Minister for Justice, Equality and Law Reform -v- Altaravicius [2006] IESC 23 (05 April 2006)

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Minister for Justice, Equality and Law Reform -v- Altaravicius [2006] IESC 23 (05 April 2006)
URL: http://www.bailii.org/ie/cases/IESC/2006/S23.html
Cite as: [2006] IESC 23, [2006] 3 IR 148, [2006] 2 ILRM 241

[New search] [Help]

Judgment Title: Minister for Justice, Equality and Law Reform -v- Altaravicius

Neutral Citation: [2006] IESC 23

Supreme Court Record Number: 446/05

High Court Record Number: 2005 8 EXT

Date of Delivery: 05/04/2006

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J.

Judgment by: Murray C.J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Murray C.J.	Appeal allowed - set aside High Court Order	Hardiman J.
Denham J.	Appeal allowed - set aside High Court Order	Hardiman J.

Outcome: Allow And Set Aside

- 17 -

SUPREME COURT

Murray C.J. 446/05
Denham J.
Hardiman J.

BETWEEN

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

PLAINTIFF / APPELLANT

-v-

VALDEMARAS ALTARAVICIUS

DEFENDANT / RESPONDENT

“The European Arrest Warrant requesting the arrest and surrender of the respondent, Valdemaras Altarvicius, is not in accordance with law and is unlawful, void and of no legal effect.”

That could hardly be considered a statement, even in summary form, of grounds. There is no indication whatsoever of why it is alleged the warrant is not in accordance with law. Neither does it refer to any material fact relied upon, if any. Such details are required by Rule 5 of Order 98 of the Rules of the Superior Courts (S.I. 23/2005).

It is common case that the respondent sought and obtained a number of adjournments of the hearing to be held pursuant to s. 16 of the Act in order to obtain the advice of an expert in Lithuanian law, the last of such adjournments being on the 20th June, 2005. On 20th July, 2005 the respondent filed a notice challenging the constitutionality of a large number of the provisions of the Act of 2003 and on 11th October, 2005 the hearing of the s. 16 application was fixed for 27th October, 2005.
By letter dated 25th October, 2005 the respondent, through his solicitors, wrote to the appellant’s solicitors seeking a copy of an arrest warrant of 8th February, 2002 issued by a District Court in Lithuania. No reason was given as why the copy warrant was considered relevant. This Lithuanian District Court arrest warrant was referred to in the European Arrest Warrant and is the so called underlying domestic warrant. The letter also stated that in the event of that District Court warrant not being made available to the respondent an application would be made to the High Court at the hearing of the s. 16 application for an Order directing discovery of the document.

This is what occurred when the matter came on for hearing before the High Court on 27th October, 2005. In summary what the respondent contended before the High Court was that discovery of the domestic warrant in question was required so as to enable the respondent to satisfy himself or at least consider whether the European Arrest Warrant is consistent with it. There could be, it was submitted, an issue of an inconsistency or lack of correspondence between the underlying warrant and the recitals on the face of the European Arrest Warrant. Insofar as s. 4A of the Act of 2003, as inserted by s. 69 of the Criminal Justice (Terrorist Offences) Act, 2005 provided for a presumption that an issuing State will comply with the requirements of the Framework Decision he wished to be in a position to consider whether that presumption could be rebutted. It was also submitted that since the onus is placed upon the respondent to dislodge that presumption he was entitled, as a matter of fair procedures, to see a copy of the domestic warrant in question in order to consider whether the presumption could be rebutted.

The High Court decision
The Order of the High Court directed that the Domestic Warrant be furnished to the respondent in this case.

It is important to emphasise that the decision of the learned High Court Judge did not stem from any fact or circumstance peculiar to this particular application other than the request for a copy of the domestic warrant.

In his judgment he stated that the considerations which led him to make this Order in this case “are likely to apply in all cases” concerning an application to give effect to a European Arrest Warrant. In his judgment he concluded:

“… it would seem to follow that in each case a copy of the underlying Domestic Warrant should either accompany the European Arrest Warrant or at least be available to the respondent and to the Court in sufficient time prior to the hearing of the application for the Order for Surrender. If that is done, it will obviate the need for an application for discovery. It is the case also, if I am correct about the Court’s duty to ensure that the European Arrest Warrant is “duly” issued, then even if the respondent fails to satisfy the Court of the relevance and necessity for the production of the Domestic Warrant for the purpose of any issued raised by him by way of Points of Objection, his natural justice right to a copy of same would nevertheless be difficult to overlook.”

