Minister for Justice, Equality & Law Reform (respondent/applicant) v Adach (appellant/respondent)

JurisdictionIreland
JudgeMr. Justice Hardiman
Judgment Date13 May 2010
Neutral Citation[2010] IESC 33
CourtSupreme Court
Docket Number[S.C. No. 413 of 2009]
Date13 May 2010

[2010] IESC 33

THE SUPREME COURT

Hardiman J.

Geoghegan J.

Finnegan J.

413/2009
Min for Justice v Adach
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
Respondent/Applicant

and

RAFAL ADACH
Appellant/Respondent

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S12(F)

EUROPEAN ARREST WARRANT ACT 2003 S16(12)

EUROPEAN ARREST WARRANT ACT 2003 S16

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 (COMMENCEMENT) (NO 3) ORDER 2009 SI 330/2009

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 PART II

CONSTITUTION ART 25

CONSTITUTION ART 25.1

CONSTITUTION ART 25.4

CONSTITUTION ART 34.4.3

AG, PEOPLE v CONMEY 1975 IR 341

NOLAN & ANOR v RUSSIA 26 BHRC 341

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

PROCEEDINGS BROUGHT BY HEINRICH 2009 3 CMLR 7 2009 ECR I-1659

EEC REG 622/2003

EEC REG 68/2004

TREATY OF ROME ART 254(2)

CONSTITUTIONAL LAW

Statute

Promulgation of legislation - Process of promulgation of laws - Constitutional arrangements for promulgation - Publication of notice in Iris Oifiguil - Whether publication of Act necessary - Extradition - Appeal - Leave to appeal to Supreme Court - Whether appeal properly before Supreme Court - Whether certificate required from High Court - Gottfried Heinrich (Case C-345/06) [2009] ECR I-1659 and Nolan v Russia (2009) EHRR 262 distinguished - European Arrest Warrant Act 2003 (No 45), s 16(12) - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 28), s 12(f) - Constitution of Ireland, 1937, Article 25 - Respondent's appeal dismissed (413/2009 - SC - 13/5/2010) [2010] IESC 33

Minister for Justice, Equality and Law Reform v Adach

Facts: The delivery of the appellant was issued to Poland on foot of a European arrest warrant issued in 2008 and executed in Ireland. The Minister sought an order striking out the notice of appeal of the appellant. The Supreme Court directed that certain questions be tried as a preliminary issue as to whether the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009 were capable of application to the appeal where the Act was submitted not to have been published until after the surrender hearing in the High Court. Another issue was directed to be tried also as to whether the appeal was governed by the provisions of s. 12(f) of the Act. The Minister contended that the appeal was not properly before the Supreme Court as the appeal was filed without seeking certification from the High Court, as required pursuant to the provisions of s. 16(1) of the European arrest warrant Act 2003, as amended. The Act of 2009 was signed into law in July 2009. The appellant was arrested in March 2009 and the case came before the High Court in October 2009, at which point the appellant objected to the reliance being placed on the Act of 29009 on the basis that the Act was not published. The Act first became available on the website of the Oireachtas on November 2009 and not before.

Held by the Supreme Court per Hardiman J. (Geoghegan, Finnegan JJ. concurring), that the law in question regulated the right of access to the Supreme Court by way of appeal. The appellant could have made an application for leave to appeal and the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009 were capable of application to the appeal and did apply. The Court was bound to uphold the law and the appeal was governed by the law which included the amendment to s. 16(12) of the Act of 2003. Thus the appeal was not properly presented to the Court as no application was made to the High Court was for the certificate envisaged by the provision.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Hardimandelivered the 13th day of May, 2010.

2

Hardiman [nemdiss]

3

This is the appellant's appeal from the judgment and order of the High Court (Peart J.) of the 20 th October, 2009, perfected the 22 nd October, 2009. This ordered the appellant's delivery to Poland on foot of a European Arrest Warrant issued on the 1 st April, 2008 and subsequently executed in Ireland. The appellant brought his appeal by notice of appeal dated the 23 rd October, 2009. The Minister then brought a motion dated the 19 th November, 2009 seeking an order striking out the appellant's notice of appeal and subsequently, on the 18 th December, 2009, the Supreme Court directed that the following issues be tried as a preliminary issue:

4

2 "(1) Whether the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009 are capable of application to the within appeal in circumstances where the appellant submits that the said Act was not published until after the High Court's surrender hearing had concluded and after the appellant's notice of appeal was filed in the within proceedings.

