Court allows appeal and orders release of appellant as extradition under revoked 1965 Act was invalid.

IN THE MATTER OF PART II OF THE EXTRADITION ACT, 1965

BETWEEN/

THE ATTORNEY GENERAL

APPLICANT/RESPONDENT

-AND-

ANTHONY ABIMBOLA

RESPONDENT/APPELLANT

AND IN THE MATTER OF ARICLE 40.4 OF THE CONSTITUTION

AND IN THE MATTER OF THE HABEAS CORPUS ACT, 1782

[462/06]

BETWEEN/

ANTHONY ABIMBOLA

APPLICANT/APPELLANT

-AND-

THE GOVERNOR OF CLOVERHILL PRISON, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of MR. JUSTICE FENNELLY delivered the 28th day of November, 2007

These two appeals arise from a request made by the Federal Republic of Germany (hereinafter “Germany”), pursuant to Part II of the

Extradition Act, 1965, as amended, for the extradition of the above-named Appellant to that country. He is wanted there to serve a

sentence of five and a half years imposed upon conviction for rape.

The facts of the case straddle the period of entry into force of the European Arrest Warrant Act, 2003 (hereinafter “the Act of

2003”). The Appellant claims that the German request ceased to be effective when the Minister for Foreign Affairs made a statutory

order revoking the application of the Part II of the Act of 1965 to Germany. It is not disputed that a European arrest warrant might be

issued seeking the surrender of the Appellant to Germany pursuant to the 2003 Act, but those procedures have not been invoked to

date.

The Court must decide whether the Appellant can be lawfully extradited to Germany in pursuance of the request made pursuant to

the Act of 1965. It is common case that, if he cannot, his present detention is unlawful and he must be released.

Extradition Act, 1965

Part II of the Act of 1965 provides for extradition pursuant to international agreements or conventions between states of persons

whose surrender is sought for prosecution or punishment in another state. It has been superseded by the Act of 2003, so far as the

Member States of the European Union are concerned.

Section 8(1), in its original version, provided that, where the state is party to such an agreement or convention, the Government

“may by order apply this Part in relation to that country.” As amended by section 49 of the Act of 2003, section 8 confers that power

on the Minister for Foreign Affairs, after consultation with the Minister for Justice, Equality and Law Reform.

Section 8(6) provides, as amended by the Act of 2003, that the “Minister for Foreign Affairs [after similar consultation] may by order

revoke or amend an order under this section.” Section 8(7), which is the central provision for the purposes of the present appeal,

provides:

“On the revocation of an order applying this Part in relation to a country, this Part shall cease to apply in relation to that

country.”

Part II of the Act of 1965 contains the procedures for surrender of persons to countries in relation to which the Government (and now

the Minister for Foreign Affairs) has made orders applying that Part. The basic provision is section 9:

“Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded

against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person

shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.”

Section 25 specifies the documents which must accompany a request for extradition made pursuant to section 9. No issue arises in

the present case regarding the sufficiency of those documents, though the Appellant makes one point concerning delay in furnishing

information. Section 26(3) provides:

“If the Minister is of opinion that the information communicated to him in pursuance of section 25 is insufficient, he may

request the requesting country to furnish such further information as he thinks proper and may fix a time-limit for the

receipt thereof.”

Section 26(1), as substituted by section 7 of the Extradition (Amendment) Act, 1994, obliges the Minister, having received a request

for extradition pursuant to that Part, to certify that fact. That section, as amended by section 20 of the Extradition (European Union

Conventions) Act, 2001, provides that a judge of the High Court, upon production of such a certificate “shall issue a warrant for the

arrest of the person concerned.”

The Government, by S.I. 323 of 1976, applied Part II of the Act of 1965 to Germany. That Order was replaced by other orders, from

time to time, to similar effect. The most recent was the Extradition Act, (Application of Part II) Order, 2000. S.I. No. 474 of 2000.

On 31st August, 2004, by the European Arrest Warrant Act (Designated Member States) (No.6) Order, 2004: S.I. No. 532 of 2004,

the Framework Decision on the European Arrest Warrant was applied to Germany.

On 24th November, 2004 S.I. No. 474 of 2000 was amended by the Extradition Act, 1965 (Application of Part II) (Amendment) (No.2)

Order, 2004, S.I. No. 725 of 2004, (hereinafter S.I. 725) made by the Minister for Foreign Affairs. Article 2 of S.I. 725 substitutes a

new Article 3 in the Order of 2000 as follows:

“Subject to paragraphs (3) and (4) of this Article and Article 4 of this Order, Part II of the 1965 Act shall apply in relation

to countries set out in the Table…other than a Member State…designated …under section 3 of the European Arrest

Warrant Act, 2003……” (emphasis added).

