Minister for Justice and Equality v Fassih

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 27 July 2020
• Neutral Citation: [2020] IEHC 369
• Docket Number: [2019 No. 262 EXT]
• Court: High Court
• Date: 27 July 2020

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

NAOUFAL FASSIH

RESPONDENT

[2020] IEHC 369

Binchy J.

[2019 No. 262 EXT]

THE HIGH COURT

European arrest warrants – Surrender – Judicial authority – National Prosecutor’s Office of Amsterdam requesting the consent of the High Court to prosecute the respondent for offences set out in a European arrest warrant – Whether European arrest warrants were issued by a judicial authority

Facts: The High Court (Donnelly J), on 2nd February, 2017, ordered the surrender of the respondent, Mr Fassih, to the Netherlands pursuant to three European arrest warrants (the 2016 warrants). The first and second of these warrants were issued by the Amsterdam District Public Prosecutor's Office, and the third warrant was issued by the National Prosecutor's Office, North Randstad Unit, as the issuing judicial authorities. Following the order of the High Court for his surrender, the respondent was surrendered to the Netherlands on 22nd February, 2017. On 1st May, 2019, the National Prosecutor’s Office of Amsterdam sent a letter entitled “Request for consent” requesting the State to give its consent to the bringing of charges for additional acts (other than those described in the 2016 warrants), particulars of which were set out in a document described as “an additional European arrest warrant” concerning the respondent. On 30th July, 2019, the National Prosecutor’s Office of Amsterdam sent a further request for the consent of the High Court to prosecute the respondent for the offences set out in what was described as a “new additional EAW”. The two objections raised on behalf of the respondent in response to this application were as follows: (1) the Netherlands is not an “issuing state” within the meaning of ss. 2 and 22(7) of the European Arrest Warrant Act 2003 as amended, in that no European arrest warrant in respect of the respondent has been issued by a “judicial authority” of that country – none of the European arrest warrants on foot of which the respondent was surrendered in February 2017 was issued by a “judicial authority”; (2) the “additional European Arrest Warrant” dated 18th July, 2019, does not constitute a “request in writing from the issuing state” as required by s. 22(7) of the 2003 Act.

Held by Binchy J that the manner in which the request had been presented met the requirements of both s. 22(7) of the 2003 Act, and Article 27(4) of Council Framework Decision 2002/584/JHA of 13th June, 2002, on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26th February, 2009; the letter of the Public Prosecutor of 30th July, 2019, expressly requested the consent of the Court to prosecute the respondent for the offences set out in the “new additional EAW”, which was enclosed with the letter, and the investigating judge granted the request of the prosecutor to issue the new European arrest warrant in relation to the offences in respect of which consent was sought. In Binchy J’s view, the letter making the request, coupled with the additional European arrest warrant, comprised “a request in writing from the issuing state” as required by s. 22(7) of the 2003 Act. Binchy J agreed with the submission of counsel for the applicant that an objection to the application before the Court on the basis that the 2016 warrants were not issued by issuing judicial authorities within the meaning of the Framework Decision or the 2003 Act, was a collateral attack on the decision ordering surrender, and that it could not be sustained. Binchy J also accepted the submissions of the applicant that the retrospective effect of the decisions of the Court of Justice of the European Union (CJEU) does not override the application of domestic rules and procedures on the finality of decisions; while counsel for the respondent did submit that the effect of the applicant’s argument, if accepted, was that the decision of the CJEU in OG (C-508/18) would only be effective ex nunc, he did not take issue with the proposition that the retrospective application of judgments of the CJEU does not have the effect of disapplying domestic rules on the finality of decisions.

Binchy J held that he would make an order granting the application sought by the applicant.

Application granted.

