Supreme Court dismisses appeal allowing surrender under EAW Act where minimum sentence gravity thresholds are met.

THE SUPREME COURT

39/2009

Hardiman, J.

Macken, J.

Finnegan, J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between:

Minister for Justice Equality and Law Reform

Applicant/Respondent

and

Grzegorz Dus

Respondent/Appellant

Judgment delivered by Macken, J. on the 31st day of July 2009.

This is an appeal from the judgment of the High Court (Peart, J.) and the Order made thereon on the 28th January 2009, by

which the appellant was ordered to be surrendered to the authorities in Poland pursuant to the provisions of s.16 of the

European Arrest Warrant Act 2003, as amended, (hereinafter “the Act of 2003”).

Background:

A European Arrest Warrant was issued by the appropriate judicial authority of Poland in respect of the appellant, for the

purposes of having him surrendered to serve the remainder or outstanding portion of a sentence imposed on him in respect

of two separate offences. The sentence was one of four years and six months and was a single or composite sentence.

The warrant discloses that one of the offences is one which falls within the provisions of Article 2.2 of the Framework

Decision, being the offence of “racketeering and extortion” and in the warrant - which was presented in the form in which it

appears in the Annex to the Framework Decision - the relevant box referring to that offence was ticked. The second offence

not being an offence which falls within Article 2.2 of the Framework Decision, is nevertheless accepted as being a

corresponding offence within s.5 of the Act of 2003. In the present case, that offence corresponds to the offence of robbery

within this jurisdiction.

The appeal is opposed by the respondent.

The judgment:

In the High Court it was agreed, or established, that the balance of the sentence yet to be served is one year and 173 days.

The learned High Court judge found that the length of sentence satisfied the minimum gravity requirement of at least four

months provided for in s.38(1)(a)(ii) in the Act of 2003 which implemented the Framework Decision in Irish law. The

learned High Court judge also found that the word “offence” is used loosely and interchangeably in the Framework

Decision, and insofar as use of the word “offence” is concerned the court was entitled to have regard to the provisions of

the Interpretation Act 2005 by which a word importing the singular can also be read as importing the plural. The learned

High Court judge distinguished the facts arising in this court’s decision in Minister for Justice Equality and Law Reform v

Ferenca [2008] (unreported, 31st July 2008) and found that, contrary to the position in that case, the minimum gravity

requirement was here met.

The appeal:

There is really only one issue arising in this appeal, and it concerns the appellant’s contention that the provisions of s.38 of

the Act of 2003, as amended, do not permit the surrender of the appellant pursuant to the warrant. This is based on a rather

technical argument in the following terms. Where a person has been made subject to a combined or composite sentence in

the issuing state as here, and that state does not distinguish the term of the sentence imposed in respect of one offence as

compared to the other offence, it is not possible to conclude that the minimum gravity requirements of the section have been

met. Secondly, the Act of 2003 must be interpreted and applied independently to offences which fall within Article 2.2 of

the Framework Decision pursuant to s.38(1)(b) and an offence which is a corresponding offence to one within the

jurisdiction, which falls under s.38(1)(a)(ii). This arises it is argued by virtue of the wording of s.38 itself, which is in the

following terms:

1 Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in respect of an offence

unless –

(a) the offence corresponds to an offence under the law of the state and –

i. 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

ii. 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.

or

(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.

Section 38(1)(a) reflects, in the Act of 2003, the provisions of Article 2.1 of the Framework Decision which provides:

“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 twelve months

or, where a sentence has been passed or a detention order has been made, for sentences of at least

four months.”

Senior counsel for the appellant relies on the decision of this court in Minister for Justice Equality and Law Reform v

Ferenca, supra., in support of his contention that the issuing state is obliged, in order to comply with the provisions of the

Act of 2003, to furnish information in relation to the sentence imposed in respect of each of the offences for which the

appellant has been sought to be surrendered, invoking in that regard, my judgment in which I made certain observations in

respect of the provisions of s.38 of the Act of 2003. It cannot however be overlooked that the decision in that case turned

on a very particular and specific difficulty. While the sentence was a composite sentence in respect of three different

offences, one of those offences was neither an offence which fell within the provisions of Article 2.2 of the Framework

Decision, nor a corresponding offence within the meaning of s.5 of the Act of 2003. In such circumstances, as was pointed

out by Murray, C.J. in the same case:

“The question remains whether any order for surrender can be made on foot of the European Arrest

Warrant given that two of the three offences for which the sentence of two years and nine months was

imposed are offences in relation to which a surrender order may be made.

