Irish Supreme Court allows appeal, dismissing surrender order due to lack of corresponding offence under EAW Act.

THE SUPREME COURT

Record No. 287 of 2007

Murray C.J.

Denham J.

Finnegan J.

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Ivans Desjatnikovs

Respondent/Appellant

Judgment delivered the 31st day of July, 2008 by Denham J.

1. This is an appeal by Ivans Desjatnikovs, the respondent/appellant, "the appellant", from an order and judgment of

the High Court (Peart J.), given on the 10th October, 2007, which ordered the surrender of the appellant to the

Republic of Latvia on a European arrest warrant.

2. The European arrest warrant was issued by a judicial authority in Riga on the 7th December, 2005. It was endorsed

by the High Court for execution on the 23rd January, 2007. The

appellant was arrested on the 31st January, 2007 and brought before the High Court. Subsequently the matter came

before the High Court for determination pursuant to s.16 of the European

Arrest Warrant Act, 2003.

3. Offence

At issue in this appeal is the offence on the European arrest warrant, and whether it is one upon which an order may

be made directing the surrender of the appellant.

4. The offence on the European Arrest Warrant

The European arrest warrant states that it relates to one offence. It provides at paragraph (e):-

"(e) Offences

This warrant relates to in total 1 (one) criminal offence.

Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree

of participation in the offence(s) by the requested person: Ivans Desjatnikovs, id. no. 300653-10235, being the

chairman of the board of the holding company - pawnshop "OMEGA" (reg. No. 40003231019, legal address: Riga

street 34, Daugavpils), being the materially responsible person, in January-February 2002 handed out to himself for his

economic needs from the cash desk of the pawnshop sums of money in cash and up till now had not accounted for

disposal of 45000 Lvl, as well as had not returned the money in the cash desk. The power to act with the property and

means of the pawnshop was delegated to I. Desjatnikovs according to Article 22 of Statutes of the holding company -

pawnshop "Omega". The money was handed out by filling in the following documents:

- cash expense order No. 1 from 2 January 2002 for the amount of 44000,00Lvl;

- cash expense order No. 8 from 30 January 2002 for the amount of 552,15Lvl;

- cash expense order No. 9 from 6 February for the amount of 516,85Lvl.

I.Desjatnikovs has signed the mentioned orders as the materially responsible person, confirming

the fact of handing out of the money from the cash desk, as well as the receiver of the money,

confirming the fact of receipt of the money. Moreover the fact of money receipt was entered in

the cashbook of the pawnshop, where in pages No. 1 on 2 January 2002, No. 18 on 30 January

2002 and No. 22 on 6 February 2002 I.Desjatnikovs, had placed his signature.

Also in pre-trial investigation it is established that Ivans Desjatnikovs, being the chairman of the

board of the holding company - pawnshop "Omega", in 2001, the more precise date is not

established, presenting himself as an employee of the mentioned pawnshop, received money in

the amount of 7300Lvl as a loan from his acquaintance Anna Greckina and undertook to pay to

A.Greckina 2% of the amount monthly. Further on I. Desjatnikovs did not fulfil his obligations.

Thereof the heir of A.Greckina's rights - her daughter Natalija Iljina, born in 1951, insisted on

the official drawing up of the afore mentioned loan agreement. On 17.11.2001 I.Desjatnikovs,

identifying himself as the manager of the pawnshop "Omega", actually being the chairman of the

board of the pawnshop, and Natalija Iljina has signed the loan agreement, according to which the

creditor Natalija Iljina grants the pawnshop "Omega" for a term of one year sum of money in

the amount of 7300Lvl for production activities and the pawnshop undertakes to pay to Natalija

Iljina monthly 2% of the amount on the 12th date of each month within the period from

17.11.2001 till 17.11.2002. I.Desjatnikovs did not issue to Natalija Iljina the copy of the cash

order, did not transfer the sum of money in the amount of 7300 Lvl to the account of the

pawnshop and misappropriated it.

Due to the above mentioned activities of I.Desjatnikovs the holding company - pawnshop

"Omega" has suffered the material loss in the amount of 45000Lvl. Natalija Iljina has suffered

the material loss in the amount of 7300Lvl."

Thus the warrant expressly states that it refers to one offence, but it is not clear which is the offence. Is it the initial

facts relating to the three alleged occasions on which he handed out to himself cash from the cash desk of the

pawnshop? Yet there are also facts about an allegedly unrepaid loan? I agree with the finding of the learned trial judge

that it is not clear to which set of facts the one offence relates, i.e. the taking of cash or the unrepaid loan.

