The Minister for Justice and Equality v Naoufal Fassih

• Jurisdiction: Ireland
• Judge: Gearty J,Mr Justice Edwards,Birmingham P
• Judgment Date: 27 May 2021
• Neutral Citation: [2021] IECA 159
• Docket Number: Record No: 2019 No 262 EXT
• Date: 27 May 2021
• Court: Court of Appeal (Ireland)

In the Matter of an Application Pursuant to S. 22(7) of the European Arrest Warrant Act, 2003, as Substituted by S. 80 of the Criminal Justice (Terrorist Offences) Act, 2005

The Minister for Justice and Equality

Respondent

and

Naoufal Fassih

Appellant

[2021] IECA 159

Birmingham P.

Edwards J.

Gearty J.

Record No: 2019 No 262 EXT

COA: 2020/162

THE COURT OF APPEAL

Waiver – Consent – European Arrest Warrant Act 2003 s. 22(7) – Appellant appealing against the judgment and order of the High Court granting the requested waiver and consent pursuant to s. 22(7) of the European Arrest Warrant Act 2003 – Whether there was patent ambiguity on the face of the documentation

Facts: The appellant, Mr Fassih, was previously surrendered by the State to the kingdom of the Netherlands for prosecution in respect of various offences on foot of three European arrest warrants, dated the 21st of April, 2016, the 14th of July, 2016, and the 26th of September, 2016, respectively (the 2016 EAWs). The executing judicial authority that made those surrender orders was the High Court (Donnelly J). The appellant was convicted following a trial upon his return to the Netherlands and was sentenced in April 2018 to a total of eighteen years’ imprisonment. Subsequently, in August 2019, a request was received by the Irish High Court for waiver of the rule of specialty and consent to the further criminal prosecution or execution of a custodial sentence or detention order in respect of the appellant in the kingdom of the Netherlands for the further offence specified in a document described as a “new additional European arrest warrant”, and dated the 18th of July, 2019, which accompanied the said request. The appellant appealed to the Court of Appeal against the judgment and order of the High Court (Binchy J) of the 27th of July, 2020, granting the requested waiver and consent pursuant to s. 22(7) of the European Arrest Warrant Act 2003. In the appellant’s written submissions, he raised again the objection to the form of the s. 22(7) request. The written submissions complained about what was characterized as “patent ambiguity on the face of the documentation”. Arguments concerning whether, for the purposes of s. 27(7), the appellant was “a person who has been surrendered to an issuing state under this Act”, were reprised both in the appellant’s written submissions and at the appeal hearing, as were arguments in relation to res judicata, and the application of domestic procedural rules on finality of judgments in the circumstances of the case.

Held by Edwards J that he had no hesitation in rejecting any suggestion of ambiguity and in dismissing the objection to the form of the s. 22(7) request. Edwards J was persuaded by the respondent’s arguments, reflected in the judgment of the trial judge, that the s. 22(7) application was not to be regarded as a “stand alone” application, divorced in reality from the decision of Donnelly J to surrender the appellant on foot of the 2016 EAWs. Edwards J was satisfied that the submissions made on behalf of the respondent concerning the res judicata objection were correct; the relationship between this application and the proceedings in which the appellant was surrendered to the Netherlands on foot of the 2016 EAWs was a nuanced one, and it was not appropriate to present it in the starkly disconnected way that the appellant sought to do. In Edwards J’s view the jurisprudence required the application of domestic procedural rules on finality of judgments in the circumstances of this case. Edwards J considered that no sufficiently good reason for not doing so had been advanced.

Edwards J held that, in circumstances where he had not been persuaded that there was merit in any of the appellant’s grounds of appeal, he would dismiss the appeal.

Appeal dismissed.

JUDGMENT delivered by Mr Justice Edwards on the 27th of May, 2021.

Background to the appeal

1 The appellant is a person who was previously surrendered by this State to the kingdom of the Netherlands for prosecution in respect of various offences on foot of three European arrest warrants, dated the 21st of April, 2016, the 14th of July, 2016, and the 26th of September, 2016, respectively, (“the 2016 EAWs”). The executing judicial authority that made these surrender orders was the High Court (Donnelly J.). The offences to which the 2016 EAWs related involved money laundering offences, assault and attempted murder. The appellant was convicted following a trial upon his return to the Netherlands and was sentenced in April 2018 to a total of eighteen years' imprisonment.

