Supreme Court allows appeal on abuse of process grounds due to legislative change after successful surrender refusal.

THE SUPREME COURT

Record No. 98/11

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between:

Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Ciarán Tobin

Respondent/Appellant

JUDGMENT of Mr. Justice Fennelly delivered the 19th day of June, 2012.

1. I write this short concurring judgment in order to express my agreement with the judgment of Hardiman J that this Court should

decline to order the surrender of the appellant to Hungary on the grounds of abuse of process. I explain that I do so because of the

unique history of the case and that I do not share all the reasoning of Hardiman J.

2. This is a tragic case. It originates in a traffic accident when two children met their untimely deaths by being hit by a motor car

which was being driven by the appellant. The appellant was convicted by a Hungarian Court of an offence under the law of that

country.

3. It is also a unique case in the short history of the European Arrest Warrant in Ireland. The appellant successfully resisted his

surrender under a warrant by a judgment of this Court interpreting the Irish law which implemented the Framework Decision. The law

was changed in response to that decision and a fresh warrant was issued by a Hungarian judicial authority.

4. In my judgment in the earlier case of Minister for Justice, Equality and Law Reform v Tobin [2008] 4 I.R. 42 (“Tobin 1”), at page 68,

I described the judgment of the Hungarian court as “detailed and meticulous.” The other members of the Court agreed with that

judgment. In my view it is not open to this Court to go behind that judgment or to question its correctness. While the appellant

criticises the refusal of the Hungarian court to admit his statements and those of his witnesses by reason of what certainly appears

to us to be an unusual procedure, it has to be remembered in considering any question of the fairness of the procedures of the

Hungarian court, that the appellant, having been permitted by the Hungarian court to leave Hungary, voluntarily decided not to return

to that jurisdiction for his trial and chose to be represented by a lawyer. I have to say that I respectfully dissent from those parts of

the judgment of Hardiman J which criticise the Hungarian court and suggest that the appellant was not guilty of any offence. That is

not a matter for this Court. Murray C.J., in delivering judgment in Minister for Justice, Equality and Law reform v Brennan [2007] 3 I.R.

732 at page 741 observed:

“The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary

according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may

have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise

exigencies of our Constitution with regard to these matters.”

4. He accepted that the courts have “jurisdiction to consider the circumstances where it is established that surrender would lead to a

denial of fundamental or human rights.” He added that: “There may well be egregious circumstances, such as a clearly established

and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be

necessary to protect such rights.” In my view the present case goes nowhere near establishing such circumstances.

5. However, I agree with Hardiman J that the Court should, in the unique circumstances of this case, decline to surrender the

appellant to Hungary on the ground of abuse of process. The essence of the abuse of process alleged is encapsulated in the following

question raised by the certificate from the learned High Court judge:

"(a) Whether it is an abuse of process and/or contrary to articles 6, 34 and/or 37 of the Constitution or otherwise

impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to

that Act seeking the extradition of a person for a second time where:

(ii) The first such proceedings failed following a determination by the High Court and the Supreme Court that the appellant

had not fled from the requesting State as required pursuant to the law as it stood at the time of the proceedings.

(iii) The second proceedings have been instituted following an amendment of the European Arrest Warrant Act, 2003, so

as to remove the requirement that the appellant had fled from the requesting State.

(iv) The warrant on foot of which the second request was made is substantively the same as the first.

6. As Hardiman J says in his judgment, this is an entirely unique case without precedent in this country. The surrender of the

appellant was legitimately sought by the Hungarian judicial authority on foot of a European Arrest Warrant. Hungary was not

responsible for the fact that there was included in the Irish Act implementing the Framework Decision a requirement that the person

whose surrender was sought should have “fled” the issuing state. That legal provision was the responsibility of this State. Counsel for

the appellant strongly criticised the Minister, as Central Authority, for putting the appellant through the entire legal process of

enforcing the Warrant before the High Court but especially for pursuing an appeal before this Court. Indeed particular emphasis was

placed on the latter point. Hindsight is, of course, always perfect. Legal decisions carry the weight of unquestioned authority once

they have been pronounced. I am not sure that I can share the heavy criticism of the State authorities expressed throughout the

judgment of Hardiman J for pursuing the first warrant at least to the High Court. What was the State to do? Could it simply have

informed the Hungarian judicial authority that Ireland had implemented the Framework Decision in a manner which precluded surrender

where the person had not “fled?” That would have amounted to a breach of an elementary obligation under international law, where

there was no suggestion that the warrant had not been properly issued.

7. Whatever about that, the resulting position was extremely unfortunate, to use no stronger expression, so far as the appellant was

concerned. The State’s pursuit of the matter on appeal exposed him to additional and, as it turned out, unnecessary hardship,

expense and distress.

8. Following the decision of this Court, the appellant enjoyed the status of a person who could not be surrendered to Hungary at least

until the law was changed. All this has been fully and elegantly explored in the judgment delivered today by O’Donnell J. I regret that I

am not, in the final analysis, convinced that the appellant acquired any right in law (for the purposes of s. 27 of the Interpretation

Act, 2005) as a result of his success on appeal in Tobin 1 which survived the repeal of the “fled” requirement. However, he without

any doubt enjoyed that right pending the amendment of the legislation.

9. The legislation was then amended by this State. Indeed this had to be done in order to bring Irish law into conformity with the

Framework Decision. That is cold comfort for the appellant. He is the only person whose surrender had been refused by reason of the

“fled” provision. The amendment, necessary as it was on general grounds, exposed him to the possibility that a second European

Arrest Warrant would be issued, which is indeed what has occurred. If the legislation had been enacted originally in conformity with

the Framework Decision, he would at least have had his case decided on appropriate grounds. He would either have been surrendered

to Hungary or he would have succeeded on appeal on one of the other grounds advanced in Tobin 1. He would not have been

subjected to the same judicial process twice.

10. The consequence of the amending legislation was that the appellant has faced a second process of arrest, objection, High Court

hearing and appeal. All this is the result of what appears to have been a legislative error followed by its correction. None of this was

the responsibility of the appellant. For the reasons given by Hardiman J, this is quite different from cases where an earlier proceeding

has failed by reason of defects in a warrant. In those cases it will be apparent that the surrender (or extradition as the case may be)

is the result of a particular defect in the warrant and that, on established principles, the error can be remedied and a new warrant

can be issued without the defects.

11. These are in essence the reasons why I agree with Hardiman J that the appeal should succeed on the ground of abuse of

process. The principle of national procedural autonomy permits the courts of the Member States to apply national procedural rules so

long as they do not infringe either the principle of non-discrimination or of effectiveness.

12. I am not sure that it is relevant to introduce the element of inequality of arms between the appellant and the State authorities.

Inequality in that sense will be present in every case under the Framework Decision or in extradition generally. I cannot see that it

adds anything to the appellant’s case. Nor do I believe that delay would constitute a ground for refusing surrender on the facts of

this case. This Court in its decision in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669 considered how an

issue of delay should be treated in the context of the European Arrest Warrant in the case of surrender for prosecution. The

possibilities must be more limited where a conviction has already recorded.

13. I would confine the decision on abuse of process to the special and unique circumstances of this case. There was an Arrest

Warrant; the appellant was arrested and taken before the Court; he opposed his surrender through the judicial process in accordance

with the law. He succeeded. It was not then suggested that the law was erroneous. The appellant had no reason to expect that it

would be changed, if he successfully invoked its provisions. The law was changed. His surrender was sought a second time. I would

allow the appeal and decline to order the surrender of the appellant.