Minister for Justice v Gotszlik

• Jurisdiction: Ireland
• Judge: Denham J.,Macken, J.
• Judgment Date: 19 February 2009
• Neutral Citation: [2009] IESC 13
• Court: Supreme Court
• Docket Number: [S.C. No. 359 of 2007]
• Date: 19 February 2009

Min for Justice v Gotszlik

Between/

The Minister for Justice Equality and Law Reform

Applicant/Appellant

and

Jaroslav Piotr Gotszlik

Respondent

[2009] IESC 13

Denham J.

Fennelly J.

Macken J.

[Record No: 359/2007]

THE SUPREME COURT

EXTRADITION

European arrest warrant

Multiple warrants - Statutory interpretation - Whether surrender could be ordered on more than one warrant - Rule of speciality - Literal interpretation - Purposive interpretation - Statutory presumption - Obligation to interpret national law in light of Framework Decision - Singular and plural - Criminal Proceedings against Pupino (Case C-105/03) [2005] ECR I-05285 and Ó Fallúin v Governor of Cloverhill Prison [2007] IESC 20, [2007] 3 IR 414 followed - European Arrest Warrant Act 2003 (No 45), s 22 - Framework Decision, articles 6 and 27 - Applicant's appeal allowed (359/2007 - SC - 19/2/2009) [2009] IESC 13

Minister for Justice v Gotszlik

Facts: The judicial authority in Poland had issued two separate warrants on which surrender of the respondent was sought. The High Court refused surrender on the basis of an interpretation of s.22 of the European Arrest Warrant Act 2003, as amended, implementing the Framework Decision and the rule of speciality. The Minister appealed against the judgment of the High Court and contended that the trial judge had erred in law in interpreting s. 22 as requiring the court to refuse the surrender of the respondent and in holding that only a literal interpretation of s. 22 was appropriate. The Minister contended that s. 18 of the Interpretation Act 2005 applied to s. 22 of the Act of 2003.

Held by the Supreme Court per Denham J. (Fennelly J. concurring), that while the second warrant was withdrawn it was an exceptional case enabling the Court to consider whether to hear a point of law in circumstances which had rendered the matter moot. By s. 22 the Oireachtas intended to implement the Framework Decision and the words of the section were clear. S. 22 provided for a specific statutory presumption and there was nothing before the Court to rebut that presumption. A purposive approach was also possible as to s. 22 and the rule of specialty. The Court had to follow the decision in Case C-105/03 Pupino [2005] ECR I-5285. No issue of contra legem applied to s. 22. The Court could order the surrender of a person on more than one arrest warrant. The facts of the case had altered and the respondent was no longer sought as to one offence. The respondent would be surrendered on one warrant only. Per Macken J. There existed the distinct possibility that more than one judicial authority might issue an arrest warrant in respect of the same person.

Reporter: E.F.

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S22

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 27

INTERPRETATION ACT 2005 S18

EUROPEAN ARREST WARRANT ACT 2003 S22(1)

EUROPEAN ARREST WARRANT ACT 2003 S22(2)

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 27.2

EUROPEAN ARREST WARRANT ACT 2003 S22(3)

CRIMINAL PROCEEDINGS AGAINST PUPINO 2005 ECR I-5285 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142

O FALLUIN v GOVERNOR OF CLOVERHILL PRISON 2007 3 IR 414 2007/49/10359 2007 IESC 20

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 9

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 7

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 7(1)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 7(2)

EUROPEAN ARREST WARRANT ACT 2003 S6

EUROPEAN ARREST WARRANT ACT 2003 S2

EUROPEAN ARREST WARRANT ACT 2003 S33

EUROPEAN ARREST WARRANT ACT 2003 S33(4)

EUROPEAN ARREST WARRANT ACT 2003 S33(5)

BLEKXTOON, VAN BALLEGOOIJ HANDBOOK ON THE EUROPEAN ARREST WARRANT 2004

1 Judgment delivered the 19th day of February, 2009 by Denham J.

2 1. This is an appeal by the Minister for Justice, Equality and Law Reform, "the Minister", from the refusal of the High Court (Peart J.) on the 2 ^nd November, 2007, to surrender Jaroslav Piotr Gotszlik, "the respondent", to Poland under s.16(1) of the European Arrest Warrant Act 2003 on two European Arrest Warrants which had issued on the 21 ^st and the 28 ^th November, 2006.