On this ground alone I would have a concern in ordering the surrender of the appellant, as the situation is ambiguous.

However, my decision does not turn on this issue.

5. Obligation to surrender

The relevant portion of s.10 of the European Arrest Warrant Act, 2003, "the Act of 2003", provides that where a

judicial authority in an issuing state issues a European arrest warrant in respect of a person against whom the State

intends to bring proceedings for the offence to which the European arrest warrant relates, that person shall, subject to

and in accordance with the provisions of the Act of 2003 and the Framework Decision, be arrested and surrendered to

the issuing state. This case revolves around "the offence to which the European arrest warrant relates".

6. Form of the European Arrest Warrant

Section 11(1) of the Act of 2003 mandates that the European arrest warrant shall in so far as it is practicable be in the

form set out in the Annex to the Framework Decision and shall specify matters as set out there. This includes, for

example, the name and nationality of the person in respect of whom the European arrest warrant is issued. As to the

offence, the requirement is to specify the offence to which the European arrest warrant relates, including the nature

and classification under the law of the issuing state of the offence concerned. It is also required to specify the

circumstances in which it is alleged that the offence took place, including the time and place and degree of

involvement. The penalties are required to be stated, inter alia. Thus a significant amount of detail is required.

The European arrest warrant in this case is in the form set out in the Annex to the Council Framework Decision

2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1

18.7.2002. The Framework Decision and the Annex are in Part B of the Act of 2003. However, in parts of the

European arrest warrant before the Court, where there are alternatives, an appropriate alternative is not indicated. This

makes the warrant somewhat unclear. Paragraph (e) follows the form of paragraph (e) of the Annex to the Framework

Decision. The number of offences to which the warrant relates is stated, it is specifically stated that it is one offence. A

description is given of the circumstances. The nature and classification of the offence is given. The precise wording of

(e) is followed and the list of offences is set out with boxes beside each offence to enable the relevant offence to be

identified by a tick.

7. Three Options

In this case three options are considered as methods by which an offence may be identified as permitting the surrender

of a person on a European arrest warrant. These options are: (a) a corresponding offence; (b) an offence on the list in

Article 2.2 of the Framework Decision, in paragraph (e) of the warrant, which is ticked in the appropriate box; and (c)

it is submitted that, there being no box ticked on the list, the executing judicial authority in the requested state may, on

the facts set out in the warrant, hold that the offence is one specified on the list. I shall consider these three options

separately.

8. First Option - (a) a corresponding offence

Pursuant to s.38 of the Act of 2003, a person shall not be surrendered to an issuing state in respect of an offence

unless (a) the offence corresponds to an offence under the law of the State, and (b) under the law of the issuing state

the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or a term of

imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the

issuing state, and the person is required under the law of the issuing state to serve all or part of that term of

imprisonment. Thus the offence must be a corresponding offence with a required level of penalty.

9. The Laws of Latvia

The warrant in this case describes the law of Latvia as:-

Nature and legal classification of the offence(s) and the applicable statutory provision/code:

Criminal Law (in force from 01.04.1999)

Chapter XVIII: Criminal Offences against Property

Section 179. Misappropriation

Illegally acquiring or wasting property of another, if such has been committed by a

person to whom such property been entrusted or in whose charge it has been placed

(misappropriation), if committed on a large scale.

(1) For a person who commits illegally acquiring or wasting property of another, if such has been committed by a

person to whom such property been entrusted or in whose charge it has been placed (misappropriation),

the applicable sentence is deprivation of liberty for a term not exceeding five years, or custodial arrest, or community

service, or a fine not exceeding fifty times the minimum monthly wage.

(2) For a person who commits misappropriation, if commission thereof is repeated, or by a group of persons pursuant

to prior agreement, the applicable sentence is deprivation of liberty for a term of not less than three years and not

exceeding eight years, with or without confiscation of property.

(3) For a person who commits misappropriation, if commission thereof is on a large scale, or who commits

misappropriation of narcotic, psychotropic, powerfully acting, poisonous or radioactive substances or explosive

substances, firearms or ammunition,

the applicable sentence is deprivation of liberty for a term of not less than six years and

not exceeding fifteen years, with confiscation of property.

(With amendments of the law on 12.02.2004)"

The emphasis indicated above is as it appears on the warrant.

10. Definition of a corresponding offence

Section 5 of the Act of 2003, as amended by s.70 of the Criminal Justice (Terrorist Offences) Act, 2005, defines a

corresponding offence for the purpose of the Act. It states:-

"... an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the

act or omission that constitutes the offence so specified would, if committed in the State on the date on which the

European arrest warrant is issued, constitute an offence under the law of the State."

