The Minister for Justice & Equality v Vilkas

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date05 December 2018
Neutral Citation[2018] IESC 69
Docket Number[S.C. No. 32 of 2018],[Supreme Court Appeal No. 2018/32] [High Court Record Nos. 2014/81 EXT and 2014/115 EXT]
CourtSupreme Court
Date05 December 2018
Between /
THE MINISTER FOR JUSTICE AND EQUALITY
Applicant/Respondent
-and-
TOMAS VILKAS
Respondent/Appellant

[2018] IESC 69

McKechnie J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

O'Malley Iseult J.

[Supreme Court Appeal No. 2018/32]

[Court of Appeal Record Nos. 2015/445 and 2015/451]

[High Court Record Nos. 2014/81 EXT and 2014/115 EXT]

THE SUPREME COURT

Force majeure – Surrender – Extension of time – Appellant seeking to appeal to the Supreme Court against a finding of the Court of Appeal – Whether only one extension of the surrender procedure is possible

Facts: A court in Lithuania issued two European Arrest Warrants seeking the surrender of the appellant, Mr Vilkas, to that country. On the 9th July, 2015, the High Court made two orders pursuant to s. 16(1) of the European Arrest Warrant Act 2003 ordering that the appellant be surrendered as requested. However, Mr Vilkas twice successfully frustrated his surrender to that State by refusing to board the commercial airline flights which were due to take him there. Where a requested person has not been surrendered within the time limits firstly prescribed, by s. 16, due to circumstances beyond the control of the State (meaning a force majeure), it is possible, pursuant to s. 16(5)(a), to extend the time for surrender and to fix a new date for that purpose. The High Court held that it did not have jurisdiction to entertain an application for a second date, and so “discharged” the appellant. The respondent, the Minister for Justice and Equality, appealed that decision to the Court of Appeal, which referred two questions concerning the interpretation of Article 23 of the Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) to the Court of Justice of the European Union (the CJEU). One such question asked whether Article 23 contemplates or allows for the agreement of a new surrender date on more than one occasion. The CJEU answered that question in the affirmative, holding that the provision in question contains no express limitation on more than one renewal of the extension procedure: in so doing it looked to the purpose and goals of the Framework Decision in order to ascertain the meaning of Article 23. Having done so, the Court concluded that it would be contrary to the objectives of that Decision if only one extension period was permissible under that Article. Following receipt of the opinion of the CJEU, the Court of Appeal held that the relevant subsections of s. 16 can and should be given an interpretation which conforms with the construction of Article 23 as stated by the Court of Justice; accordingly, more than one new surrender date could be set, provided that the pre-condition therefore, namely the existence of force majeure is made out on each such occasion. The appellant appealed that finding to the Supreme Court. Although he accepted the judgment of the CJEU as binding in respect of the interpretation of Article 23, it was his position that the clear, literal meaning of s. 16 is that only one extension of the surrender procedure is possible, and that the words used in that provision cannot validly be interpreted as providing for multiple extensions.

Held by McKechnie J that: (i) the cumulative effect of the relevant measures of the 2003 Act, namely s. 16(4)(c), (5)(a)(i) and (5A)(a), is that provision is made for the fixing of one new surrender date and no more; (ii) such follows from the natural and ordinary meaning of these sections, there being no ambiguity in that regard; (iii) the principle of conforming interpretation cannot be utilised to render such provisions consent with the opinion of the CJEU in Case C-640/15 Tomas Vilkas regarding Article 23 of the Framework Decision: to hold otherwise would be against the wording so used; (iv) if surrender has not taken place within the timeframe for the original s. 16(1) or (2) order, or if a new surrender date has been obtained within the time period therefore, then pursuant to s. 16(5)(b) and (5A)(b) of the Act, the person must be discharged and the surrender process on foot of the issued warrant: that particular process is at an end; (v) the subsections last mentioned cannot be read to accord with the Vilkas judgment on this point; and (vi) the other issues raised do not require determination.

