Supreme Court allows surrender on one warrant after second warrant is revoked by Polish court.

[2009] IESC

THE SUPREME COURT

Record No: 359/2007]

Denham J.

Fennelly J.

Macken J.

Between/

The Minister for Justice Equality and Law Reform

Applicant/Appellant

and

Jaroslav Piotr Gotszlik

Respondent

Judgment delivered the 19th day of February, 2009 by Denham J.

1. This is an appeal by the Minister for Justice, Equality and Law Reform, "the Minister", from the refusal of the High Court (Peart J.)

on the 2nd November, 2007, to surrender Jaroslav Piotr Gotszlik, "the respondent", to Poland under s.16(1) of the European Arrest

Warrant Act 2003 on two European Arrest Warrants which had issued on the 21st and the 28th November, 2006.

2. The central issue in the case arises in the circumstances that the judicial authority in Poland issued two separate warrants on

which the surrender of the respondent is sought.

3. Two Warrants

3.1 The first warrant, the European Arrest Warrant arising from the judicial decision issued by the District Court in Ilawa on the 17th

February, 2006, relates to two offences, which were described as follows:-

"I. In November 2005 in Ilawa, by applying violence in the form of pushing the abdominal part of the body, he led the

minor Patrycja Otreba, aged 13, to sexual abuse in such a way that he kept touching her vagina with hands. Additionally,

by applying force he attempted to lead to oral sexual intercourse but he failed to achieve the expected result due to

resistance from the said minor.

II. In November 2005 in Ilawa, he led the minor Patrycja Otreba, aged 13, to another sexual activity by touching her

vagina with hands."

3.2 The second European Arrest Warrant related to a sentence passed by the District Court in Ilawa on the 2nd December, 2003. A

custodial sentence of one year and four months had been imposed. The circumstances described were of assaults by the respondent

on his wife. The nature and legal classification of the offence and the applicable statutory code were identified as physical and mental

cruelty, and article 270 paragraph 1 of the Penal Code. In a further description it was stated that in the period between June 2000

and June 2002 the respondent applied physical and mental cruelty to his wife Wioletta Gotszlik when under the influence of alcohol,

and the assaults were described. It was stated on the warrant that the respondent was present during the hearing and assing of the

verdict, but that once the verdict was directed to execution, he left his residence and has been absconding from completing the

punishment, and so he has been sought by way of a warrant of arrest.

4. Issue

The primary issue in this case is a construction of Irish statutory law in the light of the Framework Decision of the European Union. It

arises as two warrants were issued by judicial authority in Poland. In the High Court surrender was refused on the basis of an

interpretation of s.22 of the European Arrest Warrant Act, 2003, as substituted by s.80 of the Criminal Justice (Terrorist Offences)

Act, 2005, hereinafter referred to as section 22.

5. Section 22 provides:-

"22.-(1) In this section, except where the context otherwise requires, ‘offence’ means, in relation to a person to whom a

European arrest warrant applies, an offence (other than an offence specified in the European arrest warrant in respect of

which the person's surrender is ordered under this Act) under the law of the issuing state committed before the person's

surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the

European arrest warrant consists in whole or in part.

(2) Subject to this section, the High Court shall refuse to surrender a person under this Act if it is satisfied that—

(a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European

arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or

detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and

(b) the person will be proceeded against, sentenced, or detained for the purposes of executing a sentence or

detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.

(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does

not intend to—

(a) proceed against him or her,

(b) sentence or detain him or her for a purpose referred to in subsection (2)(a), or

(c) otherwise restrict him or her in his or her personal liberty, in respect of an offence, unless the contrary is

proved.

(4) The surrender of a person under this Act shall not be refused under subsection (2) if—

(a) upon conviction in respect of the offence concerned he or she is not liable to a term of imprisonment or

detention, or

(b) the High Court is satisfied that, where upon such conviction he or she is liable to a term of imprisonment or

detention and such other penalty as does not involve a restriction of his or her personal liberty, the said other

penalty only will be imposed if he or she is convicted of the offence.