11. No correspondence

Quite correctly in my view, the learned High Court judge held that the court must first decide whether the acts alleged

to have been done by the appellant would, if committed in Ireland on the 7th December, 2005, constitute an offence

under Irish law. If they would then there would be a corresponding offence and surrender must be ordered.

In this case the warrant refers to a single offence of "misappropriation". It was submitted that the corresponding

offence is that arising under s.4(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and s.6 of the same

Act. Section 4(1) provides:-

"Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of

its owner and with the intention of depriving its owner of it."

The learned High Court judge pointed out that the law in this State required a dishonest intent, he reviewed the facts

on the warrant and held:-

"Each of these matters undoubtedly gives rise to a civil claim for the recovery of money by Omega in the first instance

and by Ms. Iljina secondly. But can it be said that these actions by the respondent would give rise to an offence of

theft under s. 4 in this State? I think not. There is no act alleged which comes within the concept of dishonesty

referred to in s. 4, and that gap precludes correspondence with the offence here. In addition it seems to me that there

is absent also any fact to indicate an intention on the part of the respondent to deprive Omega or Ms. Iljina of the sums

in question either temporarily or permanently and this would be a necessary ingredient of the offence here. In fact the

allegation in respect of the first transaction is that he left an IOU. That would not be evidence of intention to deprive

the company of the money, and the second transaction was committed to writing in the form of a loan agreement.

Those facts do not seem to me to correspond to an offence of theft under s.4 given the absence of dishonest intent

alleged in the factual background."

Also, the High Court held that the offence did not correspond with an offence under s.6, as there was no allegation of

dishonest intent.

The High Court looked at the facts and acts alleged on the warrant, analysed whether they would constitute an offence

in Ireland, and reached a conclusion. I would affirm the finding of the High Court that there is no corresponding

offence. Consequently the first option is not applicable to this case.

12. Second option - a tick on the list

An alternative to the requirement of correspondence is that the offence is an offence to which Article 2.2 of the

Framework Decision applies and the offence is identified on the list by a tick in the appropriate box on the European

arrest warrant.

13. Framework Decision Article 2.2

The Council Framework Decision of 13 June 2002 sets out in Article 2 the scope of the European arrest warrant. It

identifies the "offences" for which a European arrest warrant may issue. It provides:-

"1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial

sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a

detention order has been made, for sentences of at least four months.

2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention

order for a maximum period of at least three years and as they are defined by the law of the issuing Member State,

shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give

rise to surrender pursuant to a European arrest warrant:

- participation in a criminal organisation,

- terrorism,

- trafficking in human beings,

- Sexual exploitation of children and child pornography,

- corruption,

- illicit trafficking in narcotic drugs and psychotropic substances,

- illicit trafficking in weapons, munitions and explosives,

- fraud, including that affecting the financial interests of the European Communities within the meaning of the

Convention of 26 July 1995 on the protection of the European Communities' financial interests,

- laundering of the proceeds of crime,

- counterfeiting currency, including of the euro,

- computer-related crime,

- environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and

varieties,

- facilitation of unauthorised entry and residence,

- murder, grievous bodily injury,

- illicit trade in human organs and tissue,

- kidnapping, illegal restraint and hostage-taking,

- racism and xenophobia,

- organised or armed robbery,

- illicit trafficking in cultural goods, including antiques and works of art,

- swindling,

- racketeering and extortion,

- counterfeiting and piracy of products,

- forgery of administrative documents and trafficking therein,

- forgery of means of payment,

- illicit trafficking in hormonal substances and other growth promoters,

- illicit trafficking in nuclear or radioactive materials,

- trafficking in stolen vehicles,

- rape,

- arson,

- crimes within the jurisdiction of the International Criminal Court,

- unlawful seizure of aircraft/ships,

- sabotage.

3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the

conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to

the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission

pursuant to Article 34(3), whether the list should be extended or amended.

4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for

which the European arrest warrant has been issued constitute an offence under the law of the executing Member State,

whatever the constituent elements or however it is described."

[the emphasis is added].

Thus in this option the Framework Decision clearly and plainly refers to offences in the issuing Member State, as they

are defined by the law of the issuing State, not requiring verification of double criminality, but giving rise to surrender.

14. European Arrest Warrant Act, 2003, s.38(1)(b)

The relevant Irish law is to be found in s.38(1)(b) of the Act of 2003 which provides for this second option in the

following words:-

"(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence

that consists of conduct specified in that paragraph, and under the law of the issuing state the offence is punishable by

imprisonment for a maximum period of not less than 3 years."