The effect of this provision was that Part II of the Act of 1965 ceased to apply in relation to Germany.

The facts

On 3rd September 2003, a request from Germany for the extradition from Ireland to Germany of “the Nigerian national Anthony

Abimbola alias Tony (Anthony) Joel” was communicated to the Department of Foreign Affairs by means of a diplomatic Note Verbale.

The request was accompanied by a number of documents, including official copies and translations of German court documents,

showing that the Appellant had been convicted by the Regional Court of the City of Dortmund on 25th October 2000 of the crime of

rape and sentenced to imprisonment for a term of five years and six months.

The Department of Foreign Affairs made a request for further information pursuant to section 26(3) of the Act of 1965. By further

Notes Verbale of 20th January and 2nd February 2004, the German Embassy furnished copies of relevant parts of the German Criminal

Code and information confirming that the Appellant had been present at his trial but had fled to the Netherlands prior to judgment.

On 7th June, 2006, the Minister for Justice, Equality and Law Reform certified pursuant to section 26(1)(a) of the Act of 1965 as

amended that he had received the above request on 5th September 2003. That certificate relied on the Government Order of 19th

December 2000 (S.I. No. 474) as having applied Part II to Germany, though that order had, by then been revoked.

On 8th June, 2006 the High Court (Hanna J.) issued a warrant, pursuant to section 26(1)(b) of the Act of 1965, as amended, for the

arrest of the Appellant and ordered that he brought in accordance with the provisions of section 26(5) of the same Act before a

judge of the High Court.

On 19th July, 2006 the Appellant was arrested pursuant to that warrant and was remanded in custody pending an extradition hearing.

On 3rd August, 2006 the Appellant applied for an inquiry into the lawfulness of his detention and on 9th August, 2006 that application

was rejected by O’Donovan J., in an ex tempore judgment.

On 1st November, 2006, the High Court (MacMenamin J,) ordered the surrender of the Appellant to Germany pursuant to the

provisions of Part II of the 1965 Act.

The Appellant was remanded in custody in consequence of that Order pending his surrender. He has remained in custody to date.

Both before O’Donovan J and before MacMenamin J, the principal contention advanced on behalf of the Appellant was, as it is before

this Court, that Part II of the Act of 1965 ceased to apply in relation to Germany as from the moment of the making of S.I. 725 on

24th November 2004.

Both High Court decisions were grounded on an interpretation of Article 32 of the Council Framework Decision of 13 June 2002 on the

European Arrest Warrant and surrender between Member States. The effect of the judgments was to attribute to the Framework

Decision a requirement that extradition requests received before the European Arrest Warrant came into effect on 1st January 2004

were to be handled under existing legislation. O’Donovan J reached this conclusion by holding that S.I. 725 of 2004 “comprises

domestic legislation which gives effect to the Framework Decision.” MacMenamin J also relied on Article 32. He held that the request

in the present case, having been received before 1st January 2004, “fell to be governed by existing instruments relating to

extradition.”

The Appeal

The outcome of the appeal depends, firstly, on the correct interpretation of section 8(7) of the Act of 1965. If the Appellant is

correct, the effect of that provision is that the request in the present case could no longer be processed pursuant to Part II of the

Act once the order applying it in relation to Germany had been revoked. The Respondent accepts that, in that event, the Appellant is

not in lawful custody and is entitled to be released. However, if the Appellant’s interpretation of section 8(7), taken on its own is

correct, a second question arises. That is whether, as was held in the High Court, that interpretation is affected by Article 32 of the

Framework Decision.

It will also be necessary to consider a new argument which the Court permitted to be presented at the hearing of the appeal by Mr

Robert Barron, Senior Counsel, for the respondents. It is based on provisions of the Interpretation Acts, respectively of 1937 and

2005 concerning the effects of revocation of statutory instruments on existing situations.

Dr Forde, Senior Counsel, for the Appellant, presented a separate argument, namely that a legally valid request had not (due to the

absence of the further information sought by the Minister) been presented by Germany until after the Framework Decision had been

applied to that country. This was presented very much as a subsidiary argument. It was not fully argued at the hearing. In any

event, it is not necessary to decide that issue, in view of the result of this appeal.