(5) The surrender of a person under this Act shall not be refused under subsection (2) if it is intended to impose in the

issuing state a penalty (other than a penalty consisting of a restriction of the person's liberty) including a financial

penalty in respect of an offence of which the person claimed has been convicted, notwithstanding that where such

person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or

refuses to submit to any measure or comply with any requirements of which the penalty consists) he or she may, under

the law of the issuing state be detained or otherwise deprived of his or her personal liberty.

(6) The surrender of a person under this Act shall not be refused under subsection (2) if the High Court—

(a) is satisfied that—

(i) proceedings will not be brought against the person in respect of an offence,

(ii) a penalty will not be imposed on the person in respect of an offence, and (iii) the person will not be

detained or otherwise restricted in his or her personal liberty for the purposes of an offence, without

the issuing judicial authority first obtaining the consent thereto of the High Court,

(b) is satisfied that—

(i) the person consents to being surrendered under section 15,

(ii) at the time of so consenting he or she consented to being so proceeded against, to such a penalty

being imposed, or being so detained or restricted in his or her personal liberty, and was aware of the

consequences of his or her so consenting, and

(iii) the person obtained or was afforded the opportunity of obtaining, or being provided with,

professional legal advice in relation to the matters to which this section relates,

(c) is satisfied that—

(i) such proceedings will not be brought, such penalty will not be imposed and the person will not be so

detained or otherwise restricted in his or her personal liberty before the expiration of a period of 45 days

from the date of the person's final discharge in respect of the offence for which he or she is

surrendered, and

(ii) during that period he or she will be free to leave the issuing state, except where having been so

discharged he or she leaves the issuing state and later returns thereto (whether during that period or

later), or

(d) is satisfied that such proceedings will not be brought, such penalty will not be imposed and the person will not

be so detained or restricted in his or her personal liberty unless—

(i) the person voluntarily gives his or her consent to being so proceeded against, such a penalty being

imposed, or being so detained or restricted in his or her personal liberty, and is fully aware of the

consequences of so doing,

(ii) that consent is given before the competent judicial authority in the issuing state, and

(iii) the person obtains or is afforded the opportunity of obtaining, or being provided with, professional

legal advice in the issuing state in relation to the matters to which this section relates before he or she

gives that consent.

(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to—

(a) proceedings being brought against the person in the issuing state for an offence,

(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person's

liberty, in respect of an offence, or

(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of

executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the

issuing state in that behalf.

(8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a

person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this

Act.”

Section 22 is the implementation of Article 27 of the Council Framework Decision 2002/584/JHA on the European arrest warrant and

the surrender procedures between Member States, 2002 O.J. (L190)1, hereinafter referred to as "Article 27".

6. Article 27 provides:-

"Possible prosecution for other offences

1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States

that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or

detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his

or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial

authority states otherwise in its decision on surrender.

2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or

otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he

or she was surrendered.

3. Paragraph 2 does not apply in the following cases:

(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has

been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after

leaving it;

(b) the offence is not punishable by a custodial sentence or detention order;

(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;

(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a

financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or

her personal liberty;

(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the

speciality rule, in accordance with Article 13;

(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard

to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial

authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The

renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full

awareness of the consequences. To that end, the person shall have the right to legal counsel;

(g) where the executing judicial authority which surrendered the person gives its consent in accordance with

paragraph 4.

4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned

in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is

requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be

refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4.

The decision shall be taken no later than 30 days after receipt of the request.

For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein."

7. The High Court

The learned High Court judge held:-

"I have considered this matter carefully. I have arrived at the conclusion that since s.22 has been worded in the way

appearing and since those words are clear and unambiguous as to their meaning by reference to the plain and ordinary

meaning to be given to the words used by the Oireachtas, the Court must, as required by that section refuse to surrender

this respondent. The Framework Decision does not have direct effect. It requires an Act of the Oireachtas to give effect

to its Articles. The Court is required to follow that legislation as passed for the purpose of giving effect to that instrument

here. As I have already stated, the Act must be interpreted in the light of the intention of the Framework Decision

provided that to do so is not ‘contra legem’. In my view, for this Court to order surrender on foot of either warrant or

both warrants because it is of the view that the Framework Decision clearly intended that each of these offences should

give rise to surrender even if requested on foot of separate warrants, would be to ignore the specific provisions of s. 22

of the Act, and would be contrary to the clear meaning of s. 22 and therefore ‘contra legem’. The fact that the

circumstances in which this has arisen may not have been the intended target of the specialty provisions passed by the

