Supreme Court dismisses appeal; 60-day surrender deadline failure does not grant automatic release rights.

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION AND OF THE HABEAS CORPUS ACT, 1782

BETWEEN

KENNETH DUNDON

Applicant/Appellant

and

GOVERNOR OF CLOVERHILL PRISON

Respondent

and

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Notice Party

JUDGMENT of Mr. Justice Fennelly delivered the 19th day of December, 2005

1. The Court is agreed that this appeal should be dismissed. I wish to explain why I agree with the reasoning underlying the judgment

of Geoghegan J. I also wish to demonstrate that inability to obtain immediate release upon expiry of the sixty-day period specified in

the Framework Decision does not, by any means, signify that an arrested person is unable to invoke full and appropriate protection of

personal and human, (including constitutional) rights, which it is the duty of these courts to vindicate.

2. I agree specifically with the judgment of Geoghegan J that the Appellant is not entitled to be released by reason of the failure of

the Court to order his surrender to the issuing state within the sixty-day period mentioned in the European Arrest Warrant Act 2003

and the Framework Decision.

3. I reach this conclusion by an interpretation of the Act of 2003 in the light of the Framework Decision. It is clear, as Geoghegan J

points out in his judgment, “that subsections (10) and (11) of section 16 of the 2003 Act are intended to be implementations of

Article 17 of the Framework Decision.”

4. It is a well-established principle of European Community law that the courts of the Member States are under an obligation when

interpreting any national law introduced for the purposes of implementing a directive “to interpret [the] national law in the light of the

wording and purpose of the directive in order to achieve the result…” to be achieved. (Case 14/83 Von Colson and Kamann v Land

Nordrein-Westfalen [1984] E.C.R. 1891, paragraph 26). The Court of Justice states that this principle may apply to national laws

whether passed before or after the relevant directive. (Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.)

5. The stated justification for this principle is a combined reading of Article 249 (formerly Article 189) of the Treaty Establishing the

European Community (“EC Treaty”), under which directives are binding on Member States “as to the result to be achieved” and Article

10 (formerly Article 5) of the EC Treaty under which Member States are under a duty “to take all appropriate measures, whether

general or particular, to ensure fulfilment of the obligations arising under this Treaty or resulting from actions of the institutions of

the Community.” The Treaty on European Union (“TEU”) contains no provision corresponding to Article 10EC. As Denham J explains in

her judgment, the Framework Decision was adopted under Title VI of that Treaty: it is a so-called “third-pillar” measure. By reason of

the absence from the TEU of any provision corresponding to Article 10EC, a number of Member State governments, in Case C-105/03

Criminal proceedings against Maria Pupino (judgment delivered on 16th June 2005), disputed the applicability of the principle of

“conforming interpretation” The expression is a poor translation of the French: interpretation conforme) to the interpretation by

national courts of national laws passed in order to implement Framework Decisions adopted pursuant to Title VI. The Court of Justice

rejected these arguments. It held (see paragraph 42 of the judgment):

“It would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular

that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations

under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is

moreover entirely based on cooperation between the Member States and the institutions……”

6. The Court thus concluded:

“When applying national law, the national court that is called upon to interpret it must do so as 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.”

7. Article 34(2)(b) of the Treaty on European Union provides that Framework Decisions “shall be binding on Member States as to the

result to be achieved…” It is the “third-pillar” provision which corresponds, therefore, with Article 249 of the EC Treaty. It follows, as

I will explain, that the Act of 2003 as a whole and section 16, subsections (10) and (11) in particular should be interpreted “as far as

possible in the light of the wording of the purpose of the framework decision in order to attain the result which it pursues……” I see

no reason why that principle cannot be applied in this case. It is true that the Court of Justice, in Pupino and earlier cases,

recognised certain inherent limits to the principle of “conforming interpretation.” In particular it would not apply, when the “national

law ……cannot receive an application which would lead to a result compatible with that envisaged by that framework decision.” It

explained that “the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra

legem.” I do not believe that it would be contra legem, as that expression is used in the Pupino judgment, to interpret the Act of

2003 in the light of the Framework Decision. That principle applies whichever of the alternative interpretations of Article 17.3 of the

Framework Decision is correct. On the one hand, if Geoghegan J is correct, as I believe he is, in holding that it does not confer such a

right, there is no problem of inconsistency. On the contrary hypothesis, that the Framework Decision, properly interpreted, does

confer such a right, it would seem clear that the Act of 2003 could not be interpreted so as to deprive an arrested person of that

right. The Court of Justice also stated in Pupino:

"That principle [of conforming interpretation] 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." (emphasis added).