This option envisages a new approach to rendition of persons across State borders. (i) No double-criminality is

required. (ii) It is a new development in that the descriptions of the offences are very general and somewhat vague.

They are not precise legal definitions. (iii) It relates to a more serious type of offence, the penalty required in the

issuing state is imprisonment for a maximum period of not less than 3 years. This is a more serious offence than that

identified in the first option, where correspondence is required.

15. Detail of the Warrant

The warrant in this case follows the form set out in the Annex to the Framework Decision. The warrant (as translated

from the Latvian) states:-

"I. If applicable, tick one or more of the following offences punishable in the issuing Member State by a custodial

sentence or detention order of a maximum of at least 3 years as defined by the laws of the issuing Member State:…"

Thereafter are listed the offences pursuant to the Framework Decision and the Act of 2003, with boxes beside each

named offence.

16. Second Option not met

None of the listed offences on the warrant are ticked. The High Court found that the issuing state had not marked any

of the offences contained in the list. The High Court held, and I would affirm, that as no tick appears on the warrant in

any box on the list, the legal requirements are not met, and this warrant does not meet the requirements of the second

option.

17. Third Option

The High Court held that there was nothing in Article 2.2 which states that an issuing authority must tick or otherwise

mark the appropriate offences on the list appearing in paragraph (e) of the warrant, the list being identical with the list

set forth in Article 2.2 of the Framework Decision. The High Court held:-

"Article 2.2 in my view places an obligation upon the requested state to surrender in respect of offences coming within

the listed offences. That obligation is not dependent upon the offence in question being ticked or otherwise marked by

the issuing authority. In the present case the issuing authority has not ticked any offence, though it might very well

have chosen to do so under the general heading “fraud”. The fact that the issuing authority has chosen to set forth

factual details of the offences in paragraph (e) instead of ticking the offence of fraud, does not preclude this court from

concluding that the facts as set forth in the warrant constitute "an offence that consists of conduct specified in that

paragraph" as provided in s. 38(1)(b)."

The High Court held that there were three options. The learned High Court judge stated:-

"It seems to me that the Oireachtas has provided clearly for the fulfilment of the obligations under Article 2.2 of the

Framework Decision, which makes no reference to the issuing authority marking the offence or designating it as such,

by requiring this Court to decide the matter in a number of alternative ways, (a) by correspondence being made out in

accordance with s. 5 of the Act, (b) by the issuing authority actually nominating the offence as an Article 2.2 offence

by ticking or otherwise marking the offence in the list contained in paragraph (e) of the warrant, and finally (c) by

deciding whether the conduct alleged consists of conduct coming within any of the offences contained in that list,

whether it has been ticked or not. Otherwise, the words “an offence that consists of conduct specified in that

paragraph” appear otiose."

18. Issue on appeal

This finding of the High Court gives rise to the issue on appeal. The question is whether under the law are there two

methods of identifying offences, i.e. two options, by correspondence, or if by a tick on the list of offences, or, whether

there are three options, as found by the High Court?

19. Facts

The warrant gave a description of the facts. It provides:-

"II. Full description of offence(s) not covered by section I above: Ivans Desjatnikovs, id.no. 300653-10235, being the

chairman of the board of the holding company - pawnshop "Omega", being the materially responsible person, in

January-February 2002 handed out for his economic needs in Riga street 34, Daugavpils from the cash desk of the

pawnshop sums of money in cash and up till now he had not accounted for disposal of 45000Lvl, as well as had not

returned the money in the cash desk. The power to act with the property and means of the pawnshop was delegated to

I.Desjatnikovs according to Article 22 of Statutes of the holding company - pawnshop "Omega". The money was

handed out by filling in the following documents:

- cash expense order No. 1 from 2 January 2002 for the amount of 44000,00Lvl;

- cash expense order No. 8 from 30 January 2002 for the amount of 552,15Lvl;

- cash expense order No. 9 from 6 February for the amount of 516,85Lvl.

I.Desjatnikovs has signed the mentioned orders as the materially responsible person, confirming the fact of handing out

of the money from the cash desk, as well as the receiver of the money, confirming the fact of receipt of the money.

Moreover the fact of money receipt was entered in the cashbook of the pawnshop, where in pages No.1 on 2 January

2002, No.18 on 30 January 2002 and No. 22 on 6 February 2002 I.Desjatnikovs had placed his signature. Also in pre-

trial investigation it is established that Ivans Desjatnikovs, being the chairman of the board of the holding company -

pawnshop "Omega", in 2001, the more precise date is not established, presenting himself as an employee of the

mentioned pawnshop, received money in the amount of 7300Lvl as a loan from his acquaintance Anna Greckina and

undertook to pay to A.Greckina 2% of the amount monthly. Further on I.Desjatnikovs did not fulfil his obligations.