Oireachtas for the purpose of giving effect to Article 27 of the Framework Decision is neither here nor there. If there is a

lacuna or an anomaly in the manner in which the section operates in a particular and exceptional case it is not for this

Court to plug the gap by a purposive interpretation which runs contrary to the specific provision of the section. The Court

must apply the law as leaned (sic) from the wording of the section, taking account of course of the manner of

interpretation prescribed by the Pupino judgment already referred to.

I am of the view that the presumption contained in s. 22(3) of the Act does not save the situation given the contents of

both warrants and the request in each that the respondent be surrendered to be dealt with under both.

I hasten to add that this situation arises only from the fact that for whatever reason the Polish judicial authority has

chosen to send over two separate warrants. That need not have occurred, and indeed there would appear to be nothing

to inhibit that authority from issuing a new warrant on another occasion containing within it both offences and then this

point would not arise."

8. Appeal

The Minister has appealed against the judgment and order of the High Court. The following grounds of appeal were filed:-

1. That the learned trial Judge erred in law in interpreting section 22 as requiring the court to refuse the surrender of the

respondent.

2. That the learned trial Judge erred in law in concluding that only a literal interpretation of section 22 was appropriate.

3. That the learned trial Judge erred in law in failing to apply section 18 of the Interpretation Act, 2005, in interpreting

section 22.

4. In the alternative, that in applying the meaning of the word "offence" provided in subsection (1) of section 22, that the

learned trial Judge erred in law in that the context did otherwise require in the application of the facts of this case to the

wording of subsection (2).

5. That the learned trial Judge erred in law in concluding that a purposive interpretation of section 22 would be "contra

legem".

6. Further, or in the alternative, that in applying a literal interpretation to section 22, the learned trial Judge erred in law,

in refusing to order the surrender of the respondent.

7. In particular, without prejudice to the generality of ground 5, that the learned trial Judge erred in law in not applying

the presumption in favour of the requesting judicial authority that it would respect the rule of specialty in the event that

he refused surrender on one or other of the European arrest warrants.

8. That the learned trial Judge erred in law in failing to interpret section 22 in a manner that gave effect to the objects of

the Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between

Member States.

9. That the learned trial Judge erred in law in failing to have regard to the fact that there was substantively one

application before the Court.

10. That the learned trial Judge erred in law in not making an Order directing the surrender of the respondent to Poland

pursuant to section 16 of the European Arrest Warrant Act, 2003, as amended.

9. Statutory Construction

Essentially this case turns on the construction of section 22.

10. It was indicated by letter translated on the 8th June, 2008, that one warrant, that relating to the assault, has now been

withdrawn. The appeal was listed before this Court in October 2008, when it was requested, on behalf of the Minister, that the issue

be decided, notwithstanding that it may now be moot, as there are other cases before the High Court involving multiple warrants. At

that time the Chief Justice indicated that it would be a matter for the Court hearing the appeal.

11. Moot

I am satisfied that, while the second warrant has been withdrawn, it is an exceptional case enabling the Court to consider in its

discretion as to whether to hear a point of law in circumstances which have rendered the matter moot. I accept that the second

warrant has been withdrawn and that therefore the respondent will not be surrendered on that warrant. However, for a number of

reasons, I am satisfied that the issue should be decided. The issue is one of law, which is relevant to other cases currently listed

before the High Court. A decision will be required on this legal issue. If this matter is decided now it will save the costs of bringing

another appeal to the Court on this point. The list of pending cases before this Court is such that any other appeal would not take

place for a considerable time. The European arrest warrant system was introduced here and in other Member States to bring about a

less complex and speedier process of extradition. It is important that European arrest warrant cases be heard without delay. For

these reasons I would exercise the inherent discretion of the Court and hear and determine this issue of law.

