Minister for Justice and Equality v Mangan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 13 March 2017 |
| Neutral Citation | [2017] IEHC 233 |
| Court | High Court |
| Docket Number | Record No. 2016 18 EXT |
| Date | 13 March 2017 |
[2017] IEHC 233
THE HIGH COURT
Donnelly J.
Record No. 2016 18 EXT
Extradition – The European Arrest Warrant Act, 2003 – Execution of EAW – Council Framework Decision – (2002/584/JHA) – Legality of warrant
Facts: The requesting state sought the surrender of the respondent for prosecution in relation to an offence of illicit trafficking of narcotic drugs. The respondent objected to his surrender on the grounds that the European Arrest Warrant (EAW) was bad for want of necessary details. The respondent claimed that the requesting state had breached his right to privacy by tapping his telephonic conversations in Ireland without any lawful basis and that his prosecution was a direct effect of the tapped telephonic conversations.
Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that there was a failure to translate the customary statement; however, it had been provided by the requesting state upon request. The Court found that the central authority in Ireland was provided with every detail concerning the maximum prescribed penalty for the alleged offence, the correct spelling of the respondent's name and other details of the commission of the offence. The Court held that the lack of translation of the statement was a mere technical irregularity and it would not be sufficient to prohibit the surrender of the respondent. The Court held that the onus rested upon the respondent to rebut the presumption that the authorities in the requesting state had not acted in accordance with law while tapping the telephonic conversation between the respondent and another drug trafficker. The Court held that the respondent had failed to discharge that onus.
The surrender of the respondent is sought by Spain for the purpose of prosecution of a single offence alleging his participation in illicit trafficking of narcotic drugs and psychotropic substances occurring on 29th November, 2010. The European arrest warrant ('EAW') issued on 5th April, 2013 and was endorsed by this Court on 1st February, 2016 pursuant to the provisions of s. 13 of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003').
The respondent objects to his surrender on a number of grounds. These grounds include:-
a) that the warrant is bad for want of necessary detail;
b) that because of a previous decision of this Court not to exercise functions in respect of this EAW, the respondent has been prejudiced; and,
c) a complaint that his right to privacy under the Constitution and under the European Convention on Human Rights ('ECHR') will be violated if he is surrendered to Spain due in particular to telephone tapping.
There is an interesting background to this EAW application arising in circumstances where this respondent was previously sought for surrender by the United Kingdom ('U.K.') in respect of a European arrest warrant. That U.K. EAW was issued on 4th November, 2011 and concerned different offences allegedly committed on 19th June, 2007 and 18th September, 2007. The case came before the High Court on 10th December, 2015 and the Court made an order for the respondent's surrender to the United Kingdom. However, prior to his physical surrender, the U.K. authorities indicated that they no longer required him for surrender and he was released from custody.
Shortly before the decision to surrender the respondent to the U.K. was made, this EAW was received from Spain and brought to the attention of the High Court. Although notice was not necessarily required, the respondent was notified and was represented at the application for endorsement of the European arrest warrant. Pursuant to the provisions of s. 29 of the Act of 2003, the Court decided to perform its functions under s. 16 of the Act as regards the U.K. EAW and did not perform functions under s. 13 of the Act with regard to endorsement of this Spanish European arrest warrant. Section 29 of the Act of 2003 provides for the situation where two or more EAWs are received in the State. When such a situation occurs, it is for the High Court to decide in relation to which of those EAWs it shall perform functions under the Act of 2003.
Shortly after this respondent's release from custody in respect of the U.K. EAW, the central authority wrote to the issuing judicial authority in Spain stating that the U.K. EAW had been withdrawn and seeking clarification as to whether the Spanish authorities still sought the respondent for surrender. The central authority also sought further information from the Spanish authorities with respect to certain details in the European arrest warrant. These included issues such as the maximum length of the sentence and whether the issuing judicial authority was relying on a designation that this was an offence to which Article 2, para. 2 of the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedure between Member States ('the 2002 Framework Decision') applies. The Spanish issuing judicial authority confirmed that execution of the EAW was required.
I am satisfied that by the European Arrest Warrant Act 2003 (Designated Members States) Order ( S.I. 4 of 2004), the Minister for Foreign Affairs has designated Spain as a member state for the purposes of the Act of 2003.
I am satisfied on the basis of the affidavit of James Kirwan, member of An Garda Síochána, the affidavit of the respondent and the details set out in the EAW, that the respondent, Patrick Joseph Mangan, who appears before me, is the person in respect of whom the EAW has issued.
I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.
Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under the above provisions of the Act of 2003, as amended.
Subject to further considerations of s. 37, s. 38, s. 42, s. 44 and s. 45 of the Act of 2003, as amended, and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the Act of 2003.
The respondent put forward a number of points of objection in his written objections. At the hearing of the application, counsel for the respondent initially suggested that there were seven grounds of objection to surrender. Some of these points of objection were expanded upon during the course of the hearing but, as the hearing progressed, were later abandoned. Nonetheless, the Court will deal with all points where submissions were advanced.
Section 42 of the Act of 2003 states that:
'[a] person shall not be surrendered under the Act if (a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence, or (b) proceedings are pending in the State against the person for an offence consisting of an act or omission of which the offence specified in the European arrest warrant issued in respect of him or her consists in whole or in part.'
In this case, the respondent did not offer any evidence that the DPP is considering, but has not yet decided, whether to bring proceedings against the respondent. Indeed, the respondent did not raise any evidence to suggest that there was a risk that this might be so. In circumstances where there is no evidence of any factors from which it could be implied that the DPP or the Attorney General are considering whether to bring proceedings against this respondent for an offence, the Court is satisfied that his surrender is not prohibited by s. 42 of the Act of 2003.
This section provides that a person shall not be surrendered if the offence specified in the EAW was committed or is alleged to have been committed in a place other than the issuing state and the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State. The respondent raised this objection on the basis that the offence was alleged to have been committed in the city of Melilla which the respondent asserted was a Spanish controlled city in Morocco. During the course of the hearing, this point was abandoned. The Court has no doubt that the allegations as set out in the EAW together with the additional information, clearly established that this offence is alleged to have been committed in Spain. Thus, the first condition of s. 44 of the Act of 2003 has not been met. Therefore, the surrender of this respondent is not prohibited on the grounds of s. 44 of the Act of 2003.
Section 45 of the Act of 2003 states that a person shall not be surrendered under the Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the EAW is issued, unless the EAW indicates the matters required by the new point (d) of the form of EAW set out in the Annex to the 2002 Framework Decision as amended by the Council (EC) Framework Decision of 26th February, 2009 (2009/299/JHA) on the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial ('the 2009 Framework...
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