Algimantas Butenas v The Governor of Cloverhill Prison

JudgeMurray C.J.
Judgment Date12 March 2008
Neutral Citation[2008] IESC 9
CourtSupreme Court
Docket Number[S.C. No. 468 of 2006],468/06
Date12 March 2008


Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.



Criminal law - Constitutional law - European Arrest warrant - Lithuania -Challenge to detention on foot of warrant - Bail - No crime committed - Deprivation of liberty - Locus standi - European arrest warrant Act, 2003 s. 16(4)

Facts: The appellant challenged the validity of his detention on foot of an arrest warrant for surrender pending his surrender, pursuant to s. 16 of the European arrest warrant Act, 2003, on the basis that he had not been convicted of a crime, that he had been deprived of his liberty. The issue arose as to whether the effect of the legislation was to deprive the appellant of the opportunity to apply for bail.

Held by the Supreme Court per Murray C.J. that the order made pursuant to s. 16(4) was a consequential order. While the deprivation of liberty warranted a strict interpretation of the legislation, the effect of the order did not oust the jurisdiction of the Court to grant bail. It was part of the schema that such detention was inevitable. The appellant had not applied for bail.

Reporter: E.F.


JUDGMENT of the Court delivered on the 12th day of March 2008 by Murray C.J.


The appellant in these proceedings, having been arrested on foot of a European Arrest Warrant issued by the Prosecutor General of the Republic of Lithuania, a competent judicial authority, was brought before the High Court for the purposes of the execution of that warrant. Mr. Justice Peart made an order, on 24th November 2006 directing his surrender to the Republic of Lithuania pursuant to s. 16(1) of the European Arrrest Warrant Act 2003. In accordance with the provisions of s. 16(4) of the Act of 2003 the learned High Court Judge made a consequential order on that date committing the appellant to prison pending his surrender.


The appellant did not appeal against the High Court orders made pursuant to s. 16(1) and s. 16(4) of the Act.


The European Arrest Warrant Act 2003, as amended by the Criminal Justice (Terrorist Offences) Act 2005, is the means by which the State has given effect to the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States. Accordingly the Act falls to be interpreted in the light of the provisions of the Framework Decision.


Subsequent to the making of the High Court orders as aforesaid the appellant applied to the High Court for an order pursuant to Article 40.4.2 of the Constitution directing his release from custody of the respondent on the grounds that he was unlawfully detained in Cloverhill Prison.


In response the respondent justified the appellant's detention by producing to the High Court a committal warrant for the detention of the appellant issued by order of the High Court pursuant to s. 16(4) of the European Arrest Warrant Act 2003 and which required the appellant to be detained in prison until the date of his delivery by the State authorities to such person as was duly authorised on behalf of the Republic of Lithuania to receive his surrender to them for the purpose of being returned to Lithuania to stand trial for certain criminal offences.


The said order and warrant were issued by the High Court following a determination by that Court pursuant to s. 16 that the appellant should be surrendered to the authorities in Lithuania for the purpose of standing trial in relation to certain offences specified in a European Arrest Warrant dated December 2004 issued by a judicial authority in that country.


The High Court, having concluded that the respondent had, in law, valid grounds for the detention of the appellant, dismissed the appellant's application pursuant to Article 40. In doing so the High Court rejected the appellant's submission that s. 16(4) of the Act of 2003 was unconstitutional.


The Minister for Justice, Equality and Law Reform was made a notice


party to these proceedings and he was the applicant in the proceedings in which an order was sought and obtained for the surrender of the appellant to the Lithuanian authorities pursuant to s. 16 of the Act of 2003.


It is also relevant to note that the Minister as specified in s. 6(1) of the Act of 2003 is the Central Authority in the State for the purposes of the Act. It is to the Central Authority in the State, that a European Arrest Warrant must be transmitted by the issuing judicial authority (s. 12 of the Act).