JUDGMENT of Mr. Justice Binchy delivered on the 27th day of July, 2020

1 On 2nd February, 2017, this Court (Donnelly J.) ordered the surrender of the respondent to the Netherlands pursuant to three European arrest warrants (dated 21st April, 2016, 14th July, 2016, and 26th September, 2016, respectively, and hereafter together referred to as the “2016 warrants”). The first and second of these warrants were issued by the Amsterdam District Public Prosecutor's Office, and the third warrant was issued by the National Prosecutor's Office, North Randstad Unit, as the issuing judicial authorities. Following the order of the High Court for his surrender, the respondent was surrendered to the Netherlands on 22nd February, 2017. Thereafter, the respondent was convicted and sentenced to a total of 18 years' imprisonment in respect of the offences to which those warrants relate.

2 On 1st May, 2019, the National Prosecutor's Office of Amsterdam sent a letter entitled “Request for consent” requesting this State to give its consent to the bringing of charges for additional acts (other than those described in the three European arrest warrants referred to above), particulars of which were set out in a document described as “an additional European arrest warrant” concerning the respondent.

3 In the joined cases of OG (C-508/18) and PI (C-82/19 PPU) the Court of Justice of the European Union (“CJEU”), determined that the autonomous concept of “issuing judicial authority” within the meaning of Article 6(1) of Council Framework Decision 2002/584/JHA of 13th June, 2002, on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26th February, 2009 (hereinafter together referred to as the “Framework Decision”), must be interpreted as not including Public Prosecutors' Offices of a Member State which are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue a European arrest warrant. These decisions were handed down on 27th May, 2019.

4 On 23rd July, 2019, the request for consent to the bringing of additional charges against the respondent in the Netherlands was brought before this Court for determination. On that occasion, counsel for the applicant conceded that the person purporting to make the request (i.e the national prosecutor's office) was not a “judicial authority” within the meaning of the European Arrest Warrant Act 2003 (as amended) (the “Act of 2003”), in light of the decision of the CJEU in the joined cases of OG and PI.

5 On 30th July, 2019, the National Prosecutor's Office of Amsterdam sent a further request for the consent of this Court to prosecute the respondent for the offences set out in what is described as a “new additional EAW”. This request was sent under cover of a letter of 30th July, 2019, which states that:

“The new additional EAW was issued according to the new law adopted on 9th July by the Senate and entered into force on July 13th.

We refer to the enclosed additional EA W and request for the consent (under Article 27 of the Framework Decision on the European arrest warrant) of the Irish High Court to prosecute Naoufal Fassih for the offences set out in the EAW.”

6 Enclosed with the cover letter of 30th July, 2019, were the following documents:

1. Request for issuing an (additional) European arrest warrant (EAW). This document comprises a request from the Public Prosecutor to the investigating judge in Amsterdam to issue an additional EAW against the respondent in order to obtain the permission required by Article 7(4) of the Framework Decision to prosecute the respondent and bring him to trial in connection with the additional charges.

2. The decision of the investigating judge, dated 17th July, 2019, whereby he considered and granted the request of the prosecutor. In his decision on the matter (entitled “Disposition”) the investigating judge referred to a number of documents that had been submitted to him with the application of the prosecutor, including what he described as “a template of an additional EAW which has been filled out”.

3. The document described as an “additional European arrest warrant”, dated 18th July, 2019, in the opening paragraph of which the following is stated:

“In addition to the European arrest warrants which were sent before on 21st April, 2016, 14th July, 2016, and 26th September, 2016, I kindly request you to grant the surrender of the individual as referred to below with the purpose of criminal prosecution or execution of a custodial sentence or detention order for the commission of two additional indictable offences.”

7 The additional European arrest warrant was issued under the signature of the investigating judge. At para. (B) thereof, under the heading “Arrest warrant or judicial decision having the same effect” the following is stated:

“In this case, a request for detention is not in question. Suspect Fassih is already in detention for another criminal case. This EAW only serves to request additional permission that the suspect who has been surrendered be prosecuted, sentenced and, if necessary, to punish him for the indictable offences to be referred to hereafter.”

8 Points of objection to this request were filed on behalf of the respondent by a notice of objection dated 25th September, 2019. This notice raises two objections. However, before addressing the objections I should first...