Min for Justice v Strzelecki

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 26 February 2015
• Neutral Citation: [2015] IESC 15
• Court: Supreme Court
• Date: 26 February 2015

[2015] IESC 15

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

Dunne J.

Appeal No. 470/13

Min for Justice v Strzelecki

Between/

The Minister for Justice and Law Reform

Applicant/Respondent

and

Sylwester Jozef Strzelecki

Respondent/Appellant

Extradition – European arrest warrant – Prosecution – Appellant seeking to appeal from the decision of the High Court – Whether human or fundamental rights issues may be raised when a person has been surrendered previously under a European arrest warrant and the requesting state subsequently seeks consent to prosecute the surrendered person for additional offences

Facts: The Republic of Poland issued a European arrest warrant for the appellant, Mr Strzelecki, in May, 2010, seeking his surrender for prosecution for seven drug trafficking offences. In July, 2012, after a hearing, the High Court made an order pursuant to s. 16 of the European Arrest Warrant Act 2003, surrendering the appellant to Poland. The appellant was transferred to Poland and was remanded in custody. The High Court received a request in December, 2012 from Poland seeking consent for the prosecution of the appellant in respect of two further drug trafficking type offences that were not on the original European arrest warrant. A preliminary issue was raised in the High Court as to the correct interpretation of s. 22(8) of the Act of 2003. The appellant had wished to argue that there was a real risk of his fundamental rights being violated if consent was given by the High Court. As a preliminary issue the High Court found that the appellant rely on a submitted breach of fundamental rights as a bar to consent to further prosecution pursuant to s. 22(7) of the Act of 2003. The High Court judge then dealt with the request for consent, without considering issues of fundamental rights, held that he applied a literal meaning to s. 22(8) of the Act of 2003, and made an order granting consent to further prosecution of the appellant in Poland. The appellant filed a notice of appeal claiming that the trial judge erred in law and/or principle in: (1) finding that s. 37 of the Act of 2003 was of no application when considering a request for further prosecution pursuant to s. 22(7); (2) finding that a person in the circumstances of the appellant could not raise human rights considerations as a bar to consent to further prosecution pursuant to s. 22(7); (3) giving consent to further prosecution pursuant to s. 22(7) in respect of two offences outlined in the request for further prosecution. The Supreme Court was asked, as a preliminary issue, whether objections under s. 37 on human or fundamental rights issues, may be raised in the circumstances. The applicant, the Minister for Justice and Law Reform, submitted that: (1) s. 22(7) and (8) must be interpreted insofar as possible in the manner that conforms with the provisions of the Council Framework Decision of 13 June, 2002, on the European arrest warrant and the surrender procedures between member states; (2) the appellant has confused the wording of s. 3 of the UK Human Rights Act, 1998, with the different wording and scope of s. 2 of the European Convention on Human Rights Act 2003; (3) none of the Articles of the Convention are engaged by a decision to grant consent under s. 22(7) and (8).

Held by Denham CJ that the Court was not satisfied that the provisions of the Act of 2003 in relation to fundamental rights, and in light of the Framework Decision, do not apply in the High Court on a request from a requesting state for consent to prosecute a person, who has already been surrendered, for further offences. Denham CJ was satisfied that the High Court judge fell into error in excluding the appellant from raising s. 37 or human rights before the court. Denham CJ was satisfied that this conforms with the Framework Decision and was satisfied that Irish law does not exclude issues of fundamental rights at any stage of a process under the Act of 2003, citing Minister for Justice, Equality and Law Reform v Altaravicius [2006] 3 IR 148. Denham CJ held that it is open to a person before the Courts under the Act of 2003 to invoke s. 37, or to make objections on the basis of fundamental rights, relying on the European Convention on Human Rights Act, 2003, or the Constitution. Denham CJ was satisfied that the trial judge erred in principle in finding as a preliminary issue that s. 37 was of no application when considering a request for further prosecution pursuant to s. 22(7).

Denham CJ held that the Court would allow the appeal on this preliminary issue and remit the matter to the High Court for consideration in accordance with law.

Appeal allowed.

