are bound to apply the provisions of Acts of the Oireachtas and that where the provisions of an Act of the Oireachtas conflict directly with a provision of the Framework Decision, the court must give preference to the former which could not be interpreted contra legem. He then however added at p. 547:-
“The precise contours and limits of the rights that can be invoked under the Act will have to be explored as cases arise. I am merely concerned to show that, while the 60 day period does not confer protection on individuals, there are other features of the framework decision, at least as that measure is implemented in Irish law, upon which reliance may be placed by individuals in appropriate cases.”
So far as this case is concerned s. 10 of the Act of 2003 expressly requires that the surrender of the applicant in this case be done not only and in accordance with the Act but, additionally, in accordance with the Framework Decision. An individual must be able to rely on such provisions of the Framework Decision at least so far as that measure is made applicable in Irish law by the Act itself. If it were otherwise it would render the express reference to the Framework Decision in s. 10 meaningless.
Accordingly the applicant was entitled to place reliance, pursuant to s. 10, on the provisions of the Framework Decision which applied to his surrender to the issuing state, Latvia.
In my view article 23.3 of the Framework Decision is clearly an article which governs the surrender of a person on foot of a European arrest warrant. Accordingly by virtue of s. 10 of the Act of 2003 the Central Authority, in assisting and giving effect to the order of the court for surrender, was under a duty to do so in accordance with the provisions of the Framework Decision, as s. 10 expressly provides.
While the entering into an agreement with the Latvian authorities by the Central Authority in the State was in conformity with sections 16(5)(b) it was in direct conflict with the provision of Article 23.3 and therefore not in accordance with s. 10 of the Act of 2003.
It was rather belatedly accepted, during the course of the hearing, on behalf of the Central Authority, that there was a direct conflict between the provisions of article 23(3) and those of s. 16(5)(b) which failed to properly give effect to the Framework Decision. If the Central Authority had acknowledged from the outset that obvious conflict, this litigation would probably have been resolved at a much earlier stage or indeed rendered unnecessary.
It is also somewhat disconcerting that the Central Authority, even if it was of the view that it complied with the provisions of the statute, would nonetheless persist with the surrender pursuant to purely administrative arrangements which were manifestly in conflict with the legal obligations imposed on the State by virtue of article 23 of the Framework Decision.
The issues in this case have been complicated by the fact that the Act has been drafted in such a way as to apply two legal norms to the same matter. In this instance s. 16(5)(b) of the Act and article 23(3) of the Framework Decision are both applicable to the matter of agreeing a postponed surrender date. In Altaravicius the two applicable norms were s. 11 of the Act and article 8 of the Framework Decision. In that case I referred to this manner of legislating, in restrained language, as “idiosyncratic”. It is a most unsatisfactory way of legislating and I still consider that I am expressing myself in restrained terms. Framework decisions, as their name suggest, are legislative measures drafted in terms which range from the general to the specific, intended to be effectively implemented by each member state through its own national legislative measures as article 34(2((b) of the Treaty on European Union makes clear. In principle therefore it is national legislation which must give effect to the framework decision and achieve its objectives. That will usually mean that the provisions of the Acts of the Oireachtas themselves contain all the elements necessary to give effect to a framework decision. That would not preclude, however, an Act expressly requiring something to be done in accordance with a specific provision of a framework decision particularly, where such a provision is sufficiently clear and defined so as to be capable of being enforced or applied by a Court.
That might be done provided a section of the Act itself does not at the same time, and in parallel with the particular provision of the framework decision, purport to give effect to the latter provision so as to ensure that there is only one legal norm or provision applying to a particular matter.
What is unsatisfactory and has given rise to litigation, and is likely to do so in the future, is the fact that a provision of a framework decision and a specific section or part of an Act are both applicable to and govern a particular matter at the same time or in parallel.
Even where that is done so as to ensure that the provision in an Act is, at least on its face, in harmony with the applicable provision of the framework decision it means nonetheless that the Court has to interpret and apply two legal norms, as happened in the Altaravicius case.
Such a situation is then exacerbated of course when there is a manifest divergence between the express terms of an Act and the express terms of a framework decision, as has happened in this case.
For the reasons set out above, the Central Authority in the State in entering into the agreement to postpone the date for surrender, rather than taking steps to ensure that there was agreement between the two respective judicial authorities as article 23(3) of the Framework Decision requires, failed to act in accordance with the requirements of s. 10 of the Act. This is in addition to the earlier conclusion that the agreement was also contrary to s. 16(5)(b) insofar as it was made with the Central Authority of Latvia rather than the Latvian judicial authority as identified in the arrest warrant.
It is for the reasons set out in this judgment that I have concluded that there was no valid agreement to postpone the date of surrender pursuant to s. 16(5)(b) of the Act and that therefore the applicant’s continued detention was unlawful.