Accordingly he went on to make the Order not, as he put it:

“… on the basis of a discovery application, but on the basis that a copy of the warrant is something to which the respondent is entitled, should he express a wish to be provided with same.”

I propose to deal with each of these aspects of the High Court decision in turn.

(i) Section 11 of the Act of 2003 and Article 8 of the Framework Decision
Section 11(1) and (1A) if the European Arrest Warrant Act, 2003 as substituted by s. 2 of the Criminal Justice (Terrorist Offences) Act, 2005 govern the form of the European Arrest Warrant and specifies what it should contain.

The relevant provisions are:

11. – (1) A European Arrest Warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.

(1A) Subject to subsection (2A), a European Arrest Warrant shall specify –

…

(e) That a conviction, sentence or detention Order is immediately enforceable against the person, or that a warrant for his or her arrest, or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of that offence,

…

Subsection (2A) is not relevant to the issues in these proceedings.

Section 11.1(A) of the Act is clear and unambiguous on the question as to whether it is necessary to provide with or attach to a copy of a domestic warrant of the issuing Member State. For that purpose the European Arrest Warrant only has to specify that a warrant for a person’s arrest has been issued in respect of the offence for which his or her surrender is sought and details given as provided for in the form in the Annex to the Framework Decision. It clearly does not go so far as to require that a copy of that warrant be incorporated in the European Arrest Warrant or be attached to it. The European Arrest Warrant in this case contains the necessary statement to comply with s. 11.1(A). That has not really been in issue in the case. That warrant is in the form set out in the Annex to the Framework Decision as required by s. 1(1) of the Act.

If that was the only provision governing what a European Arrest Warrant should specify the issues in this matter might have been more readily resolved. Although the Framework Decision cannot, in terms of community law, have direct effect (since Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and make it directly applicable within the State. This is achieved, inter alia, by s. 10 of the Act of 2003 which provides that where a European Arrest Warrant has been duly issued in respect of a person “that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing State”. The Act does not confine itself to including the Framework Decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the Courts to interpret and apply the Framework Decision directly but it is sufficient for present purposes to note that s. 10 means that in deciding on an application for a surrender pursuant to the terms of the Act of 2003 the Court must apply both the provisions of the Act and the Framework Decision. It is, to say the least, an idiosyncratic method of legislating and likely to create ambiguity.

Article 8 of the Framework Decision also deals with the content and form of the European Arrest Warrant, the relevant part of which provides:

“1. The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex:

…

(c) Evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;”

So the learned High Court Judge had not only to look at s. 11(1A) governing the content of the European Arrest Warrant but also Article 8.1(c) of the Framework Decision on the same matter. It was the use of the word “evidence” in the Framework Decision, a word not used in s. 11, which occupied much of his considerations. In the ordinary scheme of things the function and purpose of the appropriate national legislative measure is to give effect to a Framework Decision. Article 34(2)(b) of the Treaty on European Union, as amended by the Amsterdam Treaty, 1997, provides that “Framework Decisions shall be binding upon the Member States as to the result to be achieved but shall leave it to the national authorities the choice of form and method. They shall not entail direct effect …”

When applying and interpreting national provisions giving effect to a Framework Decision the Courts “… must do so as far as possible in this light of the wording and purpose of the Framework Decision in order to attain the result which it pursues …” (C-105/03 Pupino ECJ 16th June, 2005). The principle of conforming interpretation is limited, as the Court of Justice has pointed out in Pupino and other cases, to the extent that it is possible to give such an interpretation. It does not require a national court to interpret national legislation contra legem. If national legislation, having been interpreted as far as possible in conformity with community legislation to which it purports to give effect, but still falls short of what is required by the latter, a national Court must, as a general principle, apply that legislation as interpreted although there may be other consequences for a Member State which has failed to fully implement a Directive or Framework Decision.

Thus this Court is in the unusual position of having to interpret and apply Article 8 of the Framework Decision directly because of the effect given to it in national law by the Oireachtas and not by Community Law. A reference of a question concerning the interpretation or application of the Framework Decision to the Court of Justice for a preliminary ruling pursuant to Article 35.1 of the Treaty on European Union cannot be made since Ireland has not made a declaration accepting the jurisdiction of the Court of Justice to give such a preliminary ruling which Article 35.2 makes a precondition to any such jurisdiction. It is a matter for this Court to determine, in final instance, the interpretation of the Framework Decision but I do not think it is necessary to refer generally to the principles and methods of interpretation of community law since I believe the issue in this case can be resolved on the basis of one of those methods namely, the ordinary meaning of the text of the provision in question.