1 Judgment delivered on the 26th day of February, 2015 by Denham C.J.

2 Judgment delivered by Denham, C.J.

3 1. In this appeal the Court is asked, as a preliminary issue, whether objections under s. 37 of the European Arrest Warrant Act, 2003, as amended, hereinafter referred to as "the Act of 2003, as amended", on human or fundamental rights issues, may be raised when a person has been surrendered previously under a European arrest warrant and the requesting state subsequently seeks consent to prosecute the surrendered person for offences additional to those the subject of the European arrest warrant on which he was surrendered.

4 2. This is an appeal by Sylwester Jozef Strzelecki, the respondent/appellant, referred to as "the appellant", from the decision of the High Court (Edwards J.) delivered on the 31 ^st October, 2013, when the High Court refused to consider objections raised by the appellant pursuant to Part III, and specifically s. 37 of the Act of 2003, as amended, prior to making an order, pursuant to s. 22(7) of the Act of 2003, as amended, consenting to the further prosecution of the appellant in respect of two offences outlined in the request for further prosecution issued by the Republic of Poland, dated the 27 ^th December, 2012.

The High Court

5 3. The Republic of Poland hereinafter referred to as "Poland", issued a European arrest warrant for the appellant on the 25 ^th May, 2010, seeking his surrender for prosecution for seven drug trafficking offences. On the 2 ^nd July, 2012, after a hearing, the High Court made an order pursuant to s. 16 of the Act of 2003, as amended, surrendering the appellant to Poland. A short time after the order the appellant was transferred to Poland. The High Court was informed that the appellant was remanded in custody awaiting trial in Poland.

6 4. The High Court received a request, dated the 27 ^th December, 2012, from Poland seeking consent for the prosecution of the appellant in respect of two further drug trafficking type offences that were not on the original European arrest warrant.

Preliminary issue

7 5. A preliminary issue was raised in the High Court as to the correct interpretation of s. 22(8) of the Act of 2003, as amended. This is the sole issue before the Court.

8 6. In the High Court the Minister for Justice and Law Reform, referred to as "the Minister", submitted, inter alia, that a correct interpretation of s. 22(8) of the Act of 2003, as amended, does not invoke s. 37 of the Act of 2003, as amended, or human or fundamental rights based objections, relying on the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, or the Constitution of Ireland. The Minister contended that on a correct interpretation of s. 22(8) of the Act of 2003, as amended, such issues are not justiciable by the Court in considering whether or not to grant its consent to the prosecution of the appellant in the issuing state for further offences to those which had been the subject of the surrender order.

9 7. Counsel for the appellant objected to the granting of the consent, inter alia based on the provisions of Part 3 of the Act of 2003, as amended, i.e. s. 37, including human or fundamental rights issues, relying on the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, and the Constitution of Ireland. Also, the appellant invoked Article 13 of the European Convention on Human Rights, submitting that the appellant has a right thereunder to seek an effective remedy at the first available opportunity, i.e. before the High Court in Ireland at the s. 22 hearing.

High Court judgment

10 8. Having stated the submissions of the parties, the learned High Court judge held:-

"The Court in fact finds itself in agreement with counsel for the [Minister] who submitted that her interpretation of s. 22(8) is entirely consistent with the terms of Article 27(4) of the Framework Decision, Article 27(4) refers specifically to Article 3 and 4, respectively, of the Framework Decision which are, as counsel for the [Minister] has correctly stated, concerned with mandatory grounds for non execution and optional grounds for non execution. Neither of those provisions is concerned with fundamental rights."

11 It is certainly true that recital 12 to the Framework Decision emphasises that it respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. However, confining the grounds for possibly refusing a request for further prosecution to an objection to the mandatory grounds for non execution and the optional grounds for non execution contemplated in Articles 3 and 4 of the Framework Decision is not to disrespect fundamental rights or to fail to observe the principles recognised by Article 6 TEU. It is entirely reasonable that the Framework Decision should contemplate that fundamental rights guaranteed under the ECHR and, indeed, under the Charter of Fundamental Rights of the European Union,...