Supreme Court allows appeal permitting surrender under multiple European Arrest Warrants from one member state.

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 Macken, J.

I am in agreement with the judgment of Denham, J. in this matter, but would like to add some general comments on the

question of more than one warrant being presented simultaneously in respect of the surrender of the same person, pursuant

to the provisions of the European Arrest Warrant Act 2003 (“the Act of 2003”). Although in the present appeal the Court

has been informed that one of the two arrest warrants has now been withdrawn by the issuing judicial authority in Poland,

and is therefore no longer before the court, in light to the statement at the commencement of the hearing that other cases

raising a similar issue exist in the High Court, it is appropriate to consider the matter from a point of principle.

I am satisfied firstly, that the appellant is correct in his contention that the application of the provisions of the Interpretation

Act 2005 is such as to include within the terms of s.22 of the Act of 2003 both warrants presented in this appeal, or indeed

in any case where, save in particular circumstances, or in an unusual context, neither of which arises in the present case, two

or more European arrest warrants are presented for execution, whether issued by the same judicial authority in a member

state (as in the present case) or by two different judicial authorities in the same member state. The argument of senior

counsel for the appellant based on the provisions of the Interpretation Act 2005 is as follows. S.18 of that Act may, and

ordinarily should, be applied to the interpretation of s.22 of the Act of 2003, so that “warrant” in that section automatically

includes the plural “warrants”. Therefore, more than one warrant can clearly be presented, s.18 of the Interpretation Act

reading as follows:

"(a) Singular and plural. A word importing the singular shall be read as also importing the plural, and a word

importing the plural shall be read as also importing the singular."

The application of this provision to s.22 of the Act of 2003 would have the following effect:

"In this section, except where the context otherwise requires, offence means, in relation to a person to whom a

European arrest warrant(s) applies, an offence (other than an offence specified in the European arrest

warrant(s) in respect of which the person's surrender is ordered under the 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(s) specified in the European arrest warrant(s) consists in whole or in part".

While I accept that the provisions of this part of s.22 are drafted in rather convoluted or complicated terms, in essence the

application of S.18 of the Interpretation Act 2005 would mean that, where the singular includes the plural, as is invariably

the case unless legislation otherwise specifically requires, on its plain wording, s.22 correctly applied even when referring to

more than one warrant, nevertheless maintains the protection granted by that section under the “rule of specialty”, which,

as explained in the judgment of Denham J. is the clear purpose of s.22 of the Act of 2003, enacting, as it does, the

provisions in that regard found also in the Framework Decision.

Secondly, I am equally satisfied that even if that were not so, and the court - as it must - applies the principles enunciated by

the European Court of Justice in Case C- 105/03 Pupino, [2005] E.C.R. 1-5285 so as to implement the wording and

purpose of the Framework Decision, the same result would ensue.

The reasons for this are clear. Both the Framework Decision (Council Framework Decision of 13 June 2002 on the

European arrest warrant and the surrender procedures between Member States), and the Act of 2003 by which the State

enacted the Framework Decision into Irish law, establish a scheme or a process by which persons may be surrendered in a

manner which is more fluid and less complex than that which previously existed by means of bi lateral extradition

arrangements between states. That scheme or process provides for a person to be surrendered in two circumstances, one in

the case of intended proceedings, the second where a person has been convicted and sentenced to imprisonment and is

sought for the purposes of serving a sentence(s). It is the latter situation which arises in this appeal. This judgment is

confined to the situation where two or more warrants for surrender for the purposes of serving sentences upon conviction

are presented for execution.

In the present appeal, the two warrants originally presented issued from the same judicial authority, in this case the District

Court in Ilawa, Poland, and undoubtedly it would have been more convenient had both offences, in respect of which the

respondent was sought to serve sentences upon his conviction, been included in the same European arrest warrant, rather

than in two separate warrants. However, as a matter of principle, it is appropriate to ascertain whether there is any legal

obligation to present all convictions for offences in a single warrant, and in particular whether any such obligation can be

implied from the provisions of the Framework Decision, as annexed to the Act of 2003. I am satisfied that there is no

obligation to do so, and also that the absence of any such obligation is wholly understandable, when the structure of the

Framework Decision and its relevant provisions are examined.

Recital (6) of the Framework Decision states that the European arrest warrant is the first concrete measure in the field of

criminal law implementing the principle of mutual recognition which the European Council, referred to as the “cornerstone

of judicial cooperation”, from which it is clear that the basis of the engagement is that of judicial cooperation, and not

merely cooperation between member states, or between member state central authorities.

According to the structure of the Framework Decision, there is provision for the designation in each member state of

“judicial authorities”, and of a “central authority”. By recital (9) of the Framework Decision the role of a central authority is

circumscribed by the following terms:

“The role of central authorities in the execution of a European arrest warrant must be limited to practical and

administrative assistance.”

Article 6 of the Framework Decision defines the “issuing judicial authority” and the “executing judicial authority” as being

the “judicial authority of the member state competent to issue or to execute a European arrest warrant by virtue of the law

of the member state”. Article 7 on the other hand permits but does not oblige a member state to designate a central

authority, under 7(1) to “assist the judicial authority”, or under 7(2) and if necessary by reason of the organisation of its

judicial system, to be “responsible for the administrative transmission and reception of European arrest warrants and for

other official correspondence relating thereto”.