If one turns to the terms of Article 8 of the Framework Decision, although worded in somewhat different terms to the Act, I do not think that the result is any different even though it says that the information to be set out in the warrant should include “evidence” of the domestic warrant. At least that is the term used in the English language version and its equivalent term ‘fianaise’ is also used in the Irish language version.

The next thing which is clear is that Article 8 does not specify that a copy of the domestic warrant shall be part of the information set out in the European Arrest Warrant. That would have been the obvious thing to state if that is what was intended.

Article 8.1 also states, in common with Article 11.1(A) of the Act, that the European Arrest Warrant shall be in the form contained in the Annex. The relevant part of the form in the Annex is (b) which reads as follows:
“Decision on which the Warrant is based:
1. Arrest Warrant or judicial decision having the same effect: ……….

Type: ……….

2. Enforceable judgment: ……….

Reference: ……….”

So far as the form set out in the Framework Decision is concerned it is clear that all which it envisages is that certain information is given concerning an underlying domestic warrant or enforceable judgment, as the case may be. It does not in any sense suggest that a copy of the domestic warrant or judgment in question should be part of the European Arrest Warrant.

This interpretation is to my mind confirmed by the introductory words to Article 8 which refers to the European Arrest Warrant containing “the following information set out in accordance with the form contained in the Annex;” (emphasis added)

This is what the European Arrest Warrant in this case does. It gives information concerning the underlying domestic arrest warrant as required by the Article and the Annex. It states the date when the ruling issuing that arrest warrant was made and the Court by which it was made. It refers to the type of warrant as being an arrest warrant and goes on, although in my view unnecessarily, to refer to the enforceable judgment as being a judgment “to arrest” and gives a reference number. It is axiomatic that the term “evidence” falls to be interpreted according to its context (see Brady –v- Haughton & Ors [The Supreme Court, unreported, 29th July, 2005]). Information may be evidence of the existence of something. The term “evidence” is often used outside the context of court proceedings but even in court proceedings details or information concerning the existence of a thing may be sufficient. In any event, neither Article 8 nor the form contained in the Annex, require a copy of the domestic arrest warrant to be furnished or require its production.

The judicial authority of the issuing State has stated in the European Arrest Warrant that such a warrant was issued, the date it was issued, the Court by which it was issued and its reference number. That information is evidence of the existence of an enforceable warrant against the person in question. In reality what the Framework Decision requires is that information is given as to existence of an underlying domestic warrant or judgment, where this exists, including information concerning the nature or type of warrant of judgment. This has been complied with.

Accordingly the reference to the domestic warrant in the European Arrest Warrant fulfils the requirements of both s. 11 and Article 8.

I would add that, although it is not a necessary consideration for present purposes, I am confirmed in this view by some of the other language versions of the Framework Decision. The Decision is authentic in each of the official languages. In its French version Article 8.1(c) refers to “l’indication de l’existence d’un jugement exécutoire, d’un mandat d’arrêt …” This may be interpreted as meaning ‘specifying’ or literally indication concerning the existence of the underlying warrant. Similar terminology is used in the Italian, Spanish, Portuguese and German language versions. (indicazione dell’esistenza; la indicacion de la existencia; indicacao da existencia; die Angabe … vorliegt.)

(ii) Section 4A of the Act of 2003, as amended
The learned High Court Judge also placed some reliance on the provisions of s. 4A of the Act of 2003 in coming to his conclusion.

That section provides:

“It shall be presumed that an issuing State will comply with the requirements of the Framework Decision, unless the contrary is shown.”

That section only arises for consideration when an application for surrender is made. The section is couched in the future tense and plainly speaks of future compliance by the issuing State with the requirements of the Framework Decision subsequent to the making of an Order for a person’s surrender. This is quite logical since the Framework Decision imposes duties and obligations on the issuing State concerning the manner in which they deal with the person surrendered after surrender has taken place. Some of these are to be found in Chapter 3 of the Framework Decision dealing with “Effects of the Surrender”. One example is to be found in Article 26.1 where the issuing Member State is obliged to deduct all periods of detention arising from the execution of a European Arrest Warrant from the total period of detention to be served in the issuing Member State.

In my view, s. 4A is not relevant to a question of whether an issuing State has complied with the Framework Decision in respect of a European Arrest Warrant already issued or whether that warrant conforms to the form of warrant required by the Act or the Framework Decision.