As I pointed out at the outset and which is clear from the terms of the European Arrest Warrant, the

sentence imposed is single sentence, what one might call a composite sentence, imposed for three

offences collectively. If the appellant were to be surrendered to serve that sentence he would be

surrendered to serve a sentence which was in part imposed for the first offence. I have already concluded

above that the first offence is an offence for which s.38(1) says the appellant should not be surrendered.

There is obviously no basis on which this court can apportion part of the sentence of two years and nine

months among the three offences so that he could be surrendered for the purposes of serving the amount

of the sentence which related to the second and third offences.

Since that cannot be done, and he cannot be surrendered to serve any sentence in respect of the first

offence, the request for his surrender must be refused.”

That was the basis upon which the appellant in that case could not be surrendered, and the basis for the finding of the court.

In my judgment on the same issue I specifically stated:

“I make no finding at all based on the more general argument that the warrant would have to fall even if

all three offences were ones upon which the appellant could have been surrendered.”

It is true that in that case I endeavoured to find a true meaning for the inelegantly drafted provisions of s.38, but the

Ferenca case is wholly distinguishable, and is distinguished, from this case by virtue of the fact that one of the three

offences in respect of which a composite sentence had been imposed, was an offence in respect of which the appellant

could not be surrendered at all. In the present appeal the position is entirely different. One offence is an offence in respect of

which Article 2.2 applies, and the other is clearly a corresponding offence, and there is no debate in respect of this.

The court is obliged to interpret the Act of 2003 in accordance with the intention and the purpose of the Framework

Decision (see Pupino case c-105103 [2005] E.C.R. I-5285 and this has been stated in several cases in this jurisdiction

applying the decision in Pupino which do not require to be cited. The learned High Court judge found that the use of the

words “offence” and “offences” are used both loosely and interchangeably in the Framework Decision itself, and gave

examples of this. Moreover, the form of the warrant in the present case accords with the Annex to the Framework Decision

and the form clearly contemplates, by its wording, that a warrant may relate to more than one offence. It has in fact a

specific portion in it where the number of offences to which it relates is to be inserted. Nevertheless in the Annex it is

required that the issuing state merely specifies the length of the custodial sentence imposed, and of that sentence the amount

remaining to be served. The form of warrant does not, on its face, require separate sentences to be specified. The form of

the warrant in the Annex forms part of the Act of 2003 because the Framework Decision itself together with the Annex,

form a schedule to that Act.

The Framework Decision is clearly intended to and is accepted as having been intended to be capable of being applied

readily in a wide variety of different jurisdictions and in relation to different and varying methods of imposing sentence.

Interpreting the provisions of the act of 2003 by reference to the intention and purpose of the Framework Decision including

the Annex is an obligation imposed on each member state as is also clear from the jurisprudence. Since the provisions of

section 38(1)(a) are disjunctive, the appellant can be surrendered provided that the minimum gravity thresholds under either

(a)(i) or (a)(ii) is met. In the present case the minimum gravity is significantly exceeded in respect of the offences, one

offence having a maximum penalty of 10 years, and one offence of having a maximum penalty of 12 years. I am satisfied

also that a term of imprisonment or detention of not less than four months had been imposed on the person in respect of the

offences arising in the present case.

Counsel for the appellant has invoked case law arising under the Extradition Act 1965. As has long been stated and repeated

in the jurisprudence, extradition is an area of law which is sui generis. Equally the case law makes it clear that the European

Arrest Warrant is also a new procedure entirely and also sui generis. It is not possible, as I have stated in other cases, to

transpose automatically the jurisprudence arising in extradition cases, to facts arising in European Arrest Warrant cases. As

was stated by Murray, C.J. in Minister for Justice Equality and Law Reform v Sliczynski (unreported, the Supreme Court,

19th December 2008):

“As I mention later in this judgment the act must be interpreted in the light of the terms of the Framework

Decision which it implements and with particular regard to the objectives to be achieved. The system or

mechanism of surrender created by the Framework Decision applies in all member states of the European

Union. Recital 5 in the preamble to the Framework Decision refers to "the introduction of a new simplified

system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of

criminal sentences ..."It has as its object" to remove the complexity and potential delay inherent …" in pre-

existing extradition procedures.”

It seems to me that the contention on the part of the appellant that the appellant should not be surrendered because of the

terms of s.38 of the Act is untenable because it would make it impossible to give effect to a warrant, which is in the actual

format of the Annex to the Framework Decision, the purpose of the Act of 2003 being to facilitate surrender unless it is

wholly clear that the Act of 2003 should not permit this. In any event I am satisfied that there is no legal reason for

interpreting s.38 in any manner other than disjunctively, and it is plain that, read in such a way, the offences clearly meet the

minimum threshold requirement. Any alternative requires the impermissible addition of words or phrases to the section.

Having regard to the foregoing, I would affirm the Order of the High Court and dismiss the appeal.