I turn, firstly, to the interpretation of section 8(7) of the Act of 1965. I am satisfied that the words of section 8(7) are plain and

clear. From 23rd November 2004, the words providing that Part II “shall cease to apply in relation to that country,” namely Germany,

had the effect that, Part II had simply ceased to have application in relation to extradition to Germany. The further steps in the

extradition depended for their legal validity on the continued existence of an underlying legal situation, but that legal state of affairs

had ceased to exist. No further steps could, therefore, be taken on foot of Part II requests received from Germany.

Section 8(7) contains no qualifying or excepting phrase designed to preserve the effectiveness of existing requests. Mr Barron relied

on the obligation placed on the State by section 9 of the Act, but that section applies only to “a country in relation to which this Part

applies” at the time of the request, but it is also generally made subject to the other provisions of the Act.

There is, in addition, force in Dr Forde’s further submission that the Oireachtas, in enacting the Act of 2003, was fully conscious of

the need, where appropriate, for transitional provisions. Section 50 of that Act saved the effect of warrants issued in a place to

which Part III of the Act of 1965 applied, where they had been produced to the Commissioner of the Garda Síochána for the purposes

of section 43 of that Act or, in the alternative, endorsed for execution. Denham J, in her judgment in O’Rourke v Governor of Cloverhill

Prison [2004] 2 I.R. 456, at 463, described this as a saving clause “for cases then being processed.” The Oireachtas adopted no

corresponding saving clause with regard to existing Part II requests. The principle of expressio unius est exclusio alterius can be

helpful, where there is doubt about a matter of interpretation. In this case, the provisions of section 50 suggest an awareness of the

possible need for transitional provisions. Even without this additional point, however, I would have been of the opinion that the

wording of the section 8(7) was clear, unambiguous and unqualified.

If Part II of the Act did not apply, how could the Minister validly grant a certificate or the High Court issue a warrant for arrest? It is

interesting to note that section 8 of the Extradition (Amendment) Act, 1994 amended section 27 of the Act of 1965. That provision

deals with provisional warrants for arrest in urgent cases. The amending words, addressed, at that time, to the District Court spoke of

a situation where“…a request for the provisional arrest of that person has been made, on the ground of urgency, on behalf of a

country in relation to which this Part applies…” (emphasis added). The underlined words plainly require the Court to be satisfied in the

cases to which that section applies that the request has come from a “country in relation to which this Part applies.” The use of the

present tense demonstrates that the legislature recognised that Part II must necessarily still apply at the time of court proceedings

under that part. The same necessarily applies to the certificate of the Minister pursuant to section 26(1) and the arrest warrant

issued by the High Court pursuant to section 26(1)(b). It seems to me to be clear beyond argument that the High Court cannot issue

a warrant pursuant to Part II for the arrest of a person for extradition to a country to which that part does not any longer apply,

even if the request has been received at a time when it did.

What then is the effect of Article 32 of the Framework Decision? It reads:

“Extradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to

extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this

Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the

Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to

acts committed before a date which it specifies in accordance with the extradition system applicable before 1 January

2004. The date in question may not be later than 7 August 2002. The said statement will be published in the Official

Journal of the European Communities. It may be withdrawn at any time.”

It is the first sentence that is relevant. Both High Court judgments had the effect, though it was not stated in so many words, that

this sentence contained a provision of the law of the European Union obliging Member States to continue to apply “existing

instruments relating to extradition” to extradition requests received in Member States before 1st January 2004.

There can be no doubt that this sentence refers to the existing laws of the Member States relating to extradition.

The first point to note is that Article 34(2)(b) of the Treaty on European Union, which provided the power for the Council to adopt

the Framework Decision, provides that Framework Decisions “shall not entail direct effect.” The doctrine of direct effect of directives

as developed in Community law, which is hereby effectively excluded from Framework Decisions adopted pursuant to the Treaty on

European Union, could never be invoked against, as distinct from in favour of, individuals. Moreover, it could not be invoked against

states unless they had failed in their duty to transpose directives. Thus, Article 32 cannot have direct effect in the law of the

Member States, which means that it can have legal effect, if at all, only by means of the interpretation of national law.

Article 32 could have legal significance for a case such as the present only through the application of the principle of conforming

interpretation. That principle was stated by the Court of Justice in its judgment in Case 105/03 Criminal Proceedings against Pupino

[2005] ECR I 5285 (paragraph 43 of the judgment).

“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.”