2 Subsequently, in August 2019, a request was received by the Irish High Court for waiver of the rule of specialty and consent to the further criminal prosecution or execution of a custodial sentence or detention order in respect of the appellant in the kingdom of the Netherlands for the further offence specified in a document described as a “ new additional European arrest warrant”, and dated the 18th of July, 2019, which accompanied the said request. Provision is made for the making of such a request in Article 27(4) of Council Framework Decision 2002/584/JHA on the European Arrest Warrant and the Surrender Procedures between Member States (“the Framework Decision”), which has been transposed into Irish domestic law by s. 22(7) of the European Arrest Warrant Act, 2003 (“the Act of 2003”) as substituted by s. 80 of the Criminal Justice (Terrorist Offences) Act, 2005.

3 It appears from the s. 22(7) request that the further offence is one in respect of which Article 2.2 of the Framework Decision is invoked, on the basis of a certification by the issuing judicial authority that it qualifies as murder/grievous bodily harm in the Article 2.2 list.

4 It requires to be noted that the appellant has already been tried, convicted and sentenced in the Netherlands for the said further offence, and has received a sentence of life imprisonment. Be that as it may, in light of the decision of the CJEU in Case C-388/08 Leymann & Pustovarov [2008] E.C.R. I-8983 the appellant raises no issue in relation to the fact that the Dutch authorities have already proceeded to conviction in respect of the offence the subject matter of the s. 22(7) request. At paragraph 76 of the judgment in Leymann & Pustovarov, the CJEU had observed:

““…the exception in Article 27 (3) (c) of the Framework Decision, must be interpreted as meaning that, where there is an ‘offence other’ than that for which the person was surrendered, consent must be requested, in accordance with Article 27 (4) of the Framework Decision, and obtained if a penalty or a measure involving the deprivation of liberty is to be executed. The person surrendered can be prosecuted and sentenced for such an offence before that consent has been obtained, provided that no measure restricting liberty is applied during the prosecution or when judgment is given for that offence…”.

The effect of paragraph 76 of the judgment in Leymann & Pustovarov was noted previously in Minister for Justice and Equality v Sliwa, both in the judgment of the High Court, [2016] IEHC 185, and in that of this Court, [2016] IECA 130.

5 The case before us involves an appeal against the judgment and Order of the High Court (Binchy J.) of the 27th of July, 2020, granting the requested waiver and consent pursuant to s. 22(7) of the Act of 2003.

6 The document described as a “ new additional European arrest warrant”, and dated the 18th of July, 2019, was not an actual European arrest warrant (“EAW”), but rather was the presentation of information concerning the further offence in respect of which consent was sought in the form of a European arrest warrant. The Points Of Objection filed on behalf of the respondent at first instance (i.e., the present appellant) had included an objection to the form of the s. 22(7) request on the basis that it had been characterised as being a “ European arrest warrant” when it was no such thing.

7 The High Court had previously ruled in two other cases, i.e., Minister for Justice and Equality v Trepiak [2011] IEHC 287 and Minister for Justice and Equality v Zymslowski [2011] IEHC 286, respectively, in which the same expedient had been employed, that to use the form of an EAW for making a s. 22(7) request was unobjectionable. In circumstances where it was recognised that the High Court in this case was prima facie bound to follow the decisions in those earlier cases, the objection was given what might be colloquially described as “ a light rub” and was not pressed in submissions, although it was made clear it was not being abandoned.

8 However, it gained no traction with the High Court judge who observed that it was logical to use the expedient of presenting information about an offence the subject matter of a request for consent under s. 22(7) of the Act of 2003 in the same format as would be used for the issuance of an EAW, in circumstances where Article 27(4) of the Framework Decision specifies that a request for such consent “ shall be submitted to the executing judicial authority accompanied by the information mentioned in Article 8(1)”, and where Article 8(1) of the Framework Decision, reflected in s. 11 of the Act of 2003, prescribes the information that must be contained in a European arrest warrant.

9 In the interval between the surrender of the appellant on foot of the 2016 EAWs, and receipt of the request for consent the granting of which is the subject matter of this appeal, there was an important development in European arrest warrant law. As outlined in paragraph 3 of the judgment of the High Court, [2020] IEHC 369, the Court of Justice of the European Union (“CJEU”) handed down judgment on the 27th of May, 2019, in the conjoined cases of O.G. (C-508/18) and P.I. (C-82/19 PPU). The O.G. and P.I. cases were specifically concerned with whether the Public Prosecutor's office...