8. As I have stated at the outset, for the reasons given by Geoghegan J, I do not believe that the Appellant can derive any right to

be released at the end of the sixty-day period from either the Act of 2003 or from the Framework Decision.

9. As I have said, I also wish to discuss the rights of arrested persons in general. It does not follow that persons arrested pursuant to

a European Arrest Warrant are unable to invoke protection of substantive and procedural rights, merely because there is no automatic

right to release after sixty days.

10. It has to be acknowledged, at once, that the legislation presents unusual problems of interpretation. The European Arrest Warrant

is itself a novel instrument. It was adopted in the wake of the devastatingly tragic events of 11th September 2001. The drafting is

extraordinarily loose and vague, particularly in the manner in which offences are defined. The Court, on this appeal, has to consider

an Act of the Oireachtas which implements a Framework Decision adopted pursuant to the provisions of Title VI of the Treaty on

European Union. However, Ireland has not made the declaration which is necessary under Article 35 TEU before the Court of Justice

can exercise the interpretative jurisdiction envisaged by that Article. Hence, this Court decides this question without any guidance

from that Court. The Court of Justice may, of course, be asked, on a reference from another Member State, to rule on the

interpretation of the sixty-day period.

11. In circumstances where the Framework Decision and the 2003 Act are intended to abolish all existing extradition arrangements

between the Member States of the European Union and to substitute a new and expeditious system of surrender, obvious questions

arise concerning the extent of protection of the rights of arrested persons.

12. 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.

13. As is pointed out in the judgment of Geoghegan J, Article 1(3) of the Framework Decision provides:

“This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental

legal principles as enshrined in Article 6 of the Treaty on European Union.”

14. This is the only substantive provision dealing with fundamental rights and it provides no further guidance as to how that respect is

to be effected. In addition, there are a number of relevant recitals in the preamble to the Framework Decision. Not all of these recitals

are precisely reflected in the provisions of Article 1(3). The recitals are cited by Geoghegan J. I need not set them out in detail, but

they cover, in addition to the matters mentioned in Article 1(3):

· The Charter of Fundamental Rights of the European Union;

· The possibility of refusal to surrender where there is reason to believe that the warrant is issued in pursuit of discrimination on

a number of listed impermissible grounds;

· The constitutional rules of a Member State relating to due process, freedom of association, freedom of the press and freedom

of expression;

· Refusal to surrender based on risk of subjection to death penalty, torture or other inhuman or degrading treatment or

punishment.

15. A difficult question of interpretation of the Framework Decision might arise concerning reliance by a national court on such of

these provisions as is merely declaratory and not reflected in Article 1(3). As already stated, the Court of Justice has, in the case of

Pupino, cited above, held that national courts are bound to interpret rules of national law “so far as possible, in the light of the

wording and purpose of the Framework Decision.”

16. This interpretative obligation is not affected by the absence, in the case of Ireland, of a power to refer questions for preliminary

ruling to the Court of Justice. Article 35(4) ensures that Member States who have not made a declaration may, nonetheless,

participate in proceedings on references from the courts of other Member States. Article 35(7) gives the Court of Justice jurisdiction

to interpret the Framework Decisions in disputes between any Member States.

17. This Court is required to interpret and apply the Act of the Oireachtas which implements the Framework Decision. It is notable, in

this respect, that 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).” (Emphasis added). Section 37, which is in Part

3 of the Act, prohibits any surrender which would be incompatible with rights variously based on the European Convention on Human

Rights or its Protocols and, most importantly, that it would “constitute a contravention of the Constitution.”

18. 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 section 16(1)(e) of the Act. Furthermore, the Act

prohibits any surrender which would contravene any provision of the Constitution. It would not be possible, by reference to the

obligation to interpret in conformity with the Framework Decision, to ignore these provisions: such an interpretation would be “contra

legem.” These courts are bound to apply 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 in Pupino, be contra legem.

19. The precise contours and limits of the rights which can be invoked under the Act will have to be explored as cases arise. I am

merely concerned to show that, while the sixty-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.