The Minister for Justice and Equality v Naoufal Fassih

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 18 February 2022
• Neutral Citation: [2022] IESC 10
• Court: Supreme Court
• Docket Number: Record No. 2021/76

In the Matter of an Application Pursuant to S.22(7) of the European Arrest Warrant Act 2003 (As Amended)

Between/

The Minister for Justice and Equality

Respondent

and

Naoufal Fassih

Appellant

[2022] IESC 10

MacMenamin J.

Charleton J.

O'Malley J.

Baker J.

Hogan J.

Record No. 2021/76

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Consent – Imprisonment – Issue estoppel – Dutch authorities seeking consent to the further prosecution and imprisonment of the appellant – Whether issue estoppel was applicable

Facts: The appellant, Mr Fassih, was surrendered to the Kingdom of the Netherlands in 2017, on foot of three European Arrest Warrants (EAWs). He was tried and convicted in respect of the offences to which those warrants related, and sentenced to 18 years imprisonment. The Dutch authorities sought the consent of the High Court of Ireland, in its capacity as the executing judicial authority, to the further prosecution and imprisonment of the appellant on foot of two further charges that were not the subject of any of the original EAWs. The appellant had already been tried, convicted and sentenced to life imprisonment on the new charges, but consent was necessary before the sentence of deprivation of liberty could be executed. The appellant argued that since the public prosecutors who issued the EAWs were not, as a matter of EU law, “judicial authorities” it followed that the Netherlands could not be regarded as the “issuing State” and the requirements of s. 22(7) of the European Arrest Warrant Act 2003, as amended, were therefore not fulfilled. The respondent, the Minister for Justice and Equality, did not dispute the statutory interpretation put forward by the appellant, but contended that any issue there might have been concerning the prosecutors’ competence must be taken as having been definitively determined by the High Court in 2017. She accepted that the decision of the Court of Justice of the European Union (CJEU) must be taken to have retrospective effect, but submitted that the operation of national rules of issue estoppel was not affected by that retrospective effect. It was argued that an estoppel arose in the case such that the issue as to competence could not be reopened. The appellant disputed the applicability of issue estoppel in the circumstances of the case.

Held by the Supreme Court (O'Malley J) that, in terms of domestic law, the extradition process is considered unique due to, amongst other things, the acknowledgement by the courts of the fact that extradition legislation is passed on foot of an agreement between States, by which the State undertakes certain obligations. O’Malley J held that the inquisitorial nature of the proceedings means that the judge-made litigation rules applicable in other contexts do not always apply, or may apply in a different way. She held that the outcome of a case is less dependent on the evidence and arguments raised by the parties, since the judge has an independent power to seek relevant information and to point out omissions. She held that the two processes involved in this case – a request for surrender and a subsequent request for consent – could not, therefore, necessarily be categorised for the purposes of the rules of issue estoppel in quite the same way that other litigation may be. It seemed to her that the legal relationship between the procedures is a matter to be determined by EU law, since the national legislation is aimed at the implementation of the Council Framework Decision of 13th June 2002 and the key concepts involved have been held to be autonomous concepts of EU law. She held that the question was whether the two procedures are so closely linked that a matter necessarily determined for the purposes of a surrender order must be taken as having been determined for the purposes of any subsequent request for waiver of the rule of specialty, or whether they are separate and “stand alone” procedures.

O'Malley J held that it was necessary for the Court to refer certain questions on that issue to the CJEU under Article 267 of the Treaty on the Functioning of the European Union.

Reference to CJEU.

