Minister for Justice and Equality v John Quilligan

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 26 July 2013
• Neutral Citation: [2013] IEHC 452
• Court: High Court
• Date: 26 July 2013

[2013] IEHC 452

THE HIGH COURT

[No. 28 EXT./2013]

Minister For Justice v Quilligan

No Redaction Needed

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between/

THE MINISTER FOR JUSTICE & EQUALITY

Applicant

-AND-

JOHN QUILLIGAN

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

COUNCIL FRAMEWORK DECISION 02/584/JHA PARA 2

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.3) ORDER SI 206/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.3) ORDER SI 206/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 S21(2)(A)

EUROPEAN ARREST WARRANT ACT 2003 S21

COUNCIL FRAMEWORK DECISION 02/584/JHA RECITAL 10

COUNCIL FRAMEWORK DECISION 02/584/JHA ART 1

MIN FOR JUSTICE v OLSSON 2011 1 IR 384

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

COUNCIL FRAMEWORK DECISION 02/584/JHA ART 1.1

MIN FOR JUSTICE v CONNOLLY UNREP EDWARDS 6.12.2012 2012 IEHC 575 [TRANSCRIPT NOT AVAILABLE]

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2013 IEHC 62

EUROPEAN ARREST WARRANT ACT 2003 S21(A)(1)

Extradition – European arrest warrant - Theft and burglary - Prosecution - Statutory compliance - Decision to charge and try - Presumption and rebuttal - European Arrest Warrant Act 2003 - European Convention on Human Rights

Facts: The respondent was the subject of a European arrest warrant that was issued by Austria on the 23rd July 2012 on the basis of four theft and burglary type offences he had allegedly committed there. He refused to surrender to Austrian authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003 (the 2003 Act’).

It was the respondent”s contention that he should not be surrendered to Austria pursuant to s. 21A of the 2003 Act because no decision had been made by authorities to charge and try him for the alleged offences. He averred that the matter was at the pre-trial investigation stage which meant that the Austrian prosecution authorities had not yet decided whether to prosecute him. However, the warrant purported to be a prosecution type warrant meaning the respondent was wanted in Austria so that he could be tried in respect of the four offences outlined therein. Consequentially, the Irish Central Authority wrote to the issuing state”s judicial authority seeking clarification of the issue. In reply, the Austrian authority admitted that the respondent”s case was at the pre-trial stage; however, it was also said that there was substantial evidence that indicated that he was guilty of the offences alleged, and that if he was extradited, it was their intention to question him, allow him to respond the accusations, and then charge him with the offences if his response was not satisfactory. It was pointed out that the Austrian Criminal Procedure Code required such a course of action.

The applicant claimed that pursuant to s. 21A(2) of the 2003 Act, it should be presumed, unless rebutted, that a decision had been made to charge and try the respondent at the relevant time i.e. the date on which the warrant was issued. In response, the respondent argued that the evidence before the Court clearly demonstrated that such a presumption should be rebutted because no decision to charge and try him could be made until he was questioned by police and allowed to comment on the accusations first, therefore, his surrender should be refused on that basis.

Held by Edwards J that the applicant was correct to state that pursuant to s. 21A of the 2003 Act, there was a presumption that a person, who was subject to a European Arrest Warrant and subsequently extradited on that basis, would be charged and tried by the issuing authority, and that such a presumption could only be overturned with rebuttal evidence.

In the present case, the court was not convinced that the evidence before the Court rebutted the presumption under s. 21A(2) of the 2003 Act. It was said that the case of Minister for Justice, Equality and Law Reform v. Olsson [2011] IESC 1 made it clear that this presumption could be rebutted if it was demonstrated that an European arrest warrant was issued in respect of a person at a time when the decision to prosecute was dependent on further investigations producing sufficient evidence to try that individual. However, the respondent had not been able to show this; indeed, the European arrest warrant and the response of the issuing state”s judicial authority to the Irish Central Authority”s letter outlined how there was substantial evidence already accumulated and implied that this was sufficient to charge and try the respondent. The fact that the Austrian Criminal Procedure Code meant that the respondent had to be given an opportunity to comment on the accusations before he could be charged was not considered sufficient to undermine the s. 21A(2) presumption because such a procedure did not seem to preclude the making of a decision to prosecute even though it could not be acted upon immediately. The objection under s. 21 of the 2003 Act was, therefore, rejected.

Order made pursuant to s. 16 of the European Arrest Warrant Act 2003 surrendering the respondent to the issuing state.

1 JUDGMENT of Mr Justice Edwards delivered on the 26th day of July, 2013.

Introduction

2 The respondent is the subject of a European arrest warrant issued by the Republic of Austria on the 23 ^rd July, 2012. The warrant was endorsed by the High Court for execution in this jurisdiction on the 22 ^nd, January, 2013, and it was duly executed on the 23 ^rd, January, 2013. The respondent was arrested by Garda Alan McGrath on that date, following which he was brought before the High Court later on the same day pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 The respondent does not consent to his surrender to the Republic of Austria. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied.

Uncontroversial s.16 Issues

4 The Court has received and has scrutinised a true copy of the European arrest warrant in this case.

5 The Court has also received an affidavit of Garda Alan McGrath sworn on 24 ^th June, 2013, testifying as to his arrest of the respondent and as to the questions he asked of the respondent to establish the respondent's identity, and the answers he received, which the Court notes correspond with information contained in Part A of the European arrest warrant. At paragraph 15 of the said affidavit Garda McGrath opines that the man he arrested on the 23 ^rd January, 2013 and brought before the High Court on the same day is the same person as the John Quilligan named in the European arrest warrant. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

6 Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.

7 I am satisfied following my consideration of these matters that:

8 (a) The European arrest warrant was endorsed for execution in this state in accordance with s. 13 of the Act of 2003;

9 (b) The warrant was duly executed;

10 (c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

11 (d) The warrant is in the correct form;

12 (e) The warrant purports to be a prosecution type warrant and the respondent is wanted in Austria for trial in respect of the four offences particularised in Part E of the warrant. These are four separate instances of an offence classified as an

"offence of partially completed, partially attempted professional aggravated theft through burglary as a party to §§ 12 second case, 15, 127, 128 section 1 cipher 3, section 2 2, 130, second clause of the (Austrian) Criminal Code."

13 (f) The underlying domestic decision on which the warrant is based is an arrest warrant issued by the Public Prosecutor's Department of Krems a.d. Donau (Staatsanwaltschaft Krems a.d. Donau) dated 23 ^rd, July, 2013.

14 (g) The issuing judicial authority has invoked paragraph 2 of article 2 of Council Framework Decision 02/584/J.H.A. of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereinafter referred to as "the Framework Decision") in respect of the four offences listed in Part E by the ticking of three boxes in Part E.I of the warrant, namely those relating to "participation in a criminal organisation", "organised theft or armed robbery" and "illicit trafficking in cultural goods, including antiques and works of art". All three ticked boxes are understood as applying to all four offences....