Thereof the heir of A.Greckina's rights - her daughter Natalija Iljina, born in 1951, insisted on the official drawing up

of the aforementioned loan agreement. On 17.11.2001 I.Desjatnikovs, identifying himself as the manager of the

pawnshop "Omega", actually being the chairman of the board of the pawnshop, and Natalija Iljina has signed the loan

agreement, according to which the creditor Natalija Iljina grants to the pawnshop "Omega" for a term of one year sum

of money in the amount of 7300Lvl for production activities and the pawnshop undertakes to pay to Natalija Iljina

monthly 2% of the amount on the 12th date of each month within the period from 17.11.2001 till 17.11.2002.

I.Desjatnikovs did not issue to Natalija Iljina the copy of the cash order, did not transfer the sum of money in the

amount of 7300Lvl to the account of the pawnshop and misappropriated it.

On 14 March 2002 I.Desjatnikovs left Latvia not fulfilling his debt commitments and had not returned till the present

day.

Due to the above mentioned activities of I.Desjatnikovs the holding company - pawnshop "Omega" has suffered the

material loss in the amount of 45000Lvl. Natalija Iljina has suffered the material loss in the amount of 7300Lvl. It is

established that the misappropriated money was not used in the interests of the pawnshop "Omega" and Natalija Iljina

and that the criminal offences was committed by I.Desjatnikovs alone, he had no accomplices.

In this way Ivans Desjatnikovs repeatedly committed illegal acquiring of property of another on a large scale, being a

person to whom such property been entrusted, that is committed misappropriation - a criminal offence prescribed by

Section 179 three of Criminal Law."

The warrant then described, in optional information, other circumstances:-

"This criminal case was initiated on 10 April 2003 in Daugavpils City and District Police office according to Section

179 Part three of Criminal Law. The guilt of Ivans Desjatnikovs is confirmed with the statement of the Forensic

department of Ministry of Interior on 29 January 2004 about documentary revision of the holding company -

pawnshop "Omega", opinion on 29 October 2003 of Expertise Department of Central Criminal Police of the State

Police of the Ministry of Interior about performance of handwriting expertise, evidence of the victim and the victim's

representative, evidence of witnesses and other case materials. It is established that on 14 March 2002 Ivans

Desjatnikovs left Latvia and had not returned till the present day. On 15.06.2004 the decision was made to start the

search of the accused I.Desjatnikovs, thereof in the Criminal Police of Daugavpils City and District Police office there

was the search case No. 1180032004 initiated. During the course of the pre-trial investigation I.Desjatnikovs was sent

several writs of summons to arrive in the police and prosecutor's office, but he never arrived. During the pre-trial

investigation it is established that I. Desjatnikovs has phoned several times from Ireland to his wife Ehatennu

Desjatnikova and the representative of the pawnshop in Daugavpils, explaining them that he was in Ireland, but never

specified his address or whereabouts in Ireland. From the evidence given by his wife and the representative it results

that he knew that there was a criminal case initiated regarding his activities. But I. Desjatnikovs continued to stay in

the territory of Ireland. He is in Ireland today as well. In this case due to the afore mentioned circumstances it was not

possible officially to notify I.Desjatnikovs about the measures executed against him and he was not summoned to the

court session in which the question about his arrest was adjudicated accordingly.

On 21 July 2004 the judge of Daugavpils Court rendered a judgment in absentia regarding application of a security

measure - arrest to I.Desjatnikovs.

Thus it is established during the pre-trial investigation as well during the course of search measures that I.Desjatnikovs

is in Ireland, but his address is not known."

20. The Law

The terms of Article 2.2 of the Framework Decision and of s.38(1) of the Act of 2003 have been set out previously in

this judgment. The issue for determination, whether or not there is a third option, depends on a construction of the

law.

21. The list system

The Framework Decision addressed the scope of the European arrest warrant in Article 2. The list system is a new

approach of enhanced cooperation between Member States enabling a speedier process of extradition. This is made

possible by the mutual confidence which exists between Member States.

In contrast to the requirement of correspondence, this new list system does not require double criminality. The

executing state is not required to verify double criminality in respect of offences identified on the list of thirty two

categories of offences, but the offence should be punishable by a penalty as set out in law. The matter of penalty is not

in issue in this case.

