Rimsa v Governor of Cloverhill Prison and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,Mr Justice Michael Peart
• Judgment Date: 02 May 2008
• Neutral Citation: [2008] IEHC 125,[2008] IEHC 6
• Court: High Court
• Date: 02 May 2008

[2008] IEHC 125

THE HIGH COURT

Record Number: No. 355 SS/2008

Rimsa v Governor of Cloverhill Prison & Ors

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

AND IN THE MATTER OF THE HABEAS CORPUS ACT, 1782

AND IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT,

2003, AS AMENDED

BETWEEN:

SERGEJS RIMSA

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON, IRELAND AND THE ATTORNEY GENERAL

RESPONDENT

HABEAS CORPUS ACT 1782

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S16(3)

EUROPEAN ARREST WARRANT ACT 2003 S16(5)

EUROPEAN ARREST WARRANT ACT 2003 S16(6)

EUROPEAN ARREST WARRANT ACT 2003 S16(7)

EUROPEAN ARREST WARRANT ACT 2003 S18

CONSTITUTION ART 40.4.2

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

EUROPEAN ARREST WARRANT ACT 2003 S16(5)(a)

EUROPEAN ARREST WARRANT ACT 2003 S16(5)(b)

CONSTITUTION ART 40.4

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

MENTAL HEALTH ACT 2001 S14

CHILDREN ACT 2001 S142

CHILD CARE ACT 1991 S12

IMMIGRATION ACT 1999 S5

K (D) v CROWLEY & ORS 2002 2 IR 744

DOMESTIC VIOLENCE ACT 1996 S4(3)

AIR CANADA v AG OF CANADA 2003 222 DLR (4TH) 385

EUROPEAN ARREST WARRANT ACT 2003 S16

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 1999 PARA 4.04

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 1999 PARA 4.10

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 1999 PARA 7.01

CAHILL v SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(b)

EAST DONEGAL CO-OP v AG 1970 IR 317

MCDONALD v BORD NA GCON 1965 IR 217

EXTRADITION

Habeas corpus

European arrest warrant - Time limits for surrender - Lapse of time limit - Procedural safeguards - Principles of fundamental justice - Locus standi - Res Judicata - Presumption of constitutionality - Central authority agreed with issuing state to date for surrender outside 10 day period - Necessity - Whether postponement of surrender justified under law - Whether s. 16(5) unconstitutional - Whether section permitted indefinite detention - Whether circumstances beyond control of member state justified extension of surrender date - Whether lawfulness of applicant's detention res judicata - Objectives and aims of Framework Decision - Expressed intention that surrender take place as soon as possible- Whether circumstances could arise where surrender takes place outside period of ten days from date of final decision on surrender - Whether court order made in knowledge that detention may need to go beyond 10 day period - Whether detention unlawful - DK v Crowley [2002] 2 IR 744 & Air Canada v Attorney General of Canada 222 DLR 385 considered; Cahill v Sutton [1980] 1 IR 269 distinguished - European Arrest Warrant Act 2003 (No 45), s 16(5) and 18 - Constitution of Ireland 1937, art 40.4 - Council Framework Decision 2002/584/JHA, art 23(3) - Application refused (2008/355SS - HC - 2/5/2008) [2008] IEHC 125

Rimsa v Governor of Cloverhill Prison

Facts: it was ordered by the High Court, pursuant to s. 16(1) of the European Arrest Warrant Act 2003, that the applicant be surrendered to Latvia pursuant to a European arrest warrant and that he be committed to prison pending the carrying out of his surrender. The date by which his surrender had to be implemented was provided for in s. 16(5) as being not later than ten days after the order took effect "or (b) such date as may be agreed between by the Central Authority in the State and the issuing state". Accordingly, the surrender of the applicant should have occurred not later than the 6th January, 2008. Due to travel difficulties, the Latvian authorities requested that the date for surrender be the 9th January. The Irish Central Authority agreed to that date. The applicant applied for an order for his release under Article 40.4 of the Constitution on the basis that his detention had become unlawful after the 6th January. The High Court refused that application on the basis that there were circumstances of necessity requiring the arranging of a later date for surrender. The applicant then applied to the High Court again pursuant to Article 40.4 for his release on the basis that, given the prior findings of the High Court on the first application, s 16(5) had to be found to be unconstitutional since it permitted of the indefinite detention of a person whose surrender had been ordered, since there was no outer limit specified in the section to any further date which the Central Authority and the issuing state might agree between themselves as a date for surrender beyond the date prescribed by s. 16(5) and in circumstances where there was no provision for court supervision of or involvement in any such agreed date.

Held by Mr Justice Peart in finding that the provisions of s 16(5)(b) of the Act of 2003 were not unconstitutional and that the applicant's detention was lawful:

I. that the applicant had been detained on foot of a judicial, rather than adminstrative, decision pending the carrying out of his surrender in the full knowledge that his surrender might not actually occur within ten days following the taking effect of the surrender order, since the possibility of some later date thereafter being the date of actual surrender taking place was envisaged by the other provisions of s. 16 of the Act.

II. that a margin of appreciation had to be allowed to those persons whose delegated function it was to make or agree to appropriate arrangements for surrender.

III. that it was a necessary presumption, inherent in the presumption of constitutionality of the Act of 2003, that those in whose power or discretion it was to make those administrative arrangements necessary for surrender to take place, would exercise that power and exercise that discretion in good faith and in accordance with constitutional principles, such as that the detention would not be for a period longer than was reasonably necessary for the purpose of achieving a successful surrender.

Reporter: P.C.

1 Mr Justice Michael Peartdelivered on the 2nd day of May 2008:

2 This is an application by the applicant for his release on the basis that his current detention is unlawful. He is currently held in custody on foot of an order for his committal to prison pending his surrender to Latvia under a European arrest warrant.

3 Before addressing the legal submissions made on behalf of the applicant in this regard, it is necessary to set out the relevant background to the applicant's present detention.

4 By order of this Court dated 13 ^th December 2007 it was ordered that the applicant be surrendered to the Republic of Latvia pursuant to a European Arrest Warrant dated 6 ^th September 2007 and that he be committed to prison pending the carrying out ofhis surrender. That order was made pursuant to the provisions of section 16 (1) of the European Arrest Warrant Act, 2003 (as amended), and took effect, as provided by section 16 (3) of the Act, 15 days thereafter on 28 ^th December 2007. It should be noted that the applicant did not request, as he was entitled to do, that the order should take effect sooner than fifteen days.

5 The Committal Warrant on foot of which the first named respondent holds the applicant directs his detention for the period of not less than 15 days (i.e. the period leading up to the taking effect of the surrender order), " and any further period as may be necessary under law" (my emphasis).

6 The date by which his surrender must be implemented is provided for in section 16(5) of the Act, but subsections (6) and (7) of that section have relevance also. These provisions are as follows:

7 (5) Subject to subsection (6) and section 18, a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after-

8 (a) the order takes effect in accordance with subsection (3), or

9 a (b ) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.

10 (6) Where a person makes a complaint under Article 40.4.2° of the Constitution, he or she shall not be surrendered to the issuing state while proceedings relating to the complaint are pending.

11 (7) A person (to whom an order for the time being in force under this section applies) who is not surrendered to the issuing state in accordance with subsection (5), shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending." (my emphasis)

12 These provisions can be seen as the manner in which the Oireachtas has chosen to give effect to the provisions of Article 23 of the Framework Decision which provides:

"Article 23 Time limits for surrender of the person "

13 1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.

14 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.

15 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

16 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing...