Minister for Justice and Equality v Herman

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 21 May 2015
• Neutral Citation: [2015] IESC 49
• Docket Number: Appeal No. 216/2014
• Court: Supreme Court
• Date: 21 May 2015

In the matter of the European Arrest Warrant Act, 2003

Between

The Minister for Justice and Equality

Applicant/Respondent

and

Arnost Herman

Respondent/Appellant

[2015] IESC 49

Denham C.J.

Murray J.

Hardiman J.

MacMenamin J.

Dunne J.

Appeal No. 216/2014

THE SUPREME COURT

Crime & sentencing – Extradition – European Arrest Warrant –Appeal against High Court decision or order surrender –S 10 European Arrest Warrant Act 2003

Facts: The appellant was the subject of three European Arrest Warrants from the Czech Republic. The High Court had ordered his surrender, and the appellant now sought to appeal in respect of two warrants having been granted leave to do so by the High Court. Leave was granted on a point of law in respect of the purposes for surrender under s 10 of the European Arrest Warrant Act 2003. The remaining warrant was subject to a stay in the interim period.

Held by Denham CJ, the other Justices concurring, that there was a tangible lack of clarity in the warrants appealed. Fundamental changes in the nature or purpose of a warrant such as the instant case required that a new warrant be issued, rather than merely providing corrections or supplementary information. On that basis the appeal would be allowed, but the stay on the warrant not appealed would be removed.

Judgment delivered on the 21st day of May, 2015 by Denham C.J.

Denham C.J.

1 This is an appeal by Arnost Herman, the respondent/appellant, referred to as ‘the appellant’, from the order of the High Court (Edwards J.), made on the 28th March, 2014, that the appellant be surrendered to the Czech Republic on foot of two European arrest warrants dated the 10th August, 2011 and the 15th November, 2012, and bearing Record No. 2011/302 EXT and 2013/45 EXT, respectively.

2 The High Court ordered the surrender of the appellant for prosecution in the Czech Republic on foot of another warrant, dated 9th October, 2012. There was no appeal in relation to that warrant. However, the appellant's surrender on foot of that warrant has been stayed, pending the determination of this appeal.

3 Thus, the appellant was sought on three warrants. The first warrant dated the 10th August, 2011, sought the surrender of the appellant on offences of racketeering and extortion, internationally injuring another person's health, and without authorisation obtained for himself and kept a firearm, and without authorisation obtained for himself and kept a weapon of mass destruction, and accumulated weapons and ammunition. On the face of the warrant it stated that he was convicted by the court in the Czech Republic, and that he was sought for the purposes of executing a custodial sentence. This warrant is referred to as ‘Warrant No. 1’, and is a subject of this appeal.

4 Another warrant, dated the 9th October, 2012, also sought his surrender to the Czech Republic. There has been no appeal in relation to this warrant, which is referred to as ‘Warrant No. 2’.

5 A third warrant, dated the 15th November, 2012, sought the appellant for arrest, it seeks that the appellant be arrested and surrendered for the purposes of enforcing custodial sentence. It is stated that: ‘This warrant relates to in total: 11 offences, more precisely 1 act consisting of 11 attacks.’ The offences are categorised as being racketeering and extortion. This warrant is referred to as ‘Warrant No. 3’.

6 An unusual feature of this Warrant No. 3 is that it is stated:-

‘Note: There has been issued a judgment under ref. 7T14/2009, which however has not become final and conclusive – appellate proceedings pending’.

7 Another unusual feature is that the first eight offences on Warrant No. 3 are the same offences as are the subject of Warrant No. 1.

8 On 30th April 2014, the High Court ordered that the surrender on Warrant No. 2 be stayed, that the appellant be remanded in custody pending the determination of his appeal (on Warrant No. 1 and Warrant No. 3) to the Supreme Court.

Certified Question

9 The High Court ordered that there was a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court. The certified point of law was:-

‘In circumstances where S. 10 of the 2003 Act as amended sets out, in disjunctive terms, the four purposes for which surrender can be ordered in respect of an offence, does the Court have jurisdiction to order surrender in respect of an offence in circumstances where more than one of the purposes referred to in S. 10 (a)–(d) applies to the said offence; or where it is not clear from the Warrant and associated information which of the said provisions actually apply.’

10 On behalf of the appellant it was submitted that the language of s. 10 of the European Arrest Warrant Act, 2003, as amended, referred to as ‘the Act of 2003’, limits the jurisdiction of the Court to surrender for the four purposes set out therein. It was submitted that the language of s. 10 of the Act of 2003 is disjunctive; that there must be one purpose for surrender for each offence contained in a warrant.

11 In relation to Warrant No. 3, this has been described above, as being for ‘the purposes of enforcing custodial sentence’. The fact that there was an appeal process was also noted.

12 However, a document entitled ‘European Arrest Warrant – Amendment’ is also before the Court. It refers to a change. It purported to issue an amendment to the European arrest warrant, as follows:-

‘I. I request the said person to be arrested and surrendered for the purposes of criminal prosecution or enforcing custodial sentence or detention order.

II. To the request to be amended Section d) of the issued European Arrest Warrant, I advise that in the meantime the procedural situation changed. By resolution of the High Court in Prague on 4th December, 2012 under file No. 10 To 48/2012 has been with respect to the accused Arnost Herman cancelled the Judgment of the Regional Court in Hradec Kralové of 24th June 2011 ref No. 7T 14/2009–2246, and the case has been returned to the extent [sic] of cancelling to the Regional Court in Hradec Kralové to consider it again in the needed extent [sic], and make a new resolution in this case.

The essential reason for this resolution was beside others the fact that part of the court trial was held in absentia of the accused Arnost Herman without all the statutory procedural conditions met.’

13 It was submitted that the Court could not order surrender under Warrant No. 3 as the appellant's surrender is sought for more than one purpose.

Notice of Appeal

14 The notice of appeal sets out the following grounds, namely that the learned High Court judge erred in law or in fact or on a mixed question of law and fact as follows:-

‘(i) The learned trial judge erred in ruling that there was sufficient information contained in Warrants 1 & 3 and in the additional information provided in respect thereof by the Requesting State to satisfy the Court of the lawfulness of surrendering the appellant on foot of the said warrants and to provide sufficient clarity in relation to the consequences of surrendering the appellant to the Requesting...