Supreme Court allows appeal dismissing respondent's right to request domestic warrant on EAW request.

THE SUPREME COURT

[S.C. No. 446 of 2005]

Murray C.J.

Denham J.

Hardiman J.

Between/

The Minister for Justice, Equality and Law Reform

Plaintiff/Appellant

and

Valdemaras Altaravicius

Defendant/Respondent

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

1. This appeal raises a preliminary net point for decision, the issue is whether a person is entitled simply on request to the domestic

warrant on foot of which a European Arrest Warrant has been issued.

2. In this case a European Arrest Warrant has been received in Ireland from Lithuania regarding Valdemaras Altaravicius.

3. The European Arrest Warrant was endorsed for execution on the 5th April, 2005, and Valdemaras Altaravicius, the respondent

herein and hereinafter referred to as ‘the respondent’, was arrested on foot of the warrant on the 15th April, 2005. Later that day the

respondent was brought before the High Court where, evidence having been given as to the arrest, he was released on bail pending

the hearing under s. 16 of the European Arrest Warrant Act, 2003, as amended. The respondent raised points of objection and

adjournments were granted at the request of the respondent. Constitutional issues were also raised.

4. By letter dated the 25th October, 2005, from the solicitors for the respondent, a copy of the original Lithuanian Court order

referred to in paragraph (b) of the European Arrest Warrant was sought.

5. When the case came on for hearing on the 27th October, 2005, the respondent sought an order from the High Court directing that

the Minister for Justice Equality and Law Reform make discovery of the domestic warrant from Lithuania. Judgment was reserved.

6. On the 29th November, 2005, the High Court made an order directing that prior to the hearing of the application under s.16 of the

Act of 2003 for surrender of the respondent: (i) a copy of the domestic warrant be produced to the High Court; and (ii) a copy of the

warrant be furnished also to the respondent.

The learned High Court judge referred to the submission on behalf of the respondent that while there is a presumption contained in

s.4A of the Act of 2003, as amended, to the effect that it is to be presumed that the issuing State will comply with the requirements

of the Framework Decision, it is a rebuttable presumption given the words which follow the statement of the presumption, namely,

‘unless the contrary is shown’. Thus, it was submitted, that since the onus is on the respondent to discharge the presumption he

must, as a matter of fair procedures, be entitled to see a copy of the domestic warrant so that he can consider whether the

presumption can be rebutted.

The learned High Court judge referred to the terms of s. 4A of the Act of 2003, as amended, and noted that it referred to a

rebuttable presumption. The learned High Court judge was of the view that it would be a reasonable requirement that a copy of the

domestic warrant should be available at least to the Court, even if the requesting State does not see fit to attach a copy to the

European Arrest Warrant.

The learned High Court judge made reference to constitutional rights of the respondent and to duties of the Court and stated:

“. . . the Court should have available to it at the least a copy of the underlying warrant, and that if that be so, fair procedures

and natural justice would dictate that a copy should be furnished to the respondent. In this regard Recital (12) to the

Framework Decision specifically states that a Member State may apply its own constitutional rules as to due process.

Since these considerations are likely to apply in all cases, it would seem to follow that in each case a copy of the underlying

domestic warrant should either accompany the European arrest warrant or at least be available to the respondent and to the

Court in sufficient time prior to the hearing of the application for the order for surrender. If that is done, it will obviate the need

for an application for discovery. It is the case also, if I am correct about the Court’s duty to ensure [that the European Arrest

Warrant is “duly” issued, that even if the respondent fails to satisfy] the Court of the relevance and necessity for the

production of the domestic warrant for the purpose of any issue raised by him by way of Points of Objection, his natural justice

right to a copy of same would nevertheless be difficult to overlook.

In these circumstances I am content to deal with the matter not on the basis of a discovery application, but on the basis that

a copy of the warrant is something to which the respondent is entitled, should he express a wish to be provided with same.

In any event, I fail to see why the furnishing of a copy of the underlying domestic warrant should be something to which such

objection is being taken by any requesting state. It can serve only to undermine the “high level of confidence” between Member

States referred to in Recital (10) to the Framework Decision.”

