The Minister for Justice, Equality and Law Reform v Altaravicius

• Jurisdiction: Ireland
• Judge: Denham J.,Murray C.J.
• Judgment Date: 05 April 2006
• Neutral Citation: [2006] IESC 23
• Date: 05 April 2006
• Court: Supreme Court
• Docket Number: [S.C. No.

MIN FOR JUSTICE v ALTARAVICIUS

BETWEEN

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

PLAINTIFF / APPELLANT

-v-

VALDEMARAS ALTARAVICIUS

DEFENDANT / RESPONDENT

[2006] IESC 23

Murray C.J.

Denham J.

Hardiman J.

446/05

SUPREME COURT

EXTRADITION:

European arrest warrant

Domestic warrant - Production of domestic warrant underlying European arrest warrant - Whether respondent entitled to domestic warrant - Fair procedure - Presumption that issuing state complied with Framework Decision - Whether presumption entitled respondent to copy of domestic warrant - Minister for Justice v Fallon [2005] IEHC 321 (Unrep, Finlay Geoghegan J, 9/7/2005) distinguished; Wyatt v McLoughlin [1974] IR 378 and Ellis v O'Dea (No 2) [1991] IR 251 approved - European Arrest Warrant Act 2003(No 45), ss 4A, 10, 11(1), 11(1A) and 20 - Framework Decision 2002/584/JHA, art 8 - Appeal allowed, matter remitted to HC (446/2005 - SC - 5/4/2006) [2006] IESC 23, [2006] 3 IR 148; [2006] 2 ILRM 241 Minister for Justice, Equality and Law Reform v Altaravicius

RSC (EUROPEAN ARREST WARRANT ACT 2003 & EXTRADITION ACTS 1965 TO 2001) 2005 SI 23/2005

EUROPEAN ARREST WARRANT ACT 2003 S4A

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S69

EUROPEAN ARREST WARRANT ACT 2003 S11(a)

EUROPEAN ARREST WARRANT ACT 2003 S10

MIN FOR JUSTICE v FALLON AKA O FALLUIN UNREP HIGH COURT FINLAY GEOGHEGAN J 9.9.2005 2005/38/7997

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 34(2)(b)

EUROPEAN ARREST WARRANT ACT 2003 S9

EUROPEAN ARREST WARRANT ACT 2003 S11(1)(a)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S2(a)

TREATY OF AMSTERDAM 1997

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

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 35.1

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 35.2

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 8.1

BRADY v DISTRICT COURT JUDGE HAUGHTON & ORS UNREP SUPREME 29.7.2005 2005/5/958

ELLIS v O'DEA 1991 1 IR 251 1991 ILRM 346

WYATT v MCLOUGHLIN 1974 IR 378

EUROPEAN ARREST WARRANT ACT 2003 S16(1)(e)

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72(a)

1 JUDGMENT delivered the 5th day of April, 2006 by Murray C.J.

2 This is an appeal by the Minister for Justice, Equality and Law Reform against an Order of the High Court made on the 29th November, 2005 directing the production of a copy of a domestic warrant underlying a European Arrest Warrant which was issued in Lithuania for the surrender of the respondent pursuant to the provisions of the European Arrest Warrant Act, 2003 for the purpose of requiring him to stand trial on a charge of robbery.

3 I should explain at this point what the underlying "domestic warrant" refers to. When a European Arrest Warrant has been issued by a designated judicial authority of a Member State of the European Union it is usually, if not invariably, on the basis that there is already in existence in that country a warrant for that person's arrest for the purpose of prosecution on criminal charges or an Order for his or her custodial detention or imprisonment. Both the Act of 2003 and the Framework Decision provide for reference to be made to such an underlying domestic arrest warrant in the form specified for the European Arrest Warrant.

4 The European Arrest Warrant Act, 2003 has been extensively amended, in particular by the substitution of new sections and subsections, by the Criminal Justice (Terrorist Offences) Act, 2005. References to the Act of 2003 may be taken as references to that Act as amended unless stated otherwise.

5 The "Framework Decision" is the Council Framework Decision of 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA).

Background

6 On the 15th April, 2005 the respondent was arrested by Sergeant Martin O'Neill on foot of a European Arrest Warrant issued by a judicial authority in Lithuania dated 30th December, 2004. It had been endorsed for execution pursuant to Order of the High Court dated 8th April, 2005. Sergeant O'Neill brought the respondent before the High Court on the 15th April, 2005 and gave evidence of having executed the European Arrest Warrant and arrested the respondent. The respondent was released on bail pending a hearing pursuant to s. 16 of the Act of 2003.