McKechnie J held that he would allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 5th day of December, 2018
Introduction
1

These proceedings arise out of the issuing by a court in Lithuania of two European Arrest Warrants seeking the surrender of Mr Tomas Vilkas (‘the appellant’) to that country. He is wanted in that jurisdiction due to the circumstances later referred to (para. 15 infra). On the 9th July, 2015, the High Court made two orders pursuant to section 16(1) of the European Arrest Warrant Act 2003, as amended (‘the 2003 Act’), ordering that the appellant be surrendered as requested. However, Mr Vilkas twice successfully frustrated his surrender to that State by refusing to board the commercial airline flights which were due to take him there.

2

At its core, this appeal raises a single issue relating to the interpretation of various subsections of section 16 of the 2003 Act. As explored in detail later in this judgment, where a requested person has not been surrendered within the time limits firstly prescribed, by that section, due to circumstances beyond the control of the State (meaning a force majeure), it is possible, pursuant to section 16(5)(a), to extend the time for surrender and to fix a new date for that purpose. Simply stated, the net point on this appeal is whether it is possible to so extend the time and fix a new date more than once, or whether instead the extension procedure is confined to a single occasion. The High Court held that it did not have jurisdiction to entertain an application for a second date, and so ‘discharged’ the appellant.

3

The Minister for Justice and Equality (‘the respondent’) appealed that decision to the Court of Appeal, which referred two questions concerning the interpretation of Article 23 of the Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) to the Court of Justice of the European Union (‘the CJEU’). One such question asked whether Article 23 contemplates or allows for the agreement of a new surrender date on more than one occasion. The CJEU answered that question in the affirmative, holding that the provision in question contains no express limitation on more than one renewal of the extension procedure: in so doing it looked to the purpose and goals of the Framework Decision in order to ascertain the meaning of Article 23. Having done so, the Court concluded that it would be contrary to the objectives of that Decision if only one extension period was permissible under that Article.

4

It is common case that one of the intentions of the Oireachtas in enacting section 16 of the 2003 Act was to transpose Article 23 of the Framework Decision. Following receipt of the opinion of the CJEU, the Court of Appeal held that the relevant subsections of section 16 can and should be given an interpretation which conforms with the construction of Article 23 as stated by the Court of Justice. Accordingly, more than one new surrender date could be set, provided of course that the pre-condition therefore, namely the existence of force majeure is made out on each such occasion.

5

The appellant now appeals that finding to this Court and does so on the grounds upon which leave was granted (para. 47 infra). Although he accepts the judgment of the CJEU as binding in respect of the interpretation of Article 23 of the Framework Decision, it is his position that the clear, literal meaning of section 16 of the 2003 Act is that only one extension of the surrender procedure is possible, and that the words used in that provision cannot validly be interpreted as providing for multiple extensions. Needless to say the Minister stands over the decision of the Court of Appeal. This case therefore raises interpretative issues: more accurately, what limits are there to the principle of conforming interpretation, when construing a statute which seeks to transpose an EU Framework Decision. The end point of this appeal is of some considerable significance to the operation of the surrender procedure, in general.

6

As may be apparent, these proceedings have reached this Court via a rather circuitous route involving three hearings before the High Court, an appeal to the Court of Appeal, the preliminary reference to the CJEU and then the subsequent judgment of the Court of Appeal. The case was complicated somewhat further by the fact that another judgment of this Court delivered today also concerns the interpretation of section 16 of the 2003 Act, albeit different subsections thereof: see Minister for Justice and Equality v. Piotr Pawel Skiba (‘Skiba’). That appeal also directly concerns the judgment of the CJEU in this, the Vilkas case. Similar residual issues arose in both appeals and for that reason the Court saw fit to permit the parties in Skiba to make submissions at the hearing of the within appeal. It follows that issues relating to the interpretation of section 16 are determined in both judgments, and to that extent they should be read together for a full understanding of the section. Having said that, the principal issues raised in each case are, for the most part, discrete and separate from each other.

7

Before moving to the background facts and procedural history of the case, it will be helpful to cite, at the outset, the provisions applicable to this appeal.

Legal Framework

Council Framework Decision on the European Arrest Warrant

8

The relevant enactment at EU level is Council Framework Decision of 13 June 2002 on...

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