Minister for Justice, Equality and Law Reform v Abimbola

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 15 October 2008
• Neutral Citation: [2008] IEHC 312
• Docket Number: Record Number: No. 28 Ext./2008
• Court: High Court
• Date: 15 October 2008

[2008] IEHC 312

THE HIGH COURT

Record Number: No. 28 Ext./2008

Min for Justice v Abimbola

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Anthony Abimbola

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 (APPLICATION OF PART II) (AMDT) (NO 2) ORDER 2004 SI 725/2004

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S10(d)

MIN FOR JUSTICE v TOBIN UNREP HIGH PEART 12.1.2007 2007/41/8552

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 17.1

MIN FOR JUSTICE v Ó FALL ÚIN UNREP HIGH PEART 8.10.2008 2008 IEHC 302

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 26

EXTRADITION ACT 1965 PART III

Abstract:

Criminal law - Extradition - European arrest warrant - Statutory interpretation - Whether words used in section clear and unambiguous - Whether capable of effect relied upon - Delay in proceeding under warrant - Whether requirement that warrant executed as matter of urgency conferring rights on respondent - Whether failure of issuing state to provide reason for delay in executing warrant disentitling surrender - Whether order for surrender of respondent should be made - Framework Decision, Article 17 - European Arrest Warrant Act 2003 (No. 45), s 10.

Facts: Section 10 of the European Arrest Warrant Act 2003 provides, inter alia, that “[w]here a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person…on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she commenced serving that sentence…that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.” Article 17(1) of the Framework Decision provides that “[a] European arrest warrant shall be dealt with and executed as a matter of urgency”. The respondent had been convicted of rape in Germany and sentenced to imprisonment therefor. He had fled Germany prior to his conviction and sentence. A European arrest warrant was issued in 2005 for his return to serve the sentence. It was not endorsed for execution until 2008 at which point the respondent had already served sixteen months in prison in the State awaiting his extradition under a previous extradition request. He resisted the application for his surrender, inter alia, on the basis:- 1. that he was not a person to whom section 10 of the Act of 2003 applied on the basis that he had not fled from the issuing state after the imposition of sentence and before serving that sentence since he had left that jurisdiction before conviction and sentence; 2. that there had been a delay in proceeding under the European arrest warrant and that the court had no jurisdiction as a result by virtue of section 10 in conjunction with Article 17 of the Framework Decision; 3. that surrender was prohibited under section 37 of the Act of 2003 as there was no guarantee that time spent in custody would be credited against the sentence to be served in Germany and; 4. that the issuing state had refused to provide certain information sought by the respondent.

Held by Peart J in ordering the surrender of the respondent:-

1. that the Act of 2003 had to be interpreted as far as possible having regard to the aims and objectives of the Framework Decision unless to do so would be contra legem and that the precise and clear words of section 10 could be read as indicating in paragraph (d) that a European arrest warrant could be issued following the imposition of a sentence simpliciter, whether or not the person left before or after the imposition of sentence;

2. That delay between the issue of a European arrest warrant and the transmission and execution of it was not a ground for refusal of surrender. Article 17 of the Framework Decision represented an intention by Member States that when one Member State sought the surrender of a person from another Member State, the latter would deal with it expeditiously and was not something upon which the respondent could rely on in order to resist an order for surrender;

3. That the respondent was not entitled to be provided with confirmation, in advance of surrender being ordered, from the applicant that if surrendered he would be given credit for time spent in custody in the State against the sentence of imprisonment to be served in the issuing state;

4. That the respondent had no entitlement to information sought from the issuing state regarding the delay in executing the warrant since it was not necessary in the interests of due process in relation to any point of objection raised by him.

Reporter: P.C.

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought by a judicial authority in the Federal Republic of Germany under a European arrest warrant which issued there on the 18^thFebruary 2005. In unusual circumstances which I shall come to in due course, this warrant was not endorsed here for execution until the 23^rd January 2008.

2 The respondent was duly arrested on foot of this warrant on the 29^th January 2008, and on the following day the respondent was brought before the Court as required by s.13 of the European Arrest Warrant Act, 2003, as amended. Since that date he has been remanded from time to time on bail, pending the hearing of this application for his surrender.

3 His surrender is sought so that he can serve a sentence of five years and six months' imprisonment which was imposed on him following his conviction on the 25^th October 2000 for an offence of rape committed in Germany. That offence is one of the offences listed in Article 2.2 of the Framework Decision, and has been marked on the warrant as being such an offence, and therefore one in respect of which double criminality is not required to be verified. The minimum gravity requirement is satisfied in this case since the respondent has been sentenced to more than four months' imprisonment in respect of the offence.

4 There is no issue raised by the respondent as to his identity, and the Court is in any event satisfied from the evidence on affidavit of Sgt. Linehan who arrested him on the 29^th January 2008 that he is the person in respect of whom this European arrest warrant has been issued.

5 Since it is apparent from the documentation in this case that the respondent attended for his trial, even though he had absented himself just prior to conviction and sentence being pronounced by the court in Germany, no undertaking pursuant to s. 45 of the Act is required to be given by the issuing judicial authority.

6 There is no reason under sections 21A, 22, 23 or 24 of the Act to refuse to order surrender.

7 Before addressing the Points of Objection being raised by the respondent, I will set out a history of events which form the background to this present application for the surrender of the respondent, and much of which is relevant to the points of objection being submitted.

8 The present application is the second attempt by the authorities in Germany to achieve the extradition of the respondent. The first application proceeded, eventually unsuccessfully, under Part II of the Extradition Act,1965.

9 It appears that on the 3^rd September 2003 a request was made to the Minister for Justice, Equality and Law Reform for the extradition of the respondent under Part II of the 1965 Act, and that early in 2004 certain additional information was received from the German authorities for that purpose. It is a fact, however, that the European Arrest Warrant Act, 2003 came into force here on the 1^st January 2004. But it was not until the 24^th November 2004 that Part II of the 1965 Act was actually disapplied in respect of the Federal Republic of Germany. On the 18^th February 2005, the German judicial authority issued the present European arrest warrant, but that warrant was not transmitted to this State until much later, and the application to achieve the extradition of the respondent continued to be pursued here under Part II of the 1965 Act.

10 One can only assume that a decision was taken at some level here that since the Request for the respondent's extradition under Part II had been received here prior to 1^st January 2004, it was appropriate to proceed thereunder, even after the disapplication of Part II in respect of Germany in November 2004.

11 In due course, a warrant under Part II was issued here by the High Court for the arrest of the respondent and he was duly arrested on foot of same on the 19^th July 2006. That application took its normal course, and an order for his extradition was duly made by the High Court. That decision was successfully appealed to the Supreme Court. The respondent had spent some sixteen months in custody before being released by the Supreme Court by its order dated 28^th November 2007.His release was ordered since Part II of the 1965 Act had been disapplied in respect of Germany as of the 24^th November 2004 by Statutory Instrument 725/2004, and the High Court therefore had no jurisdiction to make the order for extradition under that Act, on the date on which it so ordered, even though the Request was received here prior to the coming into force of the European Arrest Warrant Act, 2003 on the 1^st January...