7. The Minister for Justice Equality and Law Reform has appealed against the said decision. Eight grounds of appeal were filed, as

follows:

“1. The learned High Court Judge erred in law in directing that a copy of the said Lithuanian Arrest Warrant be produced to the

Court prior to the hearing of the Application for the surrender of the Respondent to the Republic of Lithuania for the purposes of

trial under a European Arrest Warrant received from that State.

2. The learned High Court Judge erred in law in concluding that, in every case where the surrender of a person to another state

is sought on foot of a European Arrest Warrant, the underlying domestic arrest warrant in the requesting state must either

accompany the European Arrest Warrant sent to the Central Authority in the State or be made available to the High Court prior

to an application by the Appellant under Section 16 of the European Arrest Warrant Act, 2003 (as amended).

3. In so deciding the learned High Court Judge erred in law in concluding that, in order for the High Court to be satisfied that

the surrender of a person whose rendition is sought by another state on foot of a European Arrest Warrant is not prohibited by

Part 3 of the European Arrest Warrant Act 2003 (as amended), it is necessary in every case for the High Court to have

available to it a copy of the domestic arrest warrant issued in the requesting state and on foot of which the relevant European

Arrest Warrant is issued.

4. The learned High Court Judge erred in law in concluding that constitutional justice and fair procedures required the production

of the underlying domestic warrant prior to the hearing of the Application seeking he surrender of this Respondent to Lithuania

under Section 16 of the European Arrest Warrant Act, 2003 (as amended).

5. In directing the production of the underlying domestic warrant in this case, where no evidence was put before the Court

which would suggest that the European Arrest Warrant from the Republic of Lithuania was issued in breach of the requirements

of the Framework Decision (‘the European Council Framework Decision of 13th June 2002 on the European Arrest Warrant and

the surrender procedures between member states’) or the Framework Decision as implemented by the Republic of Lithuania, the

learned High Court Judge erred in law.

6. In directing the production in this case of the said underlying domestic arrest warrant, the learned High Court Judge failed to

take any account of:

(a) the provisions of Article 1.2 of the Framework Decision which provides that member states ‘shall execute any

European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the

Framework Decision’;

(b) the provisions of Section 4A of the European Arrest Warrant Act, 2003 (as amended) which provides that it ‘shall be

presumed that an issuing state will comply with the requirements of the Framework Decision unless the contrary is

shown’;

(c) the presumption which underlies extradition treaties and legislation, such as the Framework Decision and the European

Arrest Warrant Act 2003 & 2005, that states who are parties to such treaties or extradition arrangements with Ireland

(such a the Republic of Lithuania) will act in good faith.

7. The learned High Court Judge erred in law in failing to consider whether there was any evidence before him which would

suggest that the authorities in the Republic of Lithuania had failed to comply with the requirements of the Framework Decision in

issuing the European Arrest Warrant in respect of this Respondent.

8. In particular the learned High Court Judge erred in law in failing to consider whether there was any evidence before him which

could reasonably raise any concerns as to the validity of the arrest warrant issued for the Respondent in the District Court of

the Kedainiai Region in Lithuania on the 8th of February 2002.”

8. Oral and written submissions were made on behalf of the parties. On behalf of the Minister it was submitted that the domestic

warrant of the requesting State is not a necessary proof prior to an order under s.16 of the Act of 2003, that the effect of the order

of the High Court is to graft on to the statute an additional proof in every case, which the Oireachtas had not deemed necessary. On

behalf of the respondent submissions were made reiterating the argument before the High Court and submitting that the order of the

High Court was correct.

9. The European Arrest Warrant contains several sections relevant to this preliminary issue. It commences as follows:

“This warrant has been issued by a competent judicial authority – the Prosecutor General’s Office of the Republic of Lithuania.

I, Deputy Prosecutor General Ms. Vaida Urmonaitë, request that the person mentioned below be arrested and surrendered for

the purposes of conducting a criminal prosecution.”

Paragraph (b) states:

“Decision on which the warrant is based:

1. Arrest warrant or judicial decision having the same effect: Ruling of 8 February 2002 made by District Court of

Keëdainiai Region.

Type: arrest warrant.

2. Enforceable judgement: to arrest

Reference: 66-1-01395-01.”