Judgment of Ms. Justice Iseult O'Malley delivered the 18 ^th of February 2022

Introduction

1 The appellant was surrendered to the Kingdom of the Netherlands in 2017, on foot of three European Arrest Warrants. He was tried and convicted in respect of the offences to which those warrants related, and sentenced to 18 years imprisonment. The Dutch authorities have since sought the consent of the High Court of Ireland, in its capacity as the executing judicial authority, to the further prosecution and imprisonment of the appellant on foot of two further charges that were not the subject of any of the original EAWs. The giving of such consent, which involves a waiver of the rule of specialty, is provided for in Article 27 of the Council Framework Decision of 13 ^th June 2002 (“Framework Decision”), implemented in this jurisdiction by s.22(7) of the European Arrest Warrant Act 2003 as amended. The appellant has already been tried, convicted and sentenced to life imprisonment on the new charges, but consent is necessary before the sentence of deprivation of liberty can be executed.

2 The dispute in the case arises from the fact that the 2016 EAWs were issued by public prosecutors (two by the Amsterdam public prosecutor's office and one by a unit of the national prosecutor's office). No objection was raised in the 2017 proceedings concerning the status of those officials under the Framework Decision or the Act. However, subsequent judgments of the Court of Justice of the European Union have made it clear that the public prosecutors of the Netherlands do not have a sufficient degree of independence from the executive to be regarded as “judicial authorities” for the purposes of the Framework Decision. It follows that they do not have that status for the purposes of the Act.

3 The request for consent now before the Court was issued by a judge, but that fact does not resolve the question over the effect of the original EAWs on the statutory consent to waiver of specialty. For the purposes of the s.22(7) procedure, the request must come from the “issuing State”, and the “issuing State” is defined as being the State, the “judicial authority” of which issued the EAW.

4 The appellant argues that since the public prosecutors who issued the EAWs were not, as a matter of EU law, “judicial authorities” it follows that the Netherlands cannot be regarded as the “issuing State” and the requirements of s.22(7) are therefore not fulfilled. The respondent (“the Minister”) does not dispute the statutory interpretation put forward by the appellant, but contends that any issue there might have been concerning the prosecutors' competence must be taken as having been definitively determined by the High Court in 2017. She accepts that the decision of the CJEU must be taken to have retrospective effect, but submits that the operation of national rules of issue estoppel is not affected by that retrospective effect. It is argued that an estoppel arises in this case such that the issue as to competence cannot now be reopened. The appellant disputes the applicability of issue estoppel in the circumstances of the case.

The statutory context

5 A European arrest warrant is defined in the Framework Decision as “ a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”. The “ issuing judicial authority” is “ the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State”. As established in OG and PI (Public Prosecutor's Office in Lűbeck and Zwickau) (C-508/18 and C-82/19PPU) (“ OG and PI”), the concept of an “ issuing judicial authority” is an autonomous concept of EU law.

6 Article 27 of the Framework Decision deals with the rule of specialty as it applies to a person who has been surrendered. It is open to Member States to notify the General Secretariat of the Council that it consents to waiver of the rule. Where that option is not taken, the general rule, subject to the exceptions set out in the Article, is that such a person may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. The exception of relevance to the instant appeal is that referred to in paragraph 3(g) of Article 27, which envisages consent being given by the executing judicial authority. Paragraph 4 provides that a request for consent is to be submitted to the executing judicial authority. Consent is to be given, or refused, on the same basis as in a case of an application for surrender – that is, by reference to the grounds set out in Articles 3 and 4.

7 Similar definitions are found in the European Arrest Warrant Act 2003 as amended. An EAW is “ a warrant, order or decision of a judicial authority”. A “ judicial authority” is “ the judge, magistrate or other person authorised under the law of the Member State concerned to perform functions the same or similar to those performed under s.33 by a court in the State” (that is, the function of issuing EAWs). The “ issuing judicial authority” is “ the judicial authority in the issuing State that issued the relevant warrant concerned.” The “ issuing state” is “ a Member State…a judicial authority of which has issued that European arrest warrant”.

8 Section 22 of the Act of 2003 was replaced in its entirety by virtue of s.80 of the Criminal Justice (Terrorist Offences) Act 2005. Section 22(7) now provides:

(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent...