Supreme Court dismisses appeal regarding surrender order time limits under European Arrest Warrant Act 2003.

THE SUPREME COURT

Appeal No. 036/2012

Denham C.J.

Murray J.

MacMenamin J.

Between/

Jelena Voznuka

Applicant/Respondent

and

Governor of the Dóchas Centre, Mountjoy Prison

Respondent/Appellant

Judgment delivered on the 27th day of June 2013, by Denham C.J.

1. This is an appeal by the Governor of the Dóchas Centre, Mountjoy Prison, the respondent/appellant, referred to as “the appellant”,

against the order and judgment of the High Court (McCarthy J.) made and delivered on the 10th January, 2012. Jelena Voznuka, the

applicant/respondent, is referred to as “the respondent”.

Background – European Arrest Warrant Proceeding

2. A European Arrest Warrant was issued in Latvia in September 2007. The respondent was brought before the High Court in

proceedings pursuant to the European Arrest Warrant Act, 2003, as amended, and at the conclusion of those proceedings on the 23rd

April, 2009, the High Court (Peart J.) made an order for the respondent’s surrender. The respondent appealed to this Court and was

granted bail pending the appeal.

3. The respondent’s appeal came before this Court on the 18th November, 2010. Neither the respondent nor any legal representatives

on her behalf attended in Court. This Court ordered that the appeal be struck out, that the order of the High Court be affirmed, and

that the respondent be arrested and detained pending her surrender under the order of the High Court.

4. On the 5th January, 2012, the respondent was arrested and committed to the custody of the appellant.

The European Arrest Warrant

5. The European arrest warrant in issue relates to one offence, the entering of a premises and the unplugging of the gas supply. It is

described as follows:-

“Namely, on August 11, 2005 at 9.00-10.00 a.m. Jelena Voznuka, being aware that living premises at Talsi soseja 31/5-

13, Jurmala, are lawfully occupied by Ieva Viktorija Mizane and that she lives therein, Jelena Voznuka deceived the

employees of house management company SIA “Jurmalas Namsaimnieks” regarding necessity to unplug the gas supply in

the mentioned living premises, in absence of Ieva Viktorija Mizane, while a possibility existed to get into touch with Ieva

Viktorija Mizane, without permission of the latter and while there existed no circumstances when immediate getting into

apartment would be lawfully based, through intermediation of employees of SIA “Jurmalas Namsaimnieks” who prized up

the door locks of mentioned apartment, illegally and against to will of Ieva Viktorija Mizane entered the living premises at

Talsi soseja 31/5-13, Jurmala. Hence Jelena Mizane with her illegal actions rudely violated the fundamental interests of

Ieva Viktorija Mizane regarding inviolability of her residential premises, which provides for that nobody has rights to enter

a residential premises without lawful grounds and against will of person who lives in the concerned apartment, namely,

committed a criminal offence provided for by the 1st Part of 143rd Section of the Criminal Law.”

Habeas Corpus Proceedings

6. On the 6th January, 2012, an application was made to the High Court (McCarthy J.) pursuant to Article 40.4.2 of the Constitution.

7. The High Court ordered the release of the respondent on the 10th January, 2012, referring to time limits set out in the relevant

legislation, and finding that they had been breached in this case.

Notice of Appeal

8. The appellant filed a notice of appeal with the following grounds:-

(i) The learned trial judge erred in law in concluding that the provisions of s. 16 of the European Arrest Warrant Act,

2003, as amended, mandated the immediate release of the respondent.

(ii) The learned trial judge erred in law in determining that the period of 10 days during which the surrender of the

respondent had to be effected ran from the date upon which the respondent’s appeal to the Supreme Court was

dismissed.

Submissions

9. Written and oral submissions were made on behalf of the appellant and the respondent.

Construction of the Statute

10. At issue in this case is the construction of s. 16 of the European Arrest Warrant Act, 2003, as amended in 2009. This section has

been amended subsequently by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition

(Amendment) Act, 2012. Consequently, this decision does not refer to the current law.

11. Section 16 of the European Arrest Warrant Act, after the 2009 amendments and prior to the 2012 amendments, is relevant to this

case and made provision for when a person does not consent to his or her surrender to the issuing State. In the circumstances, the

High Court may make an order directing that the person be surrendered. Time limits are set out as follows:-

“(3) An order under this section shall take effect upon the expiration of 15 days beginning on the date of the making of

the order or such earlier date as the High Court, upon the request of the person to whom the order applies, directs.

(4) When making an order under this section the High Court shall also make an order committing the person to a prison (or

if he or she is not more than 21 years of age, to a remand institution) there to remain pending his or her surrender in

accordance with the order under this section, and shall inform the person -

(a) that he or she will not, without his or her consent, be surrendered to the issuing state, before the expiration of

the period of 15 days specified in subsection (3), and

(b) of his or her right to make a complaint under Article 40.4.2 of the Constitution at any time before his or her

surrender to the issuing state.

(5) Subject to subsection (6), subsection (7) and section 18, a person to whom an order for the time being in force

under this section applies shall be surrendered to the issuing state not later than ten days after –

(a) the order takes effect in accordance with subsection (3) (inserted by section 76(d) of the Criminal Justice

(Terrorist Offences) Act 2005), or

(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority

in the State and the issuing state.