Paragraph (i) states:

“The judicial authority which issued the warrant:

Official name: The Prosecutor General’s Office of the Republic of Lithuania.

Name of its representative: Ms. Vaida Urmonaitë

Post held: (title/grade): Deputy Prosecutor General

File Reference: 14.3.-365”

There follow phone, fax and other contact details.

The warrant relates to one suspected offence, it is stated that the applicant on the 28th December, 2001, acting with a group of

accomplices, using mental coercion or physical violence against two named juveniles, stole a mobile phone. The offence is described

as a robbery, which may be punished by imprisonment for a term up to six years.

10. Law

Section 4A of the Act of 2003, as inserted by s. 69 of the Criminal Justice (Terrorist Offences) Act 2005, provides:

“4A - It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the

contrary is shown.”

Article 8 of the Framework Decision provides that the arrest warrant shall contain information set out in the form contained in the

annex. This includes paragraph 8(c) which requires evidence of an enforceable judgment, an arrest warrant, or any other enforceable

judicial decision having same effect, coming within the scope of Article 1 and 2.

Section 11(1A) of the Act of 2003, as substituted for s. 1(1) by s.72 (a) of the Act of 2005, to give effect to that Article provides,

at paragraph (e) thereof, in respect of Article 8 (c), that the European Arrest Warrant shall specify:

“that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant for his or her

arrest or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of the

offence.”

The court has a discretion to require additional documentation or information. This is provided for in s. 20(1) which states:

“In proceedings to which this Act applies the High Court may, if of the opinion that the documentation or information provided

to it is not sufficient to enable it to perform its functions under this Act, require the issuing judicial authority to provide it with

such additional documentation or information as it may specify, within such period as it may specify.”

The European Arrest Warrant should be interpreted in accordance with the Act of 203, as amended, and in accordance with the

Framework Decision.

11. The Council Framework Decision of the 13th June, 2002, on the European Arrest Warrant, intended to change the existing

extradition procedures between the Member States of the European Union and to replace it with a simple process based on the

transfer of persons on foot of a European Arrest Warrant. The European Arrest Warrant Act, 2003 is an Act to give effect to the

Council Framework Decision of the 13th June, 2002, on the European Arrest Warrant and the surrender procedures between Member

States. This Act established in Ireland new procedures for the rendition of persons between Member States of the Union. It was

intended to simplify the procedures. Section 10 of the Act of 2003 provides that where a judicial authority in an issuing State duly

issues a European Arrest Warrant in respect of a person, against whom that State intends to bring proceedings for the offence to

which the European Arrest Warrant relates, or on whom a sentence of imprisonment or detention has been imposed and who fled from

the issuing State before he or she commenced or completed the sentence, that person shall, subject to and in accordance with the

provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing State.

The Act of 2003 sets out what should be in the European Arrest Warrant. The whole process is hinged on the European Arrest

Warrant. It is a development from international co-operation at governmental level to international co-operation between the

judiciary. It is part of a growth in the European Union of the concepts of mutual trust and judicial co-operation.

12. Neither the Framework Decision nor the Act of 2003, as amended, explicitly requires the production of the domestic warrant.

Indeed, to the contrary, the system established is for a single warrant, the European Arrest Warrant. There is a presumption that the

requesting State will comply with the Framework Decision. This presumption lies ‘unless the contrary is shown’: see s. 4A of the Act of

2003, as amended. While it is open to a respondent to adduce evidence, to raise grounds, to show that the requesting State has not

complied with the Framework Decision, under the Framework Decision and the Irish Statutory scheme there is a presumption that

what is set out in the European Arrest Warrant is accurate and that the requesting State is acting in good faith.

13. In effect the applicant seeks to turn this presumption on its head and, rather than the Court proceeding on the European Arrest

Warrant and the presumption, require that this document be furnished in addition from the requesting State. The submission on behalf

of the respondent, that while the presumption exists he bears the burden of rebutting it and so should be furnished with the

documentation from the requesting State, is ingenious, but contrary to both the Framework Decision and the Act of 2003. The

European Arrest Warrant represents a scheme for rendition, intended to be simple and intended to be on foot of a single warrant, the

European Arrest Warrant, and not a national warrant. Consequently, as a matter of first principles relating to this system, I am

satisfied that the respondent is not entitled on a simple request to be furnished with the domestic warrant.

