The Minister for Justice and Equality v Petronel Pal

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 20 April 2020
• Neutral Citation: [2020] IEHC 202
• Date: 20 April 2020
• Docket Number: [No. 128 EXT. 2019]
• Year: 2020
• Court: High Court

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 (AS AMENDED)

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

PETRONEL PAL

RESPONDENT

[2020] IEHC 202

McDermott J.

[No. 128 EXT. 2019]

THE HIGH COURT

European arrest warrant – Certification of points of law – European Arrest Warrant Act 2003 s. 16(11) – Applicant seeking certification of points of law – Whether it was desirable in the public interest that an appeal be taken under s. 16(11) of the European Arrest Warrant Act 2003

Facts: The High Court (McDermott J) ruled on whether to certify the following questions for the purpose of an appeal by the respondent, Mr Pal, pursuant to s. 16(11) of the European Arrest Warrant Act 2003: (1) What factual circumstances, if reversed, should the High Court take account of for the purpose of considering whether there is reciprocity for the purpose of s. 44 of the 2003 Act? (2) Is the fact that the law of the issuing state asserts extra-territorial jurisdiction on a similar basis to Ireland of relevance for the purpose of s. 44? (3) In circumstances where a specific and precise risk of a breach of Article 3 of the Convention has been established, is it permissible to surrender a requested person in the absence of a specific and precise undertaking that he will not be exposed to such a risk? (4) In circumstances where a specific and precise risk of a breach of Article 3 has been established, is it permissible for the executing judicial authority to infer the terms of an undertaking in respect of such a risk where the issuing judicial authority has refused to provide a specific and precise undertaking concerning such a risk? The respondent submitted that there is uncertainty as to the law regarding s. 44. The respondent also submitted that in circumstances where a specific and precise risk of a breach of Article 3 has been established, there is uncertainty as to whether it is permissible for the court to surrender a requested person where the undertaking provided is not specific and precise. Furthermore, the respondent submitted that there is uncertainty as to whether the court can infer from the terms of such an undertaking when the issuing judicial authority has refused to provide a specific and precise undertaking concerning such a risk.

Held by McDermott J that, having taken the wide view appropriate to such applications as articulated by Murray J in Minister for Justice and Equality v Tokarski [2012] IESC 61, he was disposed to certify that the court’s decision in respect of the matters set out in questions 1 and 2 were points of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken under s. 16(11).

McDermott J held that he was not satisfied that any of the grounds required by s. 16(11) for the certification of a point of law by way of appeal had been satisfied in respect of questions 3 and 4.

Questions 1 and 2 certified.

JUDGMENT of Mr. Justice McDermott delivered on the 20th day of April 2020

1 This is a ruling on whether to certify the following questions for the purpose of an appeal by the respondent pursuant to section 16(11):

(1) What factual circumstances, if reversed, should the High Court take account of for the purpose of considering whether there is reciprocity for the purpose of section 44 of the European Arrest Warrant Act, 2003?

(2) Is the fact that the law of the issuing state asserts extra-territorial jurisdiction on a similar basis to Ireland of relevance for the purpose of section 44?

(3) In circumstances where a specific and precise risk of a breach of Article 3 has been established, is it permissible to surrender a requested person in the absence of a specific and precise undertaking that he will not be exposed to such a risk?

(4) In circumstances where a specific and precise risk of a breach of Article 3 has been established, is it permissible for the executing judicial authority to infer the terms of an undertaking in respect of such a risk where the issuing judicial authority has refused to provide a specific and precise undertaking concerning such a risk?

Certification Applications

2 Section 16(11) of the European Arrest Warrant Act, 2003 provides:

“(11) An appeal against an order under subsection ( 1) or (2) or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

The section must now be interpreted in accordance with s. 75 of the Court of Appeal Act 2014.

3 The correct approach to be followed for certification applications was described by Edwards J in Minister for Justice v. Kasprowicz [2013] IEHC 531 as follows:

“The general approach to be taken is that identified by Clarke J. in Arklow Holidays v. An Bord Pleanala [2007] 4 I.R. 112 as being appropriate in considering, as in that case, whether to grant leave to appeal a decision of the High Court to the Supreme Court under s. 50(4) (f) of the Planning and Development Act,, but also bearing in mind the remarks of Murray J. (nem diss) in the Supreme Court in Minister for Justice and Equality v. Tokarski [2012] IESC 61 (Unreported, Supreme Court, 6th December, 2012) concerning particular considerations that arise under s. 16(11) of the Act of 2003 that do not arise in some other areas of the law where there are similar restrictions on an appeal, such as in asylum and planning and development law, and which therefore create the imperative for a broad approach to the interpretation of that provision.”

4 The general approach identified in Arklow Holidays Ltd v. An Bord Pleanala [2007] 4 IR 112, was set out by Clarke J at para 4 as follows:

“(i) there must be an uncertainty as to the law in respect of a point which has to be of exceptional importance; see for example Lancefort v. An Bord Pleanála [1998] 2 I.R. 511;

(ii) the importance of the point must be public in nature and must, therefore, transcend well beyond the individual facts and parties of a given case; see Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704. It is the case that every point of law arising in every case is a point of law of importance; see Fallon v. An Bord Pleanála [1992] 2 I.R. 380. That, of itself, is insufficient for the point of law concerned to be properly described as of “exceptional public importance”;

(iii) the requirement that the court be satisfied “that it is desirable in the public interest that an appeal should be taken to the Supreme Court” is a separate and independent requirement from the requirement that the point of law be one of exceptional public importance; see Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704. On that basis, even if it can argued that the law in a particular area is uncertain, the court may not, on the basis, inter alia, of time or costs, consider that it is appropriate to certify the case for the Supreme Court; see Arklow Holidays Ltd. v. Wicklow County Council [2004] IEHC 75, (Unreported, High Court, Murphy J., 4th February, 2004).”

5 The general approach has been modified to some degree by the observations of Murray J in Minister for Justice and Equality v. Tokarski [2012]...