The result “pursued” by the Framework Decision is, of course, the operation of the system of European arrest warrants. The principle

of conforming interpretation has no application, however, to the provisions of existing Irish legislation (which pre-dated the European

Arrest Warrant) on extradition between states on a bilateral or multilateral basis. Those provisions were not enacted in order to

implement the result pursued by the Framework Decision. They were independent, autonomous national legal provisions. Ireland

implemented the Framework Decision, as it was obliged to do, in relation to Germany as from 31st August 2004.

Even if S.I. 725 were to be considered, as O’Donovan J held, to be national legislation giving effect to the Framework Decision, I do

not consider that it would be possible to interpret section 8(7) as authorising existing requests to be processed after the revocation

order, at a time when Part II did not apply in relation to Germany, without doing violence to its language. The effect of S.I. 725 was

that Part II ceased to apply in relation to Germany. The interpretation advocated on behalf of the respondents which would lead to a

result contrary to the plain meaning of the provision. In Pupino, the Court of Justice recognised the limits to conforming interpretation,

by holding:

“The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules

of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that

envisaged by that framework decision. In other words, the principle of conforming interpretation cannot serve as the basis

for an interpretation of national law contra legem.”

A further point is relevant here. It is that the interpretation, here advocated by the respondents would have the effect of authorising

the continued detention of a person. Any provision authorising detention of a person in custody must be clear, plain and unambiguous.

In my view, Article 32 does no more than recognise that existing laws will, depending on national law legal provisions, continue to

apply to existing requests. It contains no mandatory language, such as “shall.” The provisions on the European Arrest Warrant are

perfectly capable of applying to requests for surrender for prosecution for offences allegedly committed before 1st April 2004. That is

clear from the balance of Article 32.

I turn then to consider Mr Barron’s submissions as to the effect of section 22 of the Interpretation Act, 1937 or, alternatively, section

27 of the Interpretation Act, 2005.

Section 22 of the Act of 1937, so far as relevant to Mr Barron’s argument, provides:

22 (2) Where an instrument made wholly or partly under an Act of the Oireachtas revokes the whole or a portion of a

previous statutory instrument, then, unless the contrary intention appears, any legal proceedings, civil or criminal, in

respect of any right, privilege, obligation, or liability acquired, accrued, or incurred under or any offence against or

contravention of the statutory instrument or portion of the statutory instrument so revoked may be instituted, continued,

or enforced and any penalty, forfeiture, or punishment in respect of any such offence or contravention may be imposed

and carried out as if such statutory instrument or portion of a statutory instrument had not been revoked.(emphasis

added)

The Act of 1937 was repealed by the Act of 2005. Section 27(2) of the Act 0f 2005, however, effectively repeats the above

provision, save that the effects of repeal of enactments and of revocation of statutory instruments are covered in a single section. It

provides:

“Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or

liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted,

continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be

imposed and carried out, as if the enactment had not been repealed.”

Mr Barron contended that the obligation of the State, owed to Germany pursuant to treaty came within section 22(2) (as replaced or

repeated by section 27(2)). However, that sub-section preserves the liability to perform an “obligation” acquired under the revoked

instrument. The obligation owed, in international law, by this State to Germany does not derive from the revoked statutory instrument

but from international agreement or convention. In any event, the sections are concerned with preservation of legal proceedings for

the enforcement of obligations against the person who has become subject to them. It is not at all concerned with enabling a person

or body to enforce an obligation which it owes itself under a distinct legal system.

Nor do I think that the Appellant became subject to a “liability” under the revoked statutory instrument. It is true that the Appellant

was “liable,” in a colloquial sense, to be extradited to Germany as a result of the combined effect of Part II of the Act of 1965 and

the statutory instrument applying that Part in relation to Germany. However, the Act of 1965 is concerned with the making of

requests for surrender from other states and the means of giving them effect. The process involves the arrest and potential

involuntary surrender of a person to another state. That does not constitute the imposition of a “liability” in the legal sense.

The Interpretation Acts do not affect the interpretation of section 8(7) of the Act of 1965 or the effect of the revocation of the

application of Part II in relation to Germany.

I conclude that, for all these reasons, the arrest of the Appellant and all subsequent procedures in relation to his proposed surrender

to Germany were invalid. It follows that his detention is unlawful and that he should be released. I would allow the appeal in each

case and order his immediate release.

I repeat that nothing in this judgment prevents the issue in Germany of a European arrest warrant pursuant to the Framework

Decision or its subsequent execution in this State in accordance with the Act of 2003 as amended.