Although I have concluded that the presumption referred to in s. 4A is not relevant to the circumstances of this case it is undoubtedly the case that extradition arrangements, whatever their form, between this country and other States have been applied by the Courts on the presumption that those States have complied or will comply in good faith with their obligations under the relevant Treaty or statutory provisions governing those arrangements. Generally speaking extradition arrangements and the like are based on recipricocity and mutuality. Each country enters into such arrangements on the presumption that the other country will comply with their requirements and apply them in good faith. In Ellis –v- O’Dea (No. 2) [1991] I.R. 251 at 262 McCarthy J. stated “The making of the extradition arrangements presupposes that the Government and the Oireachtas are satisfied, amongst other things, that, an Irish citizen being extradited to the United Kingdom, as in this instance, or to any other State with which Ireland has such arrangements, will not have his constitutional rights impaired”. In Wyatt –v- McLoughlin [1974] I.R. 378 at 390 Finlay J., as he then was, stated “… I am satisfied that I am entitled to have regard to the fact that an Extradition Act is necessarily the consequence, … of an agreement between two sovereign states reposing confidence in each other, and I should not in the first instance, suppose that the Court and other authorities of the country by which extradition is sought are using deceit so as to secure the apprehension of the plaintiff”. I take this as a correct statement of the law and is not affected by the decision of this Court in that case on appeal. In fact an example of that approach is to be found in the statement of Walsh J. (at 395) in giving a majority judgment in the appeal in Wyatt –v- McLoughlin when he stated “Until there is some reason to believe to the contrary, it is to be assumed that a statement of facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful statement of the facts of the case in respect of which the arrest is sought”. That approach is again underscored by the principles and objects recited in the preamble to the Framework Decision when it refers to mutual recognition of judicial decisions, judicial cooperation and a high level of confidence between Member States.

That is not to say, as the judgments which I have cited, and others, have made clear, that the Courts are prevented from examining applications for surrender with a view to being satisfied that relevant legislation has been complied with and personal rights which are guaranteed are not infringed. But they do so with a benefit of a presumption that the issuing State complies with its obligations. If there is cogent evidence to the contrary then an issue may arise. A mere assertion of non-compliance or the mere raising of a possibility of non-compliance, which is the case here, is not sufficient to dislodge the presumption of compliance. If that were the case it would in effect convert the presumption of compliance into a presumption of non-compliance.

Accordingly the existence of such a presumption cannot be treated as a basis for demanding the production of the underlying domestic warrant.

(iii) The Fallon Case
In reaching his general conclusions in this case the learned High Court Judge found support from the dicta of Finlay Geoghegan J. in the case of The Minister for Justice, Equality and Law Reform –v- Michael Fallon, also known as, Michéal Ó Fallúin [The High Court, unreported, 9th September, 2005]. That is a case in which Finlay Geoghegan J., having concluded that on the evidence before her in that case she should inquire into the issue as to whether a European Arrest Warrant had been duly issued in accordance with English law, adjourned the hearing to allow the applicant, the Minister, as well as the respondent if he so wished, to obtain further evidence in relation to the issues of English law or of compliance with the requirements of the Framework Decision concerning the issuing of the European Arrest Warrant by the English Court in that case.

That case is quite different from the present case. The conclusions and findings of Finlay Geoghegan J. in that case were based on the evidence of an English lawyer, Mr. Cauldwell, to which she referred in stating:

“… if a respondent puts before the Court evidence which, if accepted, establishes as a matter of probability that the European Arrest Warrant was not issued in accordance with the requirements of the Framework Decision or the requirements of the Framework Decision as implemented in the issuing State then this Court is bound to inquire whether such a European Arrest Warrant has been duly issued. The averments made by Mr. Cauldwell raise such an issue in this application.”

In the Fallon case there were two reasons why Finlay Geoghegan J. considered that the validity of the underlying domestic warrant should be examined. One arose from s. 10 of the 2003 Act which refers to a European Arrest Warrant which has been “duly” issued and the other arose from the terms of s. 16(1)(e) of that Act which provides for the making of an order of surrender by the High Court provided that the surrender of the person in question is not prohibited by Part 3 which, inter alia, provides that a person should not be surrendered if that would constitute a contravention of any provision of the Constitution.

In relation to each reason Finlay Geoghegan J. relied expressly on the existence in the affidavit by the English lawyer of evidence purporting to establish as a matter of probability that the arrest warrant in question was not duly issued. At one point she concluded that:

“The evidence presently before this Court from Mr. Cauldwell is that as a matter of English law the 2003 warrant was no longer a valid warrant to arrest after its execution on 8th January, 2004.”