12. Submissions

Oral and written submissions from both parties were before the Court. There were two warrants when this matter came before the

High Court, and for the purpose of this analysis it will be presumed that two warrants still exist and that nothing invalidates either

warrant per se. On behalf of the Minister it was submitted that the High Court had erred in applying a literal interpretation of section

22. The respondent submitted that the decision of the High Court was correct.

13. Key Statutory Words

The case turns on the words in section 22, subsection (1) of which states:-

"22.-(1) In this section, except where the context otherwise requires, ‘offence’ means, in relation to a person to whom a

European arrest warrant applies, an offence (other than an offence specified in the European arrest warrant in respect of

which the person's surrender is ordered under this Act) under the law of the issuing state committed before the person's

surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the

European arrest warrant consists in whole or in part."

14. Section 22 arises because of the specialty rule. That is the mischief it was established to avoid. The specialty rule, which has

long been part of extradition law, arises to protect the person surrendered from being prosecuted or sentenced for another offence on

which he has not been surrendered. Thus, a State could not request a person for one offence and then prosecute or sentence him for

another offence on which he had not been surrendered. This protection is and was important to protect persons. It has arisen

especially to protect persons from being prosecuted for political offences or for offences on which there was no double criminality.

Article 27 of the Framework Decision recognises this concept. Article 27.2 pithily states that, with the exceptions stated in

paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence

prior to his or her surrender other than that for which he or she was surrendered. This, clearly stated, is the principle that a person

could not be prosecuted, etc. for an offence committed prior to surrender other than that on which he or she had been surrendered -

in other words the rule of specialty.

However, as the European arrest warrant Scheme is based on mutual confidence between the Member States it enables a reversal of

the rule of specialty by consent. This is a matter which may be developed in the future. It does not apply in this case. But it assists

the analysis of this case in that it clarifies the fact that Article 27 of the Framework Decision is grounded on the specialty rule, as is

section 22. Consequently, the mischief to be avoided by section 22 is the prosecution, sentence, etc. of a person in the requesting

State for an offence not the subject of a warrant processed in the requested State.

But that does not arise here as all the offences are expressly on warrants seeking his surrender. Thus the concern which gave rise to

the rule of specialty does not arise in this case.

15. The intent behind Article 27 of the Framework Decision was to preserve the rule of specialty, subject to its variation by consent.

16. By section 22 the Oireachtas intended to implement the Framework Decision. The words of the section are clear. "In this section"

means the words apply to this section. The words "except where the context otherwise requires" are important. I shall return to

them. "Offence" is defined in the following words: "means, in relation to a person to whom a European arrest warrant applies, an

offence (other than an offence specified in the European arrest warrant in respect of which the person's surrender is ordered under

this Act)…" Thus an "offence" means, in relation to a person to whom a European arrest warrant applies, an offence other than an

offence specified in the European arrest warrant on which the person's surrender is ordered. It is an offence on which an order for

surrender is not sought. Such offence is an offence "under the law of the issuing State committed before the person's surrender".

Thus it is an offence committed before the surrender.

But excluded is "an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant

consists in whole or in part". Clearly these words relate to an offence prior to the surrender, other than an offence on the European

arrest warrant. Thus they recreate in statutory form the rule of specialty, and relate to an offence not specified on a warrant.

Reference is made to "offence" as other than the "offence specified in the European arrest warrant". It is in the singular. However,

warrants may, and do, have more than one offence specified on the warrant. The intent is clear - it excludes the offence specified on

the European arrest warrant. An "offence" means an offence specified on a warrant.

The words "except where the context otherwise requires" require that the section be read in context. The context in this case is two

warrants. On both warrants offences are stated and each are "an offence specified in the European arrest warrant". Each is an

offence on which the person is sought to be surrendered. Thus there is full notice of each offence, a hearing in relation to each

offence, and the respondent and Court are fully aware of the offences upon which it is sought to order his surrender. Under the

legislation the Court is bound to make an order for surrender on each valid warrant.

