Minister for Justice and Equality v Petronel Pal

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 28 February 2022
• Neutral Citation: [2022] IESC 12
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000073

In the Matter of the European Arrest Warrant Act 2003 (As Amended)

Between/

Minister for Justice and Equality

Respondent

and

Petronel Pal

Appellant

[2022] IESC 12

O'Donnell C.J.

Dunne J.

O'Malley J.

Baker J.

Hogan J.

S:AP:IE:2021:000073

AN CHÚIRT UACHTARACH

THE SUPREME COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 44 – Appellant contesting his surrender to Romania – Whether the appellant’s surrender was precluded

Facts: The appellant, Mr Pal, contested his surrender to Romania, which was sought on four charges: membership of a criminal group formed to commit murder; aggravated murder; attempt to commit aggravated murder; and aggravated robbery. A European Arrest Warrant (EAW) was issued on 4th December, 2018, endorsed by the High Court for execution on 8th April, 2019. The appellant was then arrested by Garda Kane on 3rd May, 2019. The case came before McDermott J in the High Court, who gave judgment on 9th March, 2020, permitting the surrender of the appellant on the charges of aggravated murder and membership of a criminal gang formed to commit murder but not the other two charges ([2020] IEHC 143). In a subsequent judgment, delivered on 20th April, 2020, McDermott J certified two questions to the Court of Appeal ([2020] IEHC 202) under s. 16(11) of the European Arrest Warrant Act 2003. The Court of Appeal considered the certified questions, and, in a judgment delivered on 2nd June, 2021 ([2021] IECA 165, Donnelly and Collins JJ; Ní Raifeartaigh J concurring with both), upheld the decision of the High Court. The appellant appealed to the Supreme Court. Much of the argument in this case concerned the interpretation of the various judgments in Minister for Justice & Equality v Bailey [2012] 4 I.R. 1 (Bailey No. 1) and their impact on the facts of this case. The appellant argued that the key factor in that case was that Mr Bailey was not an Irish citizen. This arose from the contention that this was the main issue for Hardiman J in refusing surrender, and as both Murray and Fennelly JJ agreed with Hardiman J, the appellant submitted that the shared basis jurisdiction requirement formed part of the majority decision in Bailey No. 1. As Mr Pal was similarly not Irish, the appellant submitted that his surrender was also precluded on that basis. The appellant contended that s. 44 of the 2003 Act involves an investigation of the basis on which Ireland exercises extra-territorial jurisdiction, in which investigation the only element which needs to be transposed is the location of the offence. The appellant criticised the Court of Appeal’s reliance on the judgment of the Supreme Court in Minister for Justice & Equality v Szall [2013] IESC 7, arguing that it led to a consideration of the basis on which Romania exercises extra-territorial jurisdiction and not the basis on which Ireland does. The appellant sought the reference of the following two questions to the CJEU. Firstly, where a State exercises its optional opt-out under Article 4.7(b) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States, is the executing judicial authority required to pose a hypothetical question in considering whether the State does not allow prosecution for the same offence committed outside the territory? Secondly, in considering “the same offences when committed outside its territory”, what facts must the executing State take into account?

Held by O’Donnell CJ that it was not reasonably possible to interpret Art. 4.7(b) in any way which could lead to a refusal to surrender the appellant in this case and, therefore, to require any reference to the CJEU. O’Donnell CJ held that the interpretation contended for by the appellant would prevent surrender in cases of shared basis jurisdiction hitherto understood as the narrowest, most conservative and most well-established basis of surrender between friendly states. O’Donnell CJ held that this reinforced the point that it would be surprising if such a dramatic change, or even arguable interpretation, would have gone unnoticed. O’Donnell CJ held that s. 44 of the 2003 Act could not be read to preclude surrender in this case.

O’Donnell CJ dismissed the appeal.

Appeal dismissed.

Judgment of Mr. Justice O'Donnell, Chief Justice, delivered on the 28 ^th day of February, 2022.

Background

1 . The facts leading to this appeal are set out in comprehensive detail in the judgments of both the High Court (McDermott J.) and the Court of Appeal (Donnelly and Collins JJ.; Ní Raifeartaigh J. concurring), so only a brief outline is necessary here.