(6) Where a person -

(a) appeals an order made under this section, or

(b) makes a complaint under Article 40.4.2 of the Constitution, he or she shall not be surrendered to the

issuing state while proceedings relating to the appeal or complaint are pending.

(7) Where a person (to whom an order for the time being in force under this section applies) is not surrendered to the

issuing state within the relevant period specified in subsection (5) and the surrender is not prohibited by reason of

subsection (6) the High Court may remand the person in custody or on bail for such further period as is necessary to

effect the surrender unless it considers it would he unjust or oppressive do so.”

12. This section of the statute is not very clear, it is ambiguous, and gives rise to difficulties in interpretation. In such circumstances,

any construing of the section would have to favour freedom over detention and surrender.

13. Fundamental relevant facts in this case are as follows:-

On the 23rd April, 2009, the High Court made an order for surrender of the respondent. A stay was put on this order which ran until

the dismissal of the appeal by this Court on the 18th November, 2010. From that date the stay no longer existed. No application in

relation to the matter was made to the High Court. A warrant was issued on the 18th November, 2010. The respondent was arrested

on the 5th January, 2012. An application for this Article 40.4 inquiry was commenced on the 6th January, 2012.

14. The first point raised by the appellant was that the High Court decision was based on s.16 of the Act of 2003, without regard to

the amendment effected to sub-section 7 of s.16 by the Criminal Justice Act, 2009. While the appellant is correct in his submissions

on this point that is not decisive for the issue in this appeal since, as the appellant expressly acknowledged, the substantive ground

of the appeal is the second ground, namely, whether the period of 10 days referred to in sub-section 5 of s.16 ran from the date

upon which the respondent’s appeal to the Supreme Court was dismissed, namely, the 18th November, 2010. That sub-section, inter

alia, requires that the person in question be surrendered not later than 10 days after the order for surrender, in this case the order

made by the High Court, takes effect.

15. Neither O Fallúin v. Governor of Cloverhill Prison [2007] 3 I.R. 414, nor Rimsa v. Governor of Cloverhill Prison and ors [2010] 7 JIC

2802 are helpful to this case, as the statute has been altered. Nor are the cases Re: Linden’s Application for Judicial Review [1998]

N.I. 316 or Re: McKenna’s Application for Judicial Review [1998] N.I. 287, referred to by counsel, of any assistance.

16. The case falls to be decided on the ambiguous words in s. 16, under the 2009 amendment, as to time limits.

17. All the relevant circumstances include the fact that there was no application to the High Court after the 18th November, 2010,

when this Court dismissed the appeal and a warrant of arrest was issued, prior to the arrest of the respondent on the 5th January,

2012.

18. The words of s. 16 set out time limits, including 15 days and 10 days. The statute is not clear and must be construed consistently

with the policy of the Act and the Framework Decision, which favour expeditious proceedings.

19. Section 16, sub-section 3 provides that the High Court Order for surrender should take effect upon the expiration of 15 days from

the date of the making of the Order. In this case that means 15 days from the date when the stay placed on the Order of the High

Court pending appeal ceased to have effect. That was the 18th November, 2010, when the appeal was dismissed. The 10 day period

within which the person concerned must be surrendered then begins to run subject to the provision of sub-section 7 that where a

person is not surrendered to the issuing state within the relevant period, the 10 days, the High Court may remand the person in

custody or on bail for such period as is necessary to effect surrender, unless it considers it would be unjust or oppressive to do so. As

indicated in paragraph 17 above, no application was made to the High Court pursuant to sub-section 7. Consequently, the time within

which it was permissible to surrender the respondent, as provided for in sub-section 5, had expired during December, 2010 and before

the arrest of the respondent on 5th January, 2012. It was argued on behalf of the appellant that the order for surrender did not take

effect until the respondent was actually arrested on foot of the warrant issued by the Supreme Court. Counsel for the appellant

sought to support this proposition by drawing an analogy with a sentence imposed by a court following conviction where a defendant

is not actually before the court at the time of sentence and a warrant is issued for his or her arrest for the purpose of giving effect to

that sentence. In such circumstances, counsel argued that the sentence did not begin to take effect or to run until the person was

actually arrested. By analogy, it was submitted, the time provided for in sub-section 5 should not be treated as running until the

respondent had been arrested. However, the law governing the sentencing and imprisonment of convicted persons cannot be

considered as analogous to a specific statutory scheme governing the detention for administrative or practical purposes of persons for

the purpose of giving effect to an order for surrender. The statutory scheme must be interpreted within its own terms. On that basis,

as already indicated, the time for surrender had expired before the respondent was arrested.

20. As the s. 16 relevant to this case is no longer in force there is no need to develop the analysis any further. However, it is

appropriate to state that the time limits run from the order of the court. A warrant is a mechanism to arrest a person, but it must be

executed within any relevant statutory time limits. It may well be that the operation of the statute as it then stood would lead to

“absurd” results, but that is the way the statutory law was then framed. It may have been one of the reasons why the section was

subsequently amended by the Oireachtas.

21. For the reasons given, I would dismiss the appeal.

22. There was a motion also before the Court filed by the appellant seeking to adduce fresh evidence. However, in the circumstances

of the case, it does not arise and I would dismiss that motion also.