3 2. The central issue in the case arises in the circumstances that the judicial authority in Poland issued two separate warrants on which the surrender of the respondent is sought.

3. Two Warrants

4 2 3.1 The first warrant, the European Arrest Warrant arising from the judicial decision issued by the District Court in Ilawa on the 17 ^th February, 2006, relates to two offences, which were described as follows:-

5 i "I. In November 2005 in Ilawa, by applying violence in the form of pushing the abdominal part of the body, he led the minor Patrycja Otreba, aged 13, to sexual abuse in such a way that he kept touching her vagina with hands. Additionally, by applying force he attempted to lead to oral sexual intercourse but he failed to achieve the expected result due to resistance from the said minor.

6 ii II. In November 2005 in Ilawa, he led the minor Patrycja Otreba, aged 13, to another sexual activity by touching her vagina with hands."

7 3 3.2 The second European Arrest Warrant related to a sentence passed by the District Court in Ilawa on the 2 ^nd December, 2003. A custodial sentence of one year and four months had been imposed. The circumstances described were of assaults by the respondent on his wife. The nature and legal classification of the offence and the applicable statutory code were identified as physical and mental cruelty, and article 270 paragraph 1 of the Penal Code. In a further description it was stated that in the period between June 2000 and June 2002 the respondent applied physical and mental cruelty to his wife Wioletta Gotszlik when under the influence of alcohol, and the assaults were described. It was stated on the warrant that the respondent was present during the hearing and assing of the verdict, but that once the verdict was directed to execution, he left his residence and has been absconding from completing the punishment, and so he has been sought by way of a warrant of arrest.

4. Issue

8 The primary issue in this case is a construction of Irish statutory law in the light of the Framework Decision of the European Union. It arises as two warrants were issued by judicial authority in Poland. In the High Court surrender was refused on the basis of an interpretation of s.22 of the European Arrest Warrant Act, 2003, as substituted by s.80 of the Criminal Justice (Terrorist Offences) Act, 2005, hereinafter referred to as section 22.

9 5. Section 22 provides:-

10 2 "22.- (1) In this section, except where the context otherwise requires, 'offence' means, in relation to a person to whom a European arrest warrant applies, an offence (other than an offence specified in the European arrest warrant in respect of which the person's surrender is ordered under this Act) under the law of the issuing state committed before the person's surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant consists in whole or in part.

11 (2) Subject to this section, the High Court shall refuse to surrender a person under this Act if it is satisfied that-

12 a ( a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and

13 b ( b) the person will be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.

14 (3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to-

15 a ( a) proceed against him or her,

16 b ( b) sentence or detain him or her for a purpose referred to in subsection (2)( a), or

17 c ( c) otherwise restrict him or her in his or her personal liberty, in respect of an offence, unless the contrary is proved.

18 (4) The surrender of a person under this Act shall not be refused under subsection (2) if-

19 a ( a) upon conviction in respect of the offence concerned he or she is not liable to a term of imprisonment or detention, or

20 b ( b) the High Court is satisfied that, where upon such conviction he or she is liable to a term of imprisonment or detention and such other penalty as does not involve a restriction of his or her personal liberty, the said other penalty only will be imposed if he or she is convicted of the offence.

21 (5) The surrender of a person under this Act shall not be refused under subsection (2) if it is intended to impose in the issuing state a penalty (other than a penalty consisting of a restriction of the person's liberty) including a financial penalty in respect of an offence of which the person claimed has been convicted, notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to submit to any...