In general terms it may be said that the Minister, being designated as the Central Authority in the State for the purposes of the Act, has administrative and executive responsibility for initiating the steps to be taken for the arrest of a person named in a European Arrest Warrant for the purpose of bringing that person before the Courts in order that the warrant may be executed by the High Court. He also has executive and administrative responsibility for giving effect to an order for surrender, that is to say the handing over of the person concerned to the authorities of the requesting State when a judicial order has been made for that purpose.


Because the proceedings brought by the appellant involved a challenge to the constitutionality of the provision of the statute a notice to that effect was served on the Attorney General pursuant to Order 60 of the Rules of the Superior Courts.


The Grounds upon which an Order pursuant to Article 40.4.2 is sought:


First of all it should be noted that the appellant does not seek to impugn, and has at no stage sought to impugn, the lawfulness of the determination and Order made by the High Court pursuant to s.16(1) of the European Arrest Act 2003, as amended, directing that he be surrendered to Lithuania. Neither was any appeal taken to this Court from that decision nor was any appeal taken from the order made pursuant to s. 16(4) which directed his imprisonment.


The appellant's claim in these proceedings turns on the consequential Order made by the High Court in the European Arrest Warrant proceedings which ordered his detention in Cloverhill Prison pending his surrender to the Lithuanian authorities. He says that the detention order is unlawful having been made in the exercise of a statutory power which is unconstitutional.


That order was made pursuant to s. 16(4), the terms of which are set out below but which provides that the High Court, when making an order for surrender pursuant to s. 16, shall also make an order committing the person to prison pending his or her surrender to the authorities of the requesting State.


The appellant's claim is that the terms of that provision were such that it precluded the release on bail pending surrender, in every case and in all circumstances, the person in respect of whom an Order of surrender was made.


Accordingly, s.16(4) is unconstitutional, it is claimed, because the obligation which it places on the High Court to order the detention of a person pending surrender is a denial of a right to liberty as guaranteed by the Constitution in failing to permit the Court, in the exercise of an inherent discretion, to release a person on bail and subject to such conditions as may be thought fit pending his or her actual surrender to the authorities of the State requesting the surrender. As a consequence, it


was submitted that that part of the Order which directed the detention of the appellant between the making of the Surrender Order and his actual surrender to the appropriate Lithuanian authorities was unlawful and his release should be ordered.


Submissions of the Appellant


The appellant submitted that his detention on foot of the warrant issued pursuant to s. 16(4) of the Act of 2003 is unlawful because:

  • (a) He has not been convicted of any crime or offence and the deprivation of his liberty amounts to a punishment contrary to law;

  • (b) He was deprived of his liberty solely and exclusively because the European Arrest Warrant Act 2003 was deemed to require his imprisonment.

  • (c) This was done simply to convenience his surrender and convenience can never be a basis for depriving a person of his or her liberty.

  • (d) There is no rational basis for the appellant's detention. Since the Order for his surrender did not, by virtue of s. 16 (3) of the Act of 2003, have force and effect until fifteen days after it was made there is no rational justification for the Court being obliged to order his imprisonment pending surrender.

  • (e) The effect of s. 16(4) was to deprive the High Court of the power to decide whether or not the appellant should be released conditionally on the basis of an individual assessment of the appellant's circumstances. This could have been achieved without interfering with the objectives of the Act and the framework decision on which it is based namely the ultimate surrender of the appellant to the State which issued the European Arrest Warrant (the issuing State). In removing an inherent jurisdiction of the Court to release the appellant on bail in this manner the Oireachtas exceeded its powers under the Constitution.

  • (f) Furthermore, it was submitted, the obligation imposed on the High Court pursuant to s. 16(4) to order the detention of a person pending actual surrender was disproportionate to the object to be achieved, namely, to ensure that the person was available for such surrender. There is nothing in the framework decision which would inhibit the High Court from exercising a power to grant bail this being a question for national law as indicated in Article 12 of the framework decision.


For the reasons summarised above it was...

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