Next, the Framework Decision itself provides for certain content to be included in the European arrest warrant, in

accordance with the Annex to the Decision itself. The model warrant as provided for in the Annex states, in its title, that it

has been issued by a “competent judicial authority”, but it is unnecessary to consider the detail of the model warrant further

for the purposes of this judgment.

Each of the provisions referred to above is mirrored in Irish law by, and indeed the Framework Decision itself is annexed to,

the Act of 2003, which has been amended or substituted in some respects by the Criminal Justice (Terrorist Offences) Act,

2005. S.6 of the Act of 2003 designates the appellant in this appeal as the “central authority”. An “issuing Member State” is

defined by s.2 in the following terms:

“ …means, in relation to a European arrest warrant, a Member State, designated under section 3, a judicial

authority of which has issued that European arrest warrant;”

A “judicial authority” is defined by s.2 as follows:

“means the judge, magistrate or other person authorised under the law of the Member State concerned to

perform functions the same as or similar to those performed under section 33 by a court in the State.”

Section 33 of the Act of 2003 provides that the District Court, Circuit Court, High Court or Special Criminal Court may

each issue a European arrest warrant, provided a domestic warrant has been issued for the arrest of a person but has not

been executed, and that person is outside the state.

It is clear therefore that, according to Irish law, a “judicial authority” in another member state is not the central authority

which might transmit a warrant, its competence being limited by the provisions of the Framework Decision itself, but rather

any “judge, magistrate or other authorised person” who carries out the same functions, in this case issuing such a warrant,

as a judge in the State would, in any of the above courts.

Having regard to the foregoing, there exists the distinct possibility in this jurisdiction that more than one judicial authority

might issue a European arrest warrant in respect of the same person. The issuing of a European arrest warrant depends on

the division of competence and jurisdiction between the several courts or parties falling within the ambit of “judicial

authority” as defined in a member state, it not necessarily being the case, as it is not the case necessarily in this jurisdiction,

that only one such warrant could be issued, particularly if a person is sought pursuant to say a domestic warrant issuing from

the District Court and a warrant has also issued from the Circuit Court. Generally speaking, a lower jurisdiction does not

have competence to make orders in respect of matters within the competence of a higher jurisdiction. Provision is made in

s.33(4) and (5) of the Act of 2003 for avoiding or reducing the likelihood of an unnecessary number of European arrest

warrants issuing in respect of the same person for different offences.

The Framework Decision is intended to operate across a wide range of member states having very different courts, tribunals

and legal structures. It may reasonably be assumed, as in the State, that some internal jurisdictional division also exists in

relation to the issuing of European arrests warrants in other jurisdictions. An “authorised person” within the meaning of s.33

of the Act of 2003 in another member state often will be, but may not necessarily be, a judge or a magistrate, provided

he/she exercises the appropriate equivalent functions to those covered by s.33 of the Act of 2003. In that regard, some

writers point to the differences and distinctions in the several member states, drawing attention to some of the varying

features of the implementation of the Framework Decision in respect of, inter alia, “issuing judicial authorities” in member

states: (a) in some member states district courts, examining judges and public prosecutors have all been designated as

“issuing judicial authorities”, but in respect of some of these, a further distinction is drawn in some member states between

those designated for the purposes related to intended criminal proceedings, and those related to the execution of a sentence

(see Blekxtoon and Ballegooij Handbook on the European Arrest Warrant [2004] TMC Asser Press) for a survey of the

range of issuing and executing judicial authorities in several member states. While it is sometimes the case that reference is

made to a “Polish warrant” or a “French warrant”, such a warrant is in fact the warrant of a designated judicial authority in

a particular member state, and not necessarily one single authorised person or institution.

Miss Donnelly, senior counsel for the respondent, in the course of her oral submissions suggested that, since the Framework

Decision is silent on the question of the issuing of two European arrest warrants from one member state, it cannot be

assumed that its framers intended that more than one such warrant might issue. While it is true that the Framework Decision

does not deal expressly with more than one such warrant, save in the case of warrants issuing from two separate member

states, it seems to me that on a correct interpretation of its wording and underlying objects, and in particular to the

requirement to designate an “issuing judicial authority” and its definition, it cannot have been the intention of its framers to

place any inhibition on the surrender of a person in circumstances where two or more European arrest warrants are issued

by a designated judicial authority of a member state having power to do so.

Apart from the rule of specialty provided for in the Framework Decision and in the Act of 2003, dealt with fully in the

judgment of Denham, J., I can find no basis upon which the Framework Decision should be interpreted so as to prevent the

surrender of a person to serve sentences, nor any basis upon which the provisions of s.22 of the Act of 2003 can be

successfully invoked to preclude such surrender, on the basis only that more than one such warrant issued from one or more

judicial authorities in a member state in respect of the same person.

For these reasons, as well as those exposed by Denham J. in her judgment, I would allow the appeal and set aside the Order

of the High Court.