A presumption is what it says it is, it is presumed that the document is in order. The presumption may be rebutted, but the Court

starts with the presumption that the document is in order. The presumption stands until something to the contrary is shown. A person

may seek to rebut the presumption, however it is for that person to present legal reasons or evidence as to why the presumption

should be rebutted. Consequently I would answer the preliminary question in the negative.

14. Such an approach does not bar the respondent from making a case against his rendition. Nor does it bar the Court from

considering whether on the face of a specific European Arrest Warrant there are facts or law, or a mixed question of law and fact,

which would require that further documentation be furnished to the Court and to the respondent.

15. The Court has a discretion under this Scheme. Article 15.2 of the Framework Decision provides for such a discretion, if the

executing judicial authority finds the information from the issuing Member State be insufficient to allow it to decide on the surrender.

It shall request that the necessary supplementary information be furnished as a matter of urgency.

Section 20 of the Act of 2003 specifically provides that in proceedings to which the Act applies the High Court may, if of the opinion

that the documentation or information provided to it is not sufficient to enable it to perform its functions under the Act, require the

issuing judicial authority to provide it with such additional documentation or information as it may specify. This gives a statutory

discretion to the court which is as broad as the courts functions under the Act.

In addition, the courts have an inherent power to protect the constitutional rights of a person sought to be surrendered. This includes

the protection of fair procedures.

16. Thus, the court has powers and duties to enable it make decisions pursuant to the Act of 2003, as amended, and the Framework

Decision, and the Constitution, to protect the rights of a requested person, and to protect the due process.

17. In the absence of evidence raising any or any reasonable grounds to query the statements in the European Arrest Warrant in

relation to the domestic warrant neither the Framework Decision, the legislation nor the Constitution require that the respondent be

provided with the domestic warrant in order to go on a fishing expedition to see if there is material to form an attack on the validity of

the European Arrest Warrant.

18. The discretion provided for under s.20 of the Act of 2003, as amended, has not yet been sought and has not been exercised by

the High Court in this case. It remains open to the respondent to make such an application pursuant to s.20 on the s.16 hearing.

19. While there were submissions on the issue of discovery in the High Court, the High Court did not base its decision on principles of

discovery. There was no appeal or cross-appeal on this issue. Consequently the concept of discovery forms no part of this decision.

20. The learned High Court judge relied to some extent on dicta from Finlay Geoghegan J. in The Minister for Justice, Equality and Law

Reform v. Michael Fallon, unreported, the High Court, 9th September, 2005. I will await consideration of that decision until a later

date. However, I agree with Murray C.J. that the case is quite different from the present case.

21. An issue may arise at a later stage in this case as to whether the warrant was issued by a judicial authority. I am satisfied that

that issue is best considered at first instance by the High Court.

22. Conclusion

For the reasons given I would allow the appeal. The issue for decision is whether an applicant is entitled simply on request to the

domestic warrant on foot of which a European Arrest Warrant has been issued. The High Court held that such a domestic warrant

should be available in all cases. This ruling would mean that the domestic warrant would be a proof available in all cases, although it is

not a legal requirement under the Act of 2003 or the Framework Decision. I am satisfied that the respondent is not entitled to, on

request, a copy of the domestic warrant on foot of which a European Arrest Warrant has been issued. This decision has no bearing on

any exercise of discretion by the High Court pursuant to s. 20(1) of the European Arrest Warrant Act, 2003, or otherwise.

The European Arrest Warrant is a new scheme introduced with the intent of simplifying the procedures of rendition between the

Member States. In the new procedure the European Arrest Warrant is the fundamental document, with discretion given to the Court

to seek further documents. There is a presumption that the underlying documents are in order. The Court so approaches the

European Arrest Warrant. A person may seek to rebut the presumption, which he is entitled to do. However, the Court is not required

to go behind the presumption merely on a request, where nothing has been shown, to enable the person go on a ‘fishing expedition’ as

to a document in the requesting State.