7 The respondent subsequently served points of objection setting out the grounds upon which he was resisting the application for his surrender to Lithuania on foot of the European Arrest Warrant. The objection was couched in the most general terms namely:

"The European Arrest Warrant requesting the arrest and surrender of the respondent, Valdemaras Altarvicius, is not in accordance with law and is unlawful, void and of no legal effect."

8 That could hardly be considered a statement, even in summary form, of grounds. There is no indication whatsoever of why it is alleged the warrant is not in accordance with law. Neither does it refer to any material fact relied upon, if any. Such details are required by Rule 5 of Order 98 of the Rules of the Superior Courts ( S.I. 23/2005).

9 It is common case that the respondent sought and obtained a number of adjournments of the hearing to be held pursuant to s. 16 of the Act in order to obtain the advice of an expert in Lithuanian law, the last of such adjournments being on the 20th June, 2005. On 20th July, 2005 the respondent filed a notice challenging the constitutionality of a large number of the provisions of the Act of 2003 and on 11th October, 2005 the hearing of the s. 16 application was fixed for 27th October, 2005.

10 By letter dated 25th October, 2005 the respondent, through his solicitors, wrote to the appellant's solicitors seeking a copy of an arrest warrant of 8th February, 2002 issued by a District Court in Lithuania. No reason was given as why the copy warrant was considered relevant. This Lithuanian District Court arrest warrant was referred to in the European Arrest Warrant and is the so called underlying domestic warrant. The letter also stated that in the event of that District Court warrant not being made available to the respondent an application would be made to the High Court at the hearing of the s. 16 application for an Order directing discovery of the document.

11 This is what occurred when the matter came on for hearing before the High Court on 27th October, 2005. In summary what the respondent contended before the High Court was that discovery of the domestic warrant in question was required so as to enable the respondent to satisfy himself or at least consider whether the European Arrest Warrant is consistent with it. There could be, it was submitted, an issue of an inconsistency or lack of correspondence between the underlying warrant and the recitals on the face of the European Arrest Warrant. Insofar as s. 4A of the Act of 2003, as inserted by s. 69 of the Criminal Justice (Terrorist Offences) Act, 2005 provided for a presumption that an issuing State will comply with the requirements of the Framework Decision he wished to be in a position to consider whether that presumption could be rebutted. It was also submitted that since the onus is placed upon the respondent to dislodge that presumption he was entitled, as a matter of fair procedures, to see a copy of the domestic warrant in question in order to consider whether the presumption could be rebutted.

The High Court decision

12 The Order of the High Court directed that the Domestic Warrant be furnished to the respondent in this case.

13 It is important to emphasise that the decision of the learned High Court Judge did not stem from any fact or circumstance peculiar to this particular application other than the request for a copy of the domestic warrant.

14 In his judgment he stated that the considerations which led him to make this Order in this case "are likely to apply in all cases" concerning an application to give effect to a European Arrest Warrant. In his judgment he concluded:

"... it would seem to follow that in each case a copy of the underlying Domestic Warrant should either accompany the European Arrest Warrant or at least be available to the respondent and to the Court in sufficient time prior to the hearing of the application for the Order for Surrender. If that is done, it will obviate the need for an application for discovery. It is the case also, if I am correct about the Court's duty to ensure that the European Arrest Warrant is "duly" issued, then even if the respondent fails to satisfy the Court of the relevance and necessity for the production of the Domestic Warrant for the purpose of any issued raised by him by way of Points of Objection, his natural justice right to a copy of same would nevertheless be difficult to overlook."

15 Accordingly he went on to make the Order not, as he put it:

"... on the basis of a discovery application, but on the basis that a copy of the warrant is something to which the respondent is entitled, should he express a wish to be provided with same."

16 There were a number of considerations which the learned High Court Judge took into account in making his Order. He placed some emphasis on the use of the word "evidence" rather than "details" in paragraph (c) of Article 8.1 which refers to the Arrest Warrant setting out "evidence" of an enforceable judgment coming within the scope of Articles 1 and 2 of the Framework Decision that is, the domestic warrant. He did not consider that the provisions of s. 11(A) of the Act of 2003 as amended by the 2005 Act affected these considerations simply because it did not use the word "evidence" and merely required that the European Arrest Warrant should specify the domestic warrant issued in the requesting...