Rimsa v Governor of Cloverhill Prison and Another

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 28 July 2010
• Neutral Citation: [2010] IESC 47
• Court: Supreme Court
• Date: 28 July 2010

Rimsa v Governor of Cloverhill Prison & Min for Justice

BETWEEN

SERGEJS RIMSA

APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

NOTICE PARTY

[2010] IESC 47

Murray C.J.

Kearns P.

Hardiman J.

Fennelly J.

Finnegan J.

03 & 172/08

THE SUPREME COURT

EXTRADITION

European arrest warrant

Time limit - Surrender - Unlawful detention - Postponement of surrender beyond initial ten days - Agreement for postponement made by central authorities rather than judicial authorities - Statutory interpretation - Meaning of "judicial authority" - Role of central authorities - Conflict between statute and framework decision - Interpretation of national law in conformity with framework decision - Appropriate authority in issuing state - Whether applicant's detention in accordance with law - Whether postponement invalid - Whether reasonable grounds for postponement - Whether agreement in accordance with framework decision - Whether surrender prevented by circumstances beyond control of member states - Dundon v Governor of Cloverhill Prison [2005] IESC 83, [2006] 1 IR 518; Minister for Justice v Altaravicius [2006] 3 IR 148; Criminal Proceedings against Maria Pupino (Case C-105/03) [2005] ECR I-5285 considered - European Arrest Warrant Act 2003 (No 45), ss 10 and 16 - Constitution of Ireland 1937, art 40.4.2 - Council Framework Decision (2002/584/JHA), art 23(3) - Treaty on European Union, art 34(2)(b) - Applicant's appeal allowed (3 & 172/2008 - SC - 28/7/2010) [2010] IESC 47

Rimsa v Governor of Cloverhill Prison

Facts: The High Court ordered in December 2007 that the applicant/ appellant be surrendered to Latvia. In accordance with s. 16(3) of the European arrest warrant Act 2003 the surrender was not to take effect before the expiration of a period of 15 days after the making of an order for surrender. No appeal was lodged in this time period. The Latvian Central Authority was notified on 13 December 2007 of the meaning of the Order and further reminders were sent with no response from that Authority. The Latvian Authorities then responded to communications and indicated that they were not able to arrange surrender until after 7 January 2008, the expiry date for surrender, which was then fixed at 9 January 2008 by way of agreement. The appellant then contended that his detention after 7 January was unlawful. He alleged that the State had not entered into a valid or lawful agreement to postpone surrender, in breach of Article 23 of the Framework Decision. S. 16 of the Act of 2003, as emended provided that the Central Authority would agree a date after the expiry of a surrender deadline. The application of s. 10 of the Act, as amended, also arose for conideration.

Held by the Supreme Court per Murray CJ (Kearns P, Hardiman, Fennelly, Finnegan JJ.), that there was a clear and manifest conflict between Article 23 of the Framework Decision and s. 16(5) of the Act of 2003, the latter expressly permitting any agreement by an authority in the State on a new surrender date and not the executing judicial authority, unlike the Framework Decision. This was to ensure that any postponement took place under judicial control. National legislation had to be interpreted in light of the Framework Decision. Subsection 5(b) did not specify the Central Authority or any authority in the issuing state as the authority with which an agreement for a postponed surrender date could be made. There was an express requirement in Article 23(3) that any such agreement should be reached with the issuing authority, which in this case was the Latvian Court. This accorded with the objectives of the surrender system. Since this was not done, there was no valid agreement to postpone the date of surrender. The applicant should have been released immediately on the expiry of the ten day period. It was discomforting that the State sought to rely on the provisions of s. 10 of the Act of 2003, administrative provisions, to persist with surrender despite the conflicting state of legal obligations existing with respect to Article 23. There was no valid agreement to postpone the date of surrender and the continued detention of the appellant was unlawful

Reporter: E.F.

CONSTITUTION ART 40.4.2

EUROPEAN ARREST WARRANT ACT 2003 S16

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S76

EUROPEAN ARREST WARRANT ACT 2003 S16(3)

EUROPEAN ARREST WARRANT ACT 2003 S16(5)

EUROPEAN ARREST WARRANT ACT 2003 S16(5)B

EUROPEAN ARREST WARRANT ACT 2003 S16(7)

RIMSA v GOVERNOR OF CLOVERHILL UNREP HEDIGAN 11.1.2008 2008/55/11480 2008 IEHC 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 23(3)

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 23

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S16(6)

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

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) RECITAL 6

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

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148

CRIMINAL PROCEEDINGS AGAINST MARIA PUPINO C-105/03 COURT (GRAND CHAMBER) 16.06.2005

EC TREATY ART 34(2)(B)

EUROPEAN ARREST WARRANT ACT 2003 S16(6)

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 23.3

EUROPEAN ARREST WARRANT ACT 2003 S11

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

1 JUDGMENT of Murray C.J.delivered on the 28th day of July 2010

2 Judgment delivered by Murray C.J. [nem diss]

3 This judgment sets out the reason why at the hearing of the appeal in this matter, the Court ordered the release of the applicant pursuant to Article 40.4.2° on the grounds that it was not satisfied that his then detention in custody was in accordance with law. The appeal was against an order of the High Court refusing his application.

4 By order of the High Court dated 13 ^th December, 2007, it was ordered, pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended, (hereafter "the Act" or "the Act of 2003) that the applicant be surrendered to the authorities of the Republic ofLatvia in respect of a criminal offence specified in a European arrest warrant seeking such surrender.

5 That order of the High Court which was addressed, inter alia, to the respondent, the Governor of Cloverhill Prison directed that the applicant be lodged in Cloverhill Prison and be detained there in custody for a period of not less than fifteen days from the date of the order "until the date of his delivery as aforesaid and for any further period as may be necessary under the law". It was the detention on foot of the said order which the applicant contended was unlawful.

Section 6 of the Act of 2003

6 Section 16 of the Act of 2003 as amended by s. 76 of the Criminal Justice (Terrorist Offences) Act 2005 provides as follows:

7 2 16.-(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9) the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that-

8 (a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

9 (b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,

10 (c) where appropriate, an undertaking under section 45 or a facsimile or true copy thereof is provided to the court,

11 (d) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

12 (e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).

13 (2) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 14 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that-

14 (a) the European arrest warrant and, where appropriate, an undertaking under section 45, or facsimile or true copies thereof are provided to the court,

15 (b) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

16 (c) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

17 (d) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).

18 3 (2A) Where the High Court does not-

19 (a) make an order under subsection (1) on the date fixed under section 13, or

20 (b) make an order under subsection (2) on the date fixed under section 14,

21 it may remand the person before it in custody or on bail and, for those purposes, the High Court shall have the same powers in relation to remand as it would...