The fact that there is a precise description of the facts of the case is important, even though the issue of double

criminality is not required to be considered. It is important that there be a good description of the facts. An arrested

person is entitled to be informed of the reasons for his arrest and of any charge against him in plain language which he

can understand. Also, in view of the specialty rule, the facts upon which a warrant is based should be clearly stated.

22. Absence of requirement of double criminality

The most significant change in this new list system is the absence of the requirement of double criminality. The

dispensing of the requirement for double criminality was the subject of the decision of the ECJ in Advocaten voor de

Wereld VZW v. Leden van de Ministerraad, (Case C 303/05) [2007] E.C.R. I -3633, where it was held:-

"Accordingly, while Article 2(2) of the Framework Decision dispenses with verification of double criminality for the

categories of offences mentioned therein, the definition of those offences and of the penalties applicable continue to be

matters determined by the law of the issuing Member State, which, as is, moreover stated in Article 1(3) of the

Framework Decision, must respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU,

and, consequently, the principle of the legality of criminal offences and penalties."

Of the list of offences the judgments stated:-

"With regard, first, to the choice of the 32 categories of offences listed in Article 2(2) of the Framework Decision, the

Council was able to form the view, on the basis of the principle of mutual recognition and in the light of the high

degree of trust and solidarity between the Member States, that, whether by reason of their inherent nature or by reason

of the punishment incurred of a maximum of at least three years, the categories of offences in question feature among

those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with

the verification of double criminality. Consequently, even if one were to assume that the situation of persons suspected

of having committed offences featuring on the list set out in Article 2(2) of the Framework Decision or convicted of

having committed such offences is comparable to the situation of persons suspected of having committed offences

other than those listed in that provision, the distinction is, in any event, objectively justified.

With regard, second, to the fact that the lack of precision in the definition of the categories of offences in question

risks giving rise to disparate implementation of the Framework Decision within the various national legal orders, suffice

it to point out that it is not the objective of the Framework Decision to harmonise the substantive criminal law of the

Member States and that nothing in Title VI of the EU Treaty, Articles 34 and 31 of which were indicated as forming

the legal basis of the Framework Decision, makes the application of the European arrest warrant conditional on

harmonisation of the criminal laws of the Member States within the area of the offences in question."

This upholding of the list scheme in Article 2.2, dispensing with double criminality, is relevant to both the second and

third option. It affirms a process which does not require double criminality. I also note that, while it was not the issue

of the case, the ECJ stated that the definition of the offences and of the penalties applicable continue to be matters for

the law of the issuing state.

23. High Court basis for third option

The High Court based its decision on the third option on what is perceived as the lack of any specific requirement that

the issuing state mark or indicate the relevant offence on the list. The learned trial judge held that the courts in this

State should decide whether the conduct alleged constitutes conduct coming within the offences on the list, whether

ticked or not. He based this decision on the words "an offence that consists of conduct specified in that paragraph" in

s.38(1)(b) of the Act of 2003.

24. Decision on third option

24.1 Thus the decision on this third option requires a construction of the words of s.38(1)(b) of the Act of 2003.

These words are:-

"(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence

that consists of conduct specified in that paragraph, and under the law of the issuing state the offence is punishable by

imprisonment for a maximum period of not less than 3 years."

These words are not exactly the same as those in Article 2.2 of the Framework Decision. The Framework Decision

states:-

"2. The following offences, if they are punishable in the issuing Member State by a custodial sentence

or a detention order for a maximum period of at least three years and as they are defined by the law

of the issuing Member State, shall, under the terms of this Framework Decision and without

verification of the double criminality of the act, give rise to surrender pursuant to a European arrest

warrant:"

The Framework Decision words are precise and clear. They refer to the list of offences. They require a specific

penalty - which is more serious that that required in the correspondence option - and which is not in issue in this case.

The Framework Decision specifically refers to offences "as they are defined by the law of the issuing Member State".

This is a key requirement. The definition of the offences is a matter for the issuing state and it is specifically stated that

there is no requirement of double criminality.

This portion of the Framework Decision is transposed into Irish law by s.38(1)(b) of the Act of 2003. The words of

s.38(1)(b) are not precisely the same as those of the Framework Decision. However, the intent of the Oireachtas is

clearly expressed. It states that it applies to an offence where "the offence is an offence to which paragraph 2 of Article

2 of the Framework Decision applies". The object of the Act of 2003 is to transpose the Framework Decision into

Irish law, and this section specifically states that it covers an offence to which Article 2.2 of the Framework Decision

applies.

In s.38(1)(b) of the Act of 2003 there then follows the phrase upon which the High Court rested its decision: "or is an

offence that consists of conduct specified in that paragraph". The balance of the section refers to penalty and is not in

issue.

