Minister for Justice, Equality and Law Reform v Ferenca

JurisdictionIreland
JudgeMr. Justice Geoghegan,Murray C.J.
Judgment Date31 July 2008
Neutral Citation[2008] IESC 52
CourtSupreme Court
Docket Number[S.C. No. 157 of
Date31 July 2008
Min for Justice v Ferenca
Subject to Approval

Between

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Applicant / RESPONDENT
-v-
SAULIUS FERENCA
RESPONDENT/Appellant

[2008] IESC 52

Murray C.J.

Geoghegan J.

Macken J.

157/07

THE SUPREME COURT

EXTRADITION

European arrest warrant

Correspondence - Specified conduct - Whether offence consists of conduct specified in art. 2.2 of Framework Decision - Meaning of provision - Whether executing state can determine whether offence falls within provision - Cumulative sentence - Minimum gravity requirement - Whether court can determine whether minimum gravity requirement met in respect of individual offences where cumulative sentence imposed - Whether correspondence required for offences listed in art. 2.2 of Framework Decision - Advocaten voor de Wereld VZW v Leden van de Ministerraad (Case C-303/05) [2007] ECR I-3633 applied - European Arrest Warrant Act 2003 (No 45), s 38(1) - Council Framework Decision on the European Arrest Warrant and the Surrender Procedures Between Member States (2002/584/JHA), article 2.2 - Respondent's appeal allowed (157/2007 - SC - 31/7/2008) [2008] IESC 52

Minister for Justice, Equality and Law Reform v Ferenca

Statutory interpretation - Words and phrases - "or is an offence that consists of conduct specified in..." - Purposive approach - Meaning to be attributed to statutory provision - Whether statutory provision capable of being given effect to - European Arrest Warrant Act 2003 (No 45), s 38(1)(b).

Facts: section 38(1)(b) of the European Arrest Warrant Act 2003 provides, inter alia, that surrender be made to a requesting state if "the offence [set out in the European arrest warrant] is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence that consists of conduct specified in that paragraph...". Article 2.2 of the Framework Decision, which the Act of 2003 implements, provides a list of 32 offences, including "fraud", for which double criminality need not be established and those offences are listed in the form of warrant specified by the Annex to the Framework Decision, with a box alongside each to be ticked by the issuing state prior to issuing the warrant. Lithuania issued a European arrest warrant for the surrender of the respondent to that state so that he could serve a sentence of imprisonment in relation to three particular offences described in the warrant by reference to a set of recited facts. However, it failed to tick any of the boxes which corresponded to any of the listed offences in Article 2.2 of the Framework Decision. The High Court made an order for the surrender of the respondent to the requesting state on the basis that correspondence had been met in respect of two of the offences and that, though correspondence had not been met in respect of the first offence, it fell within the "broad concept of fraud" and therefore came within a second alternative set out in section 38(1)(b) of the Act of 2003, notwithstanding that the issuing state had not relied on the provisions of Article 2.2 of the Framework Decision by ticking the appropriate box in the warrant. The respondent appealed to the Supreme Court.

Held by the Supreme Court (Murray CJ, Geoghegan and Macken JJ) in allowing the appeal and setting aside the order of the High Court, 1, that a meaningful interpretation to any provision of an Act of the Oireachtas should be given by the body charged with interpreting it, having regard to the terms of the provision, its context in the Act as a whole and the purpose of the Act.

That section 38(1)(b) of the Act of 2003 was a badly drafted provision which could have no meaningful effect in the operation of the Act in relation to European arrest warrants as there was no conduct specified in Article 2.2 of the Framework Decision, by reason of which it was impossible for a Court in the executing state to decide that an offence in a warrant consisted of conduct specified in Article 2.2.

