Minister for Justice, Equality and Law Reform v Desjatnikovs

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 31 July 2008
• Neutral Citation: [2008] IESC 53
• Court: Supreme Court
• Docket Number: [S.C. No. 287 of 2007]
• Date: 31 July 2008

Min for Justice v Desjatnikovs

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Ivans Desjatnikovs

Respondent/Appellant

[2008] IESC 53

Murray C.J.

Denham J.

Finnegan J.

Record No. 287 of 2007

THE SUPREME COURT

EXTRADITION

European Arrest Warrant

Offence - Identification of offence in respect of which surrender may be ordered - Listed categories of offence exempt from requirement of double criminality - Offence not selected from list of categories of offence recited in warrant - Whether corresponding offence - Whether issuing state required to select category of offence - Whether court can inquire if facts alleged constitute offence contrary to law of issuing state within categories of offence listed - Criminal Proceedings against Pupino (Case C-105/03) [2005] ECR I-05285 followed - European Arrest Warrant Act 2003 (No 45), s 38(1) - Framework Decision, (2002/584/JHA), article 2, annex - Respondent's appeal allowed (287/2007 - SC - 31/7/2008) [2008] IESC 53

Minister for Justice, Equality and Law Reform v Desjatnikovs

STATUTORY INTERPRETATION

Literal approach

Purposive approach - Statute transposing Framework Decision into law of State - European Arrest Warrant Act 2003 (No 45), s 38(1)(b) - Framework Decision, (2002/584/JHA), article 2 - Respondent's appeal allowed (287/2007 - SC - 31/7/2008) [2008] IESC 53

Minister for Justice, Equality and Law Reform v Desjatnikovs

Statutory interpretation - Words and phrases - "or is an offence that consists of conduct specified in..." - Purposive approach - Contextual approach - Whether phrase to be interpreted in light of purpose of Act and European Framework Decision which it implements - European Arrest Warrant Act 2003 (No 45), s 38(1)(b).

Facts: section 38(1) 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 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. Latvia issued a European arrest warrant for the surrender of the respondent to that state to face a charge in relation to one offence 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. It based its decision on what it perceived as the lack of any specific requirement that the issuing state mark or indicate the relevant offence on the list and that the courts in the State should decide whether the conduct alleged constituted conduct coming within the offences on the list, whether ticked or not. The respondent appealed to the Supreme Court.

Held by the Supreme Court (Denham J; Murray CJ and Finnegan J concurring) in allowing the appeal that, 1, an arrested person was entitled to be informed of the reasons for his arrest and of any charge against him in plain language which he could understand.

2. That the words of section 38(1) could not be taken in isolation and should be construed, as far as possible, in accordance with the Framework Decision.

3. That the words used in the Framework Decision were precise and clear and referred to the list of offences 'as they were defined by the law of the issuing...state".

4. That the form of European arrest warrant annexed to the Framework Decision, which the Member States were required to follow as far as possible, expressly required that a tick be placed against the relevant offence. Inherent in the Framework Decision and the Act of 2003 was the requirement that the issuing state should identify the offence and its penalty by this method and this method only.

5. That the words "or is an offence that consists of conduct specified in that paragraph" used in section 38(1)(b) of the Act of 2003 were ambiguous and had to be construed in context and in view of the purpose of the Act of 2003 and the Framework Decision. Accordingly, they did not establish a system whereby an Irish court had the role of deciding whether, on the facts recited therein, a warrant referred to an offence in the issuing state. If an issuing state failed to classify the offence, it was not open to a court in the executing state to determine, for the purposes of a European arrest warrant, whether an offence in the warrant was an offence to which article 2.2 applied, unless the issuing state stated that that was so by ticking the relevant box on the specified form.

Reporter: P.C.

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S11(1)

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

EUROPEAN ARREST WARRANT ACT 2003 PART B

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ANNEX (e)

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

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S5

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S70

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2

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

ADVOCATEN VOOR DE WERELD VZW v LEDEN VAN DE MINISTERRAAD 2007 ECR I-03633

CRIMINAL PROCEEDINGS AGAINST MARIA PUPINO 2005 ECR I-05285

EUROPEAN ARREST WARRANT ACT 2003 S11

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518

1 Judgment delivered the 31st day of July, 2008by Denham J.

2 1. This is an appeal by Ivans Desjatnikovs, the respondent/appellant, "the appellant", from an order and judgment of the High Court (Peart J.), given on the 10 ^th October, 2007, which ordered the surrender of the appellant to the Republic of Latvia on a European arrest warrant.

3 2. The European arrest warrant was issued by a judicial authority in Riga on the 7 ^th December, 2005. It was endorsed by the High Court for execution on the 23 ^rd January, 2007. The appellant was arrested on the 31 ^st January, 2007 and brought before the High Court. Subsequently the matter came before the High Court for determination pursuant to s.16 of the European Arrest Warrant Act, 2003.

3. Offence

4 At issue in this appeal is the offence on the European arrest warrant, and whether it is one upon which an order may be made directing the surrender of the appellant.

4. The offence on the European Arrest Warrant

5 The European arrest warrant states that it relates to one offence. It provides at paragraph (e):-

"(e) Offences"

6 This warrant relates to in total 1 (one) criminal offence.

7 Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person: Ivans Desjatnikovs, id. no. 300653- 10235, being the chairman of the board of the holding company - pawnshop "OMEGA" (reg. No. 40003231019, legal address: Riga street 34, Daugavpils), being the materially responsible person, in January-February 2002 handed out to himself for his economic needs from the cash desk of the pawnshop sums of money in cash and up till now had not accounted for disposal of 45000 Lvl, as well as had not returned the money in the cash desk. The power to act with the property and means of the pawnshop was delegated to I. Desjatnikovs according to Article 22 of Statutes of the holding company - pawnshop "Omega". The money was handed out by filling in the following documents:

8 · - cash expense order No. 1 from 2 January 2002 for the amount of 44000,00Lvl;

9 · - cash expense order No. 8 from 30 January 2002 for the amount of 552,15Lvl;

10 · - cash expense order No. 9 from 6 February for the amount of 516,85Lvl.

11 I.Desjatnikovs has signed the mentioned orders as the materially responsible person, confirming the fact of handing out of the money from the cash desk, as well as the receiver of the money, confirming the fact of receipt of the money. Moreover the fact of money receipt was entered in the cashbook of the pawnshop, where in pages No. 1 on 2 January 2002, No. 18 on 30 January 2002 and No. 22 on 6 February 2002 I.Desjatnikovs, had placed his signature.

12 Also in pre-trial investigation it is established that Ivans Desjatnikovs, being the chairman of the board of the holding company - pawnshop "Omega", in 2001, the more precise date is not established, presenting himself as an employee of the mentioned pawnshop, received money in the amount of 7300Lvl as a loan from his acquaintance Anna Greckina and undertook to pay to A.Greckina 2% of the amount monthly. Further on I. Desjatnikovs did not fulfil his obligations. Thereof the heir of A.Greckina's rights - her daughter Natalija Iljina, born in 1951, insisted on the official drawing up of the afore mentioned loan agreement. On 17.11.2001 I.Desjatnikovs, identifying himself as the manager of the pawnshop "Omega", actually being the chairman of the board of the pawnshop, and Natalija Iljina has signed the loan agreement, according to which the creditor Natalija Iljina grants the pawnshop "Omega" for a term of one year sum of money in the...