The Minister for Justice & Equality v Skiba
 IESC 68
THE SUPREME COURT
O'Donnell Donal J.
O'Malley Iseult J.
[Supreme Court Appeal No. 2017/33]
[Court of Appeal Record No. 2016/594]
[High Court Record No. 2016/86 EXT]
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED
Force majeure – Surrender – Foreseeability – Appellant seeking to appeal to the Supreme Court on a single net legal issue – Whether the Court of Appeal was correct in its determination of the applicable law in light of the decision of the CJEU in Case C-640/15 Tomas Vilkas
On the 1st December, 2016, the High Court ordered the surrender of Mr. Skiba (also referred to as ‘the appellant’) to the Republic of Poland pursuant to section 16(1) of the European Arrest Warrant Act 2003, as amended. That State had requested his extradition so that he could serve two sentences of imprisonment for offences committed there. His surrender was set for the 22nd December, 2016. It was to be effected in the usual manner, that is, by commercial airline.
The reader will not be surprised to learn that the planned surrender was not as straightforward as anticipated. On the 12th December, the appellant's solicitors contacted the Garda Extradition Unit to inform it that Mr. Skiba had a fear of flying. This was the extent of the information conveyed. There followed a course of correspondence between the relevant Irish and Polish authorities, with the former seeking to make alternative travel arrangements for Mr. Skiba's surrender. Ultimately, however, it was decided to proceed with the plan as originally conceived. Having arrived at the departure gate at Dublin Airport, the appellant refused to embark the aircraft. It being apparent that it would require more than minimal force to get him aboard, the Captain of the airplane refused to allow him to board.
The next day the Minister for Justice and Equality (‘the Minister’) made an application in the High Court seeking to fix a new date for surrender. A prerequisite to the making of such order is that the original surrender must fail ‘because of circumstances beyond the control’ of the States concerned. If such condition is not satisfied, the High Court must discharge the requested person. Humphreys J. decided not to follow the then recently delivered Opinion of Advocate General Bobek in Case C-640/15 Tomas Vilkas, which had stated that ‘circumstances beyond the control’ must be understood as referring only to situations of force majeure as understood in EU law; thus such circumstances can be invoked only if, inter alia, they could not be foreseen by the States in question. Incidentally the preliminary reference in that case had been made by the Irish Court of Appeal. Humphreys J. preferred instead to apply the ‘normal’ meaning of force majeure, which does not impart any element of foreseeability. The learned judge fixed the 5th January, 2017, as the new date for the surrender of Mr. Skiba.
The appellant appealed to the Court of Appeal. By judgment dated the 12th January, 2017, that Court found that the appellant's resistance to boarding the plane was not foreseeable in the circumstances of the case, and accordingly that it was a circumstance ‘beyond the control’ of the State. Thus the High Court judge's assessment was correct, and the appeal was dismissed. Mr. Skiba was surrendered to Poland on the 14th January, 2017.
Eleven days later the Court of Justice of the European Union (‘the CJEU’) delivered its judgment in C-640/15 Tomas Vilkas (‘Vilkas’) and adopted an interpretation of ‘circumstances beyond the control’ of the Member States which was in line with the Advocate General's Opinion. The appellant was granted leave to seek a further appeal to this Court on a single net legal issue. The sole question posed asks whether the Court of Appeal was correct in its determination of the law applicable in this case in light of the subsequent decision of the Court of Justice in . In essence the issue is whether Mr. Skiba's solicitor's phone call to the Irish authorities rendered it foreseeable that he would refuse to board the aircraft on the 22nd December; if so, what transpired on that date could not be said to have been ‘beyond the control’ of the State and thus the High Court should have made an order discharging the appellant, rather than fixing a new date for surrender.
At the hearing of the appeal, another issue arose out of the discussion of the judgment of the CJEU in . That Court held that the expiry of the time limits for surrender does not relieve the executing Member State of its obligation to carry on with the procedure for executing a European Arrest Warrant (‘EAW’) and to surrender the requested person, and that the relevant authorities must agree on a new surrender date. The issue that arose on the appeal related to the meaning of the word ‘discharged’ in section 16(5)(b) of the European Arrest Warrant Act 2003, as amended, and in particular how that subsection should be interpreted in light of the decision of the CJEU. To that end the Court invited further written submissions from the parties on that point.
Furthermore, again subsequent to the hearing of this appeal, the Court of Appeal delivered judgment in , the case having been referred back to that Court following the judgment of the CJEU. Mr. Vilkas was subsequently granted leave to appeal that judgment to this Court. As the two cases concern the interpretation of the same provisions of domestic and EU legislation, albeit different subsections thereof, it was decided that the parties to this appeal should be permitted to make oral submissions following the hearing in the appeal. Unsurprisingly, as both cases in essence arise out of the judgment of the CJEU in , there is substantial overlap in many respects, although the net legal issue in each case is distinct. Accordingly, regard should also be had to my judgment in , delivered on the same date as the within judgment.
Council Framework Decision on the European Arrest Warrant
Before setting out the background and procedural history of the case, it may be helpful at this juncture to cite the applicable law, which has both an EU and a domestic dimension to it. At EU level, the relevant enactment is Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA; Official Journal L 190, 18/07/2002), as amended by Council Framework Decision 2009/299/JHA (‘the Framework Decision’). This is, of course, the framework decision which established the EAW system. Article 23 thereof provides for the time limits for the surrender of the person requested. It states that:
Time limits for surrender of the person
1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.
2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.
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.
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 judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.’ (Emphasis added)
This Article is referred to in this judgment as ‘Article 23’ or ‘Article 23 F.D.’.
The European Arrest Warrant Act 2003
The Framework Decision on the European Arrest Warrant is given effect in domestic law by the European Arrest Warrant Act 2003, as amended (‘the 2003 Act’). The relevant provisions for present purposes are contained in section 16 thereof; they read as follows:
‘16. Committal of person named in European arrest warrant
(1) Where a person does not consent to his or her surrender to the issuing state the High Court may, upon such date as is fixed under s.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—
(a) the High Court is satisfied that the person before it is the person in respect of whom the European Arrest Warrant was issued,
(b) the European Arrest Warrant, or a true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,
(c) the European Arrest Warrant states, where appropriate, the matters required by...
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