17. Section 22(3) provides a specific statutory presumption. There is nothing before the Court to rebut that presumption. Indeed, the

presumption confirms the interpretation of section 22 above.

18. I am satisfied that the words of section 22 should be interpreted as analysed above.

19. If an approach were taken, as by the learned High Court judge, which I do not accept to be a literal construction, it gives rise to

the absurd situation that two valid European arrest warrants are not given effect.

20. While I am satisfied that the words of section 22 are clear on their face, as I have concluded above, one could also take a

purposive approach to section 22. That purpose is to give effect to the rule of specialty - i.e. that a person who has been extradited,

will not be prosecuted or sentenced for offences committed prior to his extradition, unless he is given a reasonable opportunity to

leave the requesting State. However, manifestly that rule is not violated if the requested State has made orders for surrender on foot

of those offences.

21. Taken as a whole, while the European Arrest Warrant Act, 2003, as amended, may not be drafted in optimum terms, it is clearly

intended to give effect to the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender

procedures between Member States. The Framework Decision sought to establish a simplified system of surrender between Member

States. By this system it was sought to reduce issues such as delay and complexity. Section 22, and the Act as a whole, may be

construed as implementing in the Statute the specialty rule as addressed in Article 27 of the Framework Decision.

22. In Case C-105/03 Pupino [2005] E.C.R. 1-5285 the Grand Chamber of the European Court of Justice ruled that the national court

is required to take into consideration all the rules of national law and to interpret them, in the light of the wording and purpose of a

Framework Decision.

23. Fennelly J., in Ó Fallúin v. Governor of Cloverhill Prison [2007] 3 I.R. 414 at p.420 referred to the obligation of the Court to

interpret the Act in the light of the Council Framework Decision on the European arrest warrant. This is an important factor for the

Court in construing legislation created to provide national law pursuant to the Framework Decision.

24. Thus, applying the principles enunciated in Case C-105 Pupino, this Court should construe section 22 as far as possible in a

manner which conforms with the provisions of the Framework Decision. Article 27(2) includes the words "a person surrendered may

not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other

than that for which he or she was surrendered". This expressly refers to an offence on which the person was surrendered. This implies

that there is no restriction on surrender where there is more than one warrant - the requirement is that there be an offence on which

he or she is to be surrendered.

25. The High Court refused to order the surrender on the basis that the decision in Pupino is subject to the requirement that a

conforming interpretation is not contra legem, and held that section 22 was clear and unambiguous and that it was contra legem.

However, I am satisfied that it could not be so considered. The intent of section 22 was to preserve the rule of specialty, subject to

its variation by consent which does not arise in this case. No issue of contra legem arises.

26. Decision on Law

Bearing in mind the words of section 22, and taking a purposive interpretation, noting especially the qualifying words "except where

the context otherwise requires", considering the Framework Decision which could not be construed as requiring all offences to be on a

single warrant, and the European principles of law enunciated in Pupino, I am satisfied that a court may order the surrender of a

person on more than one European arrest warrant. Thus, as existed in the High Court in this case, the respondent may be ordered to

be surrendered on two warrants. Such an approach preserves the rule of specialty and is consistent with the terms of section 22 and

with the purpose of the Framework Decision.

27. However, the facts of this case have altered since it was heard in the High Court. A copy of a judicial decision dated 6th June,

2008 was handed into court. This referred to the European arrest warrant relating to the assault. In the translated order of the

Regional Court of Elblag it is stated that the respondent "is no longer sought to serve his term with relation to the case II K 776/02 of

the District Court of Ilawa, which necessitates the European arrest warrant to be reversed". Consequently, the respondent may not

be ordered to be surrendered on this European arrest warrant and so may not be imprisoned on foot of that offence.

28. Conclusion

For the reasons given I would vary the judgment on law of the High Court. A person may be surrendered on more than one warrant.

However, in this case there are no longer two warrants. Consequently, the respondent should be surrendered on the first warrant and

I would make the necessary orders in relation to that European arrest warrant.