2 . On April 10 ^th, 2014, a group of armed men attacked Virgil Busa at his apartment at 7 Academy Square, Navan, Co. Meath. Though Mr. Busa managed to escape the building, he was attacked by the remainder of the group outside and sustained extensive injuries, ultimately dying three days later.

3 . It is alleged by Romania that the attackers consisted of a number of Romanian citizens, including the appellant in this case, Petronel Pal. While the other members of the group have been surrendered to Romania, Mr. Pal contested his surrender, which was sought on four charges: membership of a criminal group formed to commit murder; aggravated murder; attempt to commit aggravated murder; and aggravated robbery. The requested surrender on the charge of aggravated murder is the only charge still in dispute in this appeal, for reasons which will be discussed below.

4 . A European Arrest Warrant (“EAW”) was issued on December 4 ^th, 2018, which warrant was endorsed by the High Court for execution on April 8 ^th, 2019. The appellant was then arrested by Garda Eoin Kane on May 3 ^rd, 2019.

High Court

5 . The case came before McDermott J. in the High Court, who gave judgment on March 9 ^th, 2020, permitting the surrender of the appellant on the charges of aggravated murder and membership of a criminal gang formed to commit murder – which equated to the Irish offence of conspiracy to murder – but not the other two charges ( [2020] IEHC 143).

6 . Opposing his surrender, the appellant relied on s. 44 of the European Arrest Warrant Act 2003 (“the 2003 Act”), which is based on Article 4.7(b) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (“the Framework Decision”), and governs the optional non-execution of EAWs. As the appeal centres on the interpretation of s. 44, it is convenient to set the section out in full here:-

“A person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect of him or her 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.”

7 . As discussed by Fennelly J. in Minister for Justice & Equality v. Bailey [2012] 4 I.R. 1 (“ Bailey No. 1”), the principle of conforming interpretation requires that s. 44 must be interpreted in a manner which conforms with the Framework Decision, provided this interpretation is not contra legem.

“425. Accordingly, I am satisfied that section 44 must be interpreted in conformity with Article 4.7(b) and not merely with the general objectives of the Framework Decision.

426. Once it is established, as I believe it is, that the principle of conforming interpretation applies, it follows that the first thing to do is to seek out the correct meaning of Article 4.7(b).”

Once the interpretation of Article 4.7(b) was established it then fell to the Court to consider if s. 44 could be interpreted in conformity with Article 4.7(b).

8 . For its part, Article 4.7(b) of the Framework Decision provides that States may refuse to execute an EAW where it relates to offences which:-

“have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory”.

9 . Section 44 and Article 4.7(b) were the subject of detailed consideration by this Court in Bailey No. 1. While all judges agreed that s. 44 involves a hypothetical exercise requiring the Court to consider what the position would be in certain circumstances, three different approaches emerged as to what this entailed. Denham C.J. and Fennelly J. (with whom Murray J. agreed), delivered separate judgments holding that what was required was “factual reciprocity”, in which the issuing state (also referred to as the requesting state – in this case, Romania) and executing state (Ireland) are reversed, was necessary. Hardiman J.'s “shared basis jurisdiction” approach required that both the issuing state and Ireland must exercise jurisdiction for the offence on the same basis. Finally, in my judgment, which was in the minority on this issue, I held that the section required “category reciprocity”: if Ireland exercised extra-territorial jurisdiction over the type of offence sought to be prosecuted, the accused's surrender was not prohibited by s. 44. In the High Court in this case, McDermott J. concluded that Denham C.J.'s approach was the majority decision in Bailey No. 1, and thus followed the factual reciprocity approach.

10 . Firstly, on the charge of aggravated murder, McDermott J. relied on s. 9 of the Offences Against the Person Act 1861 (“the 1861 Act”), which permits the prosecution of Irish citizens in Ireland for murder committed outside the jurisdiction. Reversing the countries involved, the Court held that the alleged offence could be prosecuted in Ireland if committed outside the jurisdiction by an Irish citizen. Therefore, McDermott J. concluded, there was sufficient reciprocity to justify the...