Iqbal and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 06 May 2008
• Neutral Citation: [2008] IESC 29
• Date: 06 May 2008
• Court: Supreme Court
• Docket Number: [S.C. Nos. 237, 238 & 277 of 2007]

Iqbal & Ors v AG & Min for Justice

BETWEEN:

MOHAMMED IQBAL

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

BETWEEN:

MAROS SULEJ.

PLAINTIFF/APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

DEFENDANTS/RESPONDENTS

BETWEEN:

TOMÁS PUTA

PLAINTIFF/APPELLANT

AND

THE ATTORNEY GENERAL

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

[2008] IESC 29

Record No: 277/2007

Record No: 238/07

Record No: 237/07

THE SUPREME COURT

CONSTITUTIONAL LAW

Separation of powers

Framework decision - Implementation - Extradition - European arrest warrant - Whether prior approval of Oireachtas granted - Standard for judicial intervention in other organs of state - TD v Minister for Education [2002] 4 IR 259 and Curtin v Dáil Éireann [2006] IESC 14 [2006] 2 IR 556 followed - Council Framework Decision on the European Arrest Warrant and Surrender Procedures 2002/584/JHA - European Arrest Warrant Act 2003 (No 45) - Constitution of Ireland 1937, Article 29.4.6 - Plaintiffs' appeal dismissed (227/2006, 237 & 238/2007 - SC - 6/5/2008) [2008] IESC 29

Iqbal v Minister for Justice

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

CONSTITUTION ART 29.4.6

CONSTITUTION ART 29.4.5

TREATY OF AMSTERDAM 1997 ART 1.11

TREATY ON EUROPEAN UNION 1992 ART 34

TREATY ON EUROPEAN UNION 1992 ART 34(2)(b)

EUROPEAN ARREST WARRANT ACT 2003 S10

CONSTITUTION ART 29.4.10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2

CONSTITUTION ART 29.5.1

CURTIN v DAIL EIREANN & ORS 2006 2 IR 556

CONSTITUTION ART 35.4.1

D (T) & ORS v MIN EDUCATION & ORS 2001 4 IR 259

CONSTITUTION ART 29

CONSTITUTION ART 29.4.1

CONSTITUTION ART 15

CONSTITUTION ART 30

CONSTITUTION ART 31

CONSTITUTION ART 34.1

GIBRALTER v COUNCIL OF THE EUROPEAN COMMUNITIES 1993 ECR I-03605

PIGS MARKETING BOARD v DONNELLY 1939 IR 413

BUCKLEY & ORS v AG 1950 IR 67

MCDONALD v BORD NA GCON 1965 IR 217

EAST DONEGAL CO-OPERATVE LIVESTOCK MART LTD v AG 1970 IR 317

GOODMAN INTERNATIONAL LTD v HAMILTON 1992 2 IR 542

1 6thday May, 2008 by Murray C.J.

Murray C.J.

2 Each of the appellants is the subject of a European Arrest Warrant: issued, in the case of the first appellant, by a judicial authority in the United Kingdom; in the cases of the second and third appellants a warrant, in each case, issued by a judicial authority in the Czech Republic. The High Court has made an order, pursuant to s. 16(1) of the European Arrest Warrant Act, 2003 ( "the Act of 2003"), in each case, ordering the surrender of the appellant to a person duly authorised by the issuing state to receive him.

3 Each of the appellants commenced plenary proceedings in the High Court claiming a:

"Declaration that Council Framework Decision of 13 ^thJune 2002 was not properly ratified by the Oireachtas as required by the Constitution and/or that the European Arrest Warrant Act, 2003, as amended, which purports to reflect the Framework Decision is invalid and of no effect......"

4 The appellants claim that the Act of 2003 is repugnant to the Constitution. They contend that the Act was enacted without "the prior approval of both Houses of the Oireachtas," as required by Article 29.4.6 of the Constitution. The High Court (Peart J) dismissed the claim in each case. The appellants now appeal.

5 The appellants are directly affected by orders made pursuant to the Act of 2003. They have the required standing to allege that the Act is invalid, by reason of having been enacted contrary to the provisions of the Constitution.

6 The people, by the Eighteenth Amendment to the Constitution, authorised the State to ratify the Treaty of Amsterdam of 1997. Article 29.4.5 of the Constitution, as so amended, provides:

"The State may ratify the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts signed at Amsterdam on the 2 ^ndday of October, 1997."

7 Article 29.4.6 provides:

"The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5° of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Óireachtas."

8 For the purposes of the present appeal, only the "options or discretions" provided by Article 1.11 of the Amsterdam Treaty are relevant. Article 1.11 of that Treaty amended Title VI of the existing Treaty on European Union (the Maastricht Treaty) by replacing that Title in its entirety. Title VI of the Treaty on European Union ( "TEU") is headed: "Provisions on Police and Judicial Cooperation in Criminal Matters." That Title, as set out in the Treaty of Amsterdam, is divided into Articles enumerated K.1 to K.14. Article K.6 of Title 6 has become Article 34 of the Treaty on European Union includes the power, inter alia, for the Council of the European Union to adopt framework decisions.

9 Article 34 TEU reads as follows:

10 1. In the areas referred to in this title, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations.

11 2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:

12 (a) adopt common positions defining the approach of the Union to a particular matter;

13 (b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect,

14 (c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;

15 (d) establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council........

16 In exercise of the power conferred by in Article 34(2)(b), the Council adopted Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).

17 The Oireachtas enacted the Act of 2003 for the purpose, as its long title proclaims, of giving effect to the Framework Decision. Section 10 of the Act gives general effect to its provisions. It provides:

"Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-"

(a) against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates, or

(b) on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she-

(i) commenced serving that sentence, or

(ii) completed serving that sentence, 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."

18 The Act of 2003, since it gave legal effect in the state to the provisions of the Framework Decision, necessarily had to have been enacted after the adoption of that measure. Article 29.4.6 of the Constitution required the prior approvalof the Houses of the Oireachtas to the exercise by the State of any of the "options or discretions" provided for by Article 1.11 of the Amsterdam Treaty. Article 34 of the Treaty on European Union required a unanimous vote of the Council for the adoption of the Framework Decision. The government, exercising the executive power of the State within the Council, could not have participated in the adoption of the Framework Decision without the prior approval of both Houses of the Oireachtas.

19 On 11 ^thDecember 2001, some seven months before the adoption of the Framework Decision, a proposal for the exercise of an option or discretion pursuant to Article 1.11 of the Amsterdam Treaty in the form of a draft Framework Decision was placed before the Houses. On 12 ^thDecember 2001 the Minister for Justice, Equality and Law Reform proposed a resolution in Dáil Eireann in the following terms:

"That Dáil Eireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure: a proposal for a Council framework decision on the European arrest warrant and the surrender procedures between member states, a copy of which was laid before Dáil Eireann on 11 ^thDecember."

20 The front page of the document referred to in the resolution, a copy of which was laid before the Dáil, bore a date: Brussels, 10 December 2001. It was numbered COPEN 79 CATS 50. It was headed: "OUTCOME OF PROCEEDINGS, from: COUNCIL, on: 6/7 December 2001." The subject was described as: "Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between Member States." That page, together with its corrected version (called...