That a tick in the requisite box on the warrant was an essential element in the preparation and issuing of a European arrest warrant if the issuing state wished to bring into application the provisions of Article 2.2 of the Framework Decision to an offence mentioned in the warrant. It was exclusively for the issuing state to determine what offences as defined by its law were offences to which Article 2.2 were applicable and, accordingly, if the box was not ticked, the only conclusion the executing state could draw was that the offence in the warrant was not an Article 2.2 offence within the meaning of the national law of the issuing state. Consequently, the High Court was incorrect in concluding that the first offence came within "the concept of some offence within Article 2.2 in this case being a fraud".

That, as the sentence imposed was a single, composite, sentence imposed for the three offences collectively, if the respondent were to be surrendered to serve the sentence he would be surrendered to serve a sentence which was in part imposed for the first offence. As there was no basis on which part of the sentence could be severed and apportioned among the three sentences so that he could be surrendered for the purpose of serving the amount of the sentence which related to the second and third offences, the request for surrender had to be refused.

Reporter: P.C.

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(a)(ii)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(b)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2

TREATY OF EU 1992 (MAASTRICHT TREATY) ART 39(1)

TREATY OF EU 1992 (MAASTRICHT TREATY) ART 34(3)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.4

EUROPEAN ARREST WARRANT ACT 2003 S38(1)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8(1)(d)

ADVOCATEN VOOR DE WERELD VZW v LEDEN VAN DE MINISTERRAAD 2007 ECR I-3633

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S25(1)

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S32

EUROPEAN ARREST WARRANT ACT 2003 S11(1)(b)

EUROPEAN ARREST WARRANT ACT 2003 S17

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(a)

EUROPEAN ARREST WARRANT ACT 2003 S5

AG v DYER 2004 1 IR 40

AG v HILTON 2005 2 IR 374

EUROPEAN ARREST WARRANT ACT 2003 S17

MIN FOR JUSTICE v BRENNAN UNREP SUPREME MURRAY 4.5.2007 2007/40/8282

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 2002/584/JHA 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.4

EUROPEAN ARREST WARRANT ACT 2003 S20

1

JUDGMENT of Murray C.J.delivered on the 31st day of July 2008

2

In this matter the High Court has made an order directing the surrender of the appellant to the relevant authorities of the Lithuanian Republic pursuant to the provisions of the European Arrest Warrant Act 2003, as amended. The order was made on foot of a European Arrest Warrant from a judicial authority in Lithuania, the issuing state addressed to Ireland, the executing state.

3

The appellant has appealed against the order of the High Court.

4

The European Arrest warrant in question contains a single request for the surrender of the appellant. That is to say, his surrender was sought and granted for the purpose of requiring him to serve a term of imprisonment imposed by a Court in Lithuania, the issuing state. The term of imprisonment imposed was two years and nine months. The sentence relates to three offences. Thus it is to be noted that a single sentence, one might call it a composite sentence, was imposed by the Lithuanian Court in respect of the three offences. Unlike many cases, the request for surrender does not relate to two or more offences in respect of which a term of imprisonment was imposed for each offence. This is an important fact as it concerns one of the grounds of appeal as shall be explained later in this judgment.

5

Although the surrender of the appellant was neither sought nor ordered for the purpose of prosecuting him for any offence, s. 10 of the Act of 2003 as inserted by s. of the Criminal Law (Terrorist Offences) Act 2005, and the Framework Decision, (cited in full below) provide that anorder for surrender may be made in respect of a person on whom a sentence of imprisonment has been imposed for an offence to which the European Arrest Warrant relates.

6

Surrender to the state which issued the warrant for the purpose of serving a sentence already imposed is however precluded in respect of any offence unless "a term of imprisonment or detention of not less than four months has been imposed on the person in respect of the offence in the issuing state". (S. 38(1)(a)(ii)). This is the so-called "gravity test" and the sentence in this case obviously passes that test.

7

For a very long time the law on extradition (to use that term in a generic sense) in this country stipulated that extradition could only be ordered in respect of an offence which was an offence against the law of this State or corresponded to such an offence. This is also the position generally adopted by other states. The underlying principle is that a country, as a general policy, often does not extradite persons to another country for the commission of an act which is...

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