Since these considerations are likely to apply in all cases, it would seem to follow that in each case a copy of the underlying domestic warrant should either accompany the European arrest warrant or at least be available to the respondent and to the Court in sufficient time prior to the hearing of the application for the order for surrender. If that is done, it will obviate the need for an application for discovery. It is the case also, if I am correct about the Court’s duty to ensure [that the European Arrest Warrant is “duly” issued, that even if the respondent fails to satisfy] the Court of the relevance and necessity for the production of the domestic warrant for the purpose of any issue raised by him by way of Points of Objection, his natural justice right to a copy of same would nevertheless be difficult to overlook.

In these circumstances I am content to deal with the matter not on the basis of a discovery application, but on the basis that a copy of the warrant is something to which the respondent is entitled, should he express a wish to be provided with same.

In any event, I fail to see why the furnishing of a copy of the underlying domestic warrant should be something to which such objection is being taken by any requesting state. It can serve only to undermine the “high level of confidence” between Member States referred to in Recital (10) to the Framework Decision.”

7. The Minister for Justice Equality and Law Reform has appealed against the said decision. Eight grounds of appeal were filed, as follows:

“1. The learned High Court Judge erred in law in directing that a copy of the said Lithuanian Arrest Warrant be produced to the Court prior to the hearing of the Application for the surrender of the Respondent to the Republic of Lithuania for the purposes of trial under a European Arrest Warrant received from that State.

8. Oral and written submissions were made on behalf of the parties. On behalf of the Minister it was submitted that the domestic warrant of the requesting State is not a necessary proof prior to an order under s.16 of the Act of 2003, that the effect of the order of the High Court is to graft on to the statute an additional proof in every case, which the Oireachtas had not deemed necessary. On behalf of the respondent submissions were made reiterating the argument before the High Court and submitting that the order of the High Court was correct.
9. The European Arrest Warrant contains several sections relevant to this preliminary issue. It commences as follows:

“This warrant has been issued by a competent judicial authority – the Prosecutor General’s Office of the Republic of Lithuania.

I, Deputy Prosecutor General Ms. Vaida Urmonaitë, request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution.”

Paragraph (b) states:
“Decision on which the warrant is based:

1. Arrest warrant or judicial decision having the same effect: Ruling of 8 February 2002 made by District Court of Keëdainiai Region.

Type: arrest warrant.

2. Enforceable judgement: to arrest

Reference: 66-1-01395-01.”

Paragraph (i) states:

“The judicial authority which issued the warrant:
Official name: The Prosecutor General’s Office of the Republic of Lithuania.
Name of its representative: Ms. Vaida Urmonaitë
Post held: (title/grade): Deputy Prosecutor General
File Reference: 14.3.-365”

There follow phone, fax and other contact details.

The warrant relates to one suspected offence, it is stated that the applicant on the 28th December, 2001, acting with a group of accomplices, using mental coercion or physical violence against two named juveniles, stole a mobile phone. The offence is described as a robbery, which may be punished by imprisonment for a term up to six years.
10. Law
Section 4A of the Act of 2003, as inserted by s. 69 of the Criminal Justice (Terrorist Offences) Act 2005, provides:

“4A - It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown.”

Article 8 of the Framework Decision provides that the arrest warrant shall contain information set out in the form contained in the annex. This includes paragraph 8(c) which requires evidence of an enforceable judgment, an arrest warrant, or any other enforceable judicial decision having same effect, coming within the scope of Article 1 and 2.
Section 11(1A) of the Act of 2003, as substituted for s. 1(1) by s.72 (a) of the Act of 2005, to give effect to that Article provides, at paragraph (e) thereof, in respect of Article 8 (c), that the European Arrest Warrant shall specify:

“that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant for his or her arrest or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of the offence.”

The court has a discretion to require additional documentation or information. This is provided for in s. 20(1) which states:

“In proceedings to which this Act applies the High Court may, if of the opinion that the documentation or information provided to it is not sufficient to enable it to perform its functions under this Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify, within such period as it may specify.”

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IESC/2006/S23.html

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Minister for Justice, Equality and Law Reform -v- Altaravicius [2006] IESC 23 (05 April 2006) URL: http://www.bailii.org/ie/cases/IESC/2006/S23.html Cite as: [2006] IESC 23, [2006] 3 IR 148, [2006] 2 ILRM 241