5

(2) Whether this appeal being an appeal brought in respect of a European Arrest Warrant endorsed by the High Court for execution and executed before the High Court, prior to the enactment of the said Act, is governed by the provisions of s.12(f) of the said Act."

Procedural history.
6

The Minister contends that the present appeal is not properly before the Supreme Court because the appellant filed his appeal withoutseeking from the High Court the form of certification required by s.16(12) of the European Arrest Warrant Act 2003 as amended.

7

The background to the case is as follows:

8

(1) The appellant was arrested on the 11 th March, 2009 on foot of two European Arrest Warrants. He was brought before Mr. Justice Peart in the High Court. The learned judge fixed the 25 th March, 2009 as the relevant date for the purpose of making a direction on the appellant's surrender to Poland, pursuant to s.16 of the European Arrest Warrant Act, 2003. The appellant was then remanded from time to time before the High Court.

9

(2) On the 24 th June, 2009, Mr. Justice Peart set the 20 th October, 2009 as the hearing date in respect of both European Arrest Warrants. At that time the legislation governing the European Arrest Warrant procedure was the European Arrest Warrant Act 2003.

10

(3) The President of Ireland signed the Criminal Justice (Miscellaneous Provisions) Act, 2009 on the 21 st July, 2009. On the 24 th July, 2009 Iris Oifigiúil contained a notice stating that the 2009 Act "was signed by the President on the 21 st day of July, 2009 and has accordingly become law".

11

(4) On the 25 th August, 2004, Statutory Instrument No. 330 of 2009, the Criminal Justice (Miscellaneous Provisions) Act, 2009 (Commencement) (No. 3) Order 2009 brought into force the provisions contained in Part 2 of the 2009 Act relating to European Arrest Warrants.

12

On the 20 th October, 2009 the case came before the High Court and Counsel for the appellant objected to reliance being placed on the provisions of the 2009 Act during the High Court proceedings on the basis that the Act was not published. The learned trial judge noted this objection. At the end of the hearing the appellant's surrender to Poland was directed in relation to one only of the two European Arrest Warrants. According to the appellant, the learned trial Judge indicated that in the event of an appeal against his decision certification was not necessary.

13

(5) The appellant indicated that he wished to appeal from the High Court decision immediately after that decision was given. A notice of appeal was drafted and filed on the 23 rd October, 2009.

14

On the 29 th October, 2009, the matter was listed before the Supreme Court. Counsel on behalf of the Minister indicated that a motion would be brought to strike out the appeal on the basis that it was not validly before the Court.

15

(6) It was agreed between the parties that the Act first became available on the Oireachtas website on the 4 th November, 2009, and not before.

Statutory provisions.
16

In what follows, only the statutory provisions precisely relevant to the matter presently before the court are considered.

17

Section 16(12) of the European Arrest Warrant Act, 2003 provided as follows:

"An appeal against an order under this Section or a decision not to make such an order may be brought in the Supreme Court on a point of law only."

18

That provision is amended by s.12(f) of the Criminal Justice (Miscellaneous Provisions Act, 2009 which provides for the substitution for the words "on a point of law only" in s.16(12) of the 2003 Act of the words:

"If, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."

19

It will thus be seen that, under the 2003 Act, an appeal could be brought against an order such as that made in relation to Mr. Adach. Thisappeal could be brought to the Supreme Court but "on a point of law only". As a result of the amending provision, quoted above, an appeal may be brought only if the High Court certifies that its order involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

Constitutional provisions.
20

Article 25 of the Constitution appears under the heading "Signing and Promulgation" of laws. Article 25.1 provides that:

"As soon as any Bill, other than a bill expressed to be a Bill containing a proposal for the amendment of this Constitution, shall have been passed or deemed to have been passed by both Houses of the Oireachtas, the Taoiseach shall present it...

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