The learned High Court judge held that the third option arose on the words, "or is an offence that consists of conduct

specified in that paragraph", and that if such a construction was not taken the words were otiose. Thus it is essentially

a matter of construing s.38(1)(b) of the Act of 2003 and these words in the section. However, these words cannot be

taken in isolation, the fact that the Act of 2003 is the transposition into Irish law of the Framework Decision is an

important factor.

24.2 I have sympathy for the learned trial judge in construing this Act of 2003 and applaud his perseverance in the

face of the wording. However, I respectfully disagree with his analysis of the third option.

The Irish Statute should as far as possible be construed in accordance with the Framework Decision. Pupino (Case C-

105/03) [2005] E.C.R. I-5285 provides that the national court is required to take into consideration all the rules of

national law and to interpret them, as far as is possible, in light of the wording and purpose of the Framework

Decision. The role of the Court is to try and reach an interpretation which is in accordance with the Framework

Decision.

24.3 As this is essentially a matter of construing s.38(1)(b), I have found little assistance from case law elsewhere on

this issue of the third option. It may well be because of the terms of the relevant national laws.

The Act of 2003 must be read in the context of the Framework Decision. Box (e) of the Annex contains a form of

European arrest warrant. Box (e) is headed "Offences". At I it is stated:-

"If applicable, tick one or more of the following offences…"

Clearly this mandates a decision. On the plain meaning of the words of the Framework Decision an exception was

made to the principle of double criminality by the creation of the list system in Article 2.2. This exception requires a

decision by the issuing state, which decision requires to be communicated in the form of warrant in the Annex to the

Framework Decision, which expressly requires a tick.

24.4 The issue is whether the Act of 2003 has introduced a third option into the law in Ireland, in addition to the

second option.

While the Framework Decision does not itself expressly require that a tick should be placed opposite the relevant

offence in the box provided on the form of the warrant annexed to the Framework Decision, Article 8 of the Decision,

under the heading: "Content and form of the European arrest warrant, provides:-

'The European arrest warrant shall contain the following information set out in accordance with the form contained in

the Annex:

…

(d) the nature and legal classification of the offence, particularly in respect of Article 2;'"

Consequently this mandatory requirement refers back to the express requirement set out in the form of European

arrest warrant, as set out in the previous paragraph.

It is clear for this reason that the form of European arrest warrant annexed to the Framework Decision, which the

Member States are required to follow as far as possible, does expressly require that a tick be placed against the

relevant offence.

Also, inherent in the Framework Decision and the Act of 2003 is the requirement that the issuing state should identify

the offence and its penalty. This is a logical and reasonable approach as it is the law of the issuing state under which

the offence exists, and on which the issuing state seeks the surrender of a person.

There may be a degree of confusion with the situation in cases where corresponding offences are in issue. There an

Irish judge may consider the facts and acts on the warrant. However, that approach is not to determine if it is an

offence in the issuing state. It is to determine if the facts and acts are an offence under Irish law, of which he has

judicial knowledge.

It would be an extraordinary leap, a major step, to give to an Irish High Court the role of deciding whether on the facts

the warrant refers to an offence in the issuing state. The words of Article 2.2 of the Framework Decision are clear, and

they do not establish such a system. This radical change was found by the learned High Court judge to have been

introduced into Ireland by the words "or is an offence that consists of conduct specified in that paragraph" in s.38(1)

(b) of the Act of 2003.

It is the duty of the Court to interpret s.38(1)(b) of the Act of 2003 as far as possible in light of the wording and

purpose of the Framework Decision - and to construe the Act of 2003 in accordance with the Framework Decision.

It appears to me that there are a number of important factors:-

(i) This suggested third option would be a radical change in the law. As such it would have to be established clearly

and expressly.

(ii) The Oireachtas has, on the contrary, expressed a different intent, i.e. that the European arrest warrant shall be as

far as practicable in the form set out in the Annex to the Framework Decision: as provided for by s.11 of the Act of

2003.

(iii) A decision is required of the issuing state. The requirement of a decision by the issuing state is a matter of

common sense. If the issuing state wishes to use this new system it is required to make a decision on this option, on

the list. Once made this decision must be communicated. The method of communicating the decision for using this list

system is on the list provided, in the boxes provided. This is not just a technicality. This is a matter of law. The issuing

state, if it wishes to use the list system, must make the choice and tick any relevant box.

(iv) The Annex clearly, expressly, requires that an applicable offence be ticked.

(v) The initial words of s.38(1)(b) simply require that the offence is an offence to which paragraph 2 of Article 2 of the

Framework Decision applies. It is a clear requirement and is not in issue.

(vi) The words upon which the learned High Court judge rested his decision follow: "or is an offence that consists of

conduct specified in that paragraph." These are ambiguous, and so should be construed in context and in view of the

purpose of the Act of 2003 and the Framework Decision.

(vii) The meaning and effect of that phrase is difficult to decipher in light of the context and purpose of the Act of

2003 or the Framework Decision. The offence must be an offence in the issuing state. This refers back to the fact that

the "offences" on the list are somewhat vague descriptions and may refer to differently named offences, or to a

situation where there may in fact not be such a specific offence in the executing state, for example racketeering,

racism. The list is in terms of a political decision rather than in precise legal terms. Also, in the vagueness of its terms it

enables an issuing state to identify its offence. There is no conduct specified in Article 2.2 which could be said to

determine whether an offence stated in a warrant is an offence listed in that Article. That is something which only the

issuing state can do, by reference to its own national law. That is why, as I have pointed out, the Act of 2003 and the

Framework Decision require that the European arrest warrant should follow the form contained in the Annex to the

Decision. Article 8 requires the issuing state to classify the offence, in particular for the purpose of Article 2. If an

issuing state does not classify the offence, it is not open to a court in the executing state to determine, for the purposes

of a European arrest warrant, whether an offence in the warrant is an offence to which Article 2.2 applies, unless the

executing state states that this is so by ticking the relevant box.

(viii) I am satisfied that the learned High Court judge erred in determining that there was a third option, and

consequently an order may not be made directing the surrender of the appellant on this European arrest warrant.

(ix) Once again this case illustrates the difficulty in construing the Act of 2003. As Fennelly J. stated in Dundon v.

Governor of Cloverhill Prison [2006] 2 IR 518, at 545:-

" 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 the 11th

September, 2001. The drafting is extraordinarily loose and vague, particularly in the manner in which offences are

defined."

25. Conclusion

In conclusion, and to recapitulate, at issue in this case is whether there are two options for identifying offences for

which a person may be surrendered under s.16 of the European Arrest Warrant Act, 2003, on a European arrest

warrant, i.e. on the basis that it is a corresponding offence, or by ticking a box in the relevant portion of the European

arrest warrant. Or, whether there is a third option under which a court of a requested state, i.e. the executing state,

may look at the facts, find that it is not a corresponding offence, but find that the offence is an offence of the issuing

state even though it has not been identified on the list by the issuing state by a tick or otherwise, but conclude that

there is such an offence in the issuing state and that it comes within the list system.

The Framework Decision and the Act of 2003 have introduced a novel system. First, the concept of double

criminality, a corresponding offence, may be applied. This is the basis upon which extradition has proceeded for many

years and is not a new concept. However, secondly, the concept of a list of offences, where double criminality need

not be found, is an entirely new system, agreed by the Member States in Article 2.2 of the Framework Decision and

transposed into our law by the Act of 2003. If the offence is identified by the issuing state then the matter comes

within this new legal scheme. However, if the offence is not identified on the list by the issuing state, the role of the

requested state, as submitted in this case on behalf of the State, would be an extraordinary step. It would require an

Irish Court to look behind the issuing authority, and its decision, and decide whether the act described is an offence

under the law of the issuing state, and whether it comes within the list of offences in Article 2.2. For the reasons given

I am satisfied that the Act of 2003 does not create this third option.

Section 38(1)(b) of the Act of 2003 is the implementation of Article 2.2 of the Framework Decision. If this option is

applied by an issuing state then one or more of the offences require to be ticked or marked on the European arrest

warrant.

Section 38(1)(b) of the Act of 2003 states the law on corresponding offences. Correspondence is addressed in Article

2.4 of the Framework Decision. Paragraph (e) II of the arrest warrant relates to offences not covered by Article 2.2

and was completed on the warrant in issue in this case. This enables a decision on whether or not there is a

corresponding offence.

As the High Court held, and which I would affirm, there is no corresponding offence in this jurisdiction. It is clear that

there is no corresponding offence and so the appellant could not be extradited for the offence on that basis. Nor could

he be extradited on the basis of the list system, as no tick or mark was made by the issuing state in paragraph (e) I in

the list of offences. There is no third option by which an Irish court could go behind the warrant, consider the facts,

and determine that under the law of the issuing state the offence is an offence in the issuing state and that it is one

listed in paragraph (e) I, when an issuing state has not made such a decision or ticked a relevant box.

For the reasons given I would allow the appeal. I am satisfied that an order may not be made directing the surrender of

the appellant on this European arrest warrant.

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