19
THE SUPREME COURT
[S.C. No. 171 of 2005] Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
Between/
Kenneth Dundon Applicant/Appellant and
Governor of Cloverhill Prison Respondent and
Minister for Justice, Equality and Law Reform Judgment delivered the 19th day of December 2005 by Denham J.
1. Issues
Time limits under the Council Framework Decision of 13th June 2002, hereinafter referred to as the Council Framework Decision, and the European arrest warrant Act, 2003, hereinafter referred to as the Act of 2003, are the issues arising on this appeal. Kenneth Dundon, the applicant/appellant, hereafter referred to as the applicant, contends that he is in unlawful custody because time limits established under the European arrest warrant scheme have been breached. The appeal is based on the interpretation of two documents, (a) the Council Framework Decision, and (b) the Act of 2003.
2. A change in arrangements
The Council Framework Decision and the Act of 2003 mark a change in extradition arrangements between the States of the European Union. This change had been under consideration prior to the Twin Towers destruction in New York on 9/11. However, as a consequence of 9/11 the process advanced more rapidly in the European Union and culminated in the Council Framework Decision. Subsequently the Act of 2003 was enacted in Ireland. This new scheme represents a development from the system of extradition between the States of the European Union, to a European arrest warrant procedure. The new scheme is representative of the growth, consequent on the 1999 Tampere Summit, of the concept of an Area of freedom, security and justice within the European Union.
3.1 Council Framework Decision
The Council Framework Decision on the European arrest warrant was adopted by the Council of the European Union on the 13th June 2002, under Title VI of the Treaty of the European Union. Title VI in Article 29 states the objective of providing citizens with a high level of safety within an area of freedom, security and justice. The means to obtain this objective include closer cooperation between judicial authorities in the European Union in accordance with the provisions of Article 31, Article 32 and Article 34(2). Article 31 (a) and (b) state:
“Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions; (b) facilitating extradition between Member States;”
Article 34(2) provides:
“The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this Title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:
(a) . . .(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;
. . .”
Thus, the Council Framework Decision does not have direct effect, and is not part of the domestic law of this State. It is binding on the State as to the result to be achieved. It promotes common action by the States of the European Union to advance approximation of the laws in the States on specific issues. It is left to the national authorities to chose the form and method of implementation. While the Council Framework Decision is not per se part of the national law it is useful to consider its terms in some depths as it is the background upon which the Act of 2003 was created and it is referred to in the said Act.
3.2 Recitals
The Recitals of the Council Framework Decision refer to the objectives of the Decision. These indicate an aspiration to simplify procedures, reduce delay and advance judicial co-operation within an area of freedom, security and justice. Thus, for example, the fifth recital states: “The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice”.
Mutual recognition is at the heart of this new process, as the sixth recital provides:
“The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation.”
The high level of confidence between Member States is recognised in the tenth recital:
“The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principle set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.”
The preservation of fundamental rights, and national constitutional rights including due process, is recognised in the twelfth recital: “This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, (in particular Chapter VI thereof). Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons. This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.”
3.3 Time limits provided in Council Framework Decision
The Council Framework Decision refers to time limits. Thus article 17(1) states that:
“A European arrest warrant shall be dealt with and executed as a matter of urgency.”
The use of the word “shall” indicates a mandatory requirement. It is mandated that the matter be dealt with urgently.
Article 17(2) relates to the specific position where a requested person consents to surrender, and so it does not apply to this case. However, its terms are important in considering the new scheme as a whole. It states:
“In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.”
The words “should be” are not the mandatory “shall” of Article 17(1). The difference in the wording means that, while it is not mandatory, these words urge such an approach and recommend strongly that the time limit of 10 days be met.
Article 17(3) relates to the position where a requested person does not consent to surrender, and thus it applies to this type of case It states: “In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person”.
This article continues the use of words of exhortation, in relation to the time limit of 60 days. It urges that the final decision be taken within a period of 60 days after the arrest.
Article 17(4) provides for an extension of the time limit. It states:“Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 and 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.”
This article provides for mandatory notification. It is a requirement made of the executing judicial authority. It refers to one extension of 30 days.
Exceptional circumstances are anticipated in Article 17(7), which provides: “Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.”
It is noteworthy that this article refers to ‘exceptional circumstances’ where a Member State cannot observe the time limits, while it is urged that the time limits be met. The requirement that the Member State should inform Eurojust is clearly a mechanism to encourage compliance with the aspired time limits. Also, the terms of the mandatory requirement of notice to Eurojust anticipates a method of evaluation of the implementation of the Council Framework Decision.
Article 23 relates to time limits for the surrender of the person. Article 23(1) provides that a person shall be surrendered as soon as possible on a date agreed between the authorities. Article 23(2) states that he/she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. However, pursuant to Article 23(3), if the surrender of the requested person within the 10 days is prevented by circumstances beyond the control of the Member State, the executing and issuing judicial authorities shall contact each other immediately and agree a new surrender date; the surrender shall take place within 10 days of the new agreed date. Article 23(4) relates to an exceptional situation and provides that surrender may exceptionally be temporarily postponed for serious humanitarian reasons, e.g., if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The European arrest warrant shall be executed as soon as these grounds have ceased to exist. These sections give a degree of leeway to the authorities in certain circumstances. Article 23(5) provides, however, that upon expiry of the time limits referred to in paragraphs 23(2) and 23(4), if the person is still in custody, he shall be released.
Article 23 relates to the surrender after the “final decision” on the execution of the warrant. Such a decision is made by the Judicial Authority, in Ireland the High Court, or, on appeal, by the Supreme Court. As the final decision on the applicant’s appeal has not been made in this case this article does not apply to the applicant at this stage of the proceedings.
4.1 National Forms and Methods
Council Framework Decisions are not part of the domestic law. The exercise taken previously in construing the Council Framework Decision is, firstly, to further understanding of the document. Secondly, it is a relevant factor in the interpretation of the national law.
Council Framework Decisions are binding on the State as to the result to be achieved, and it is left to the national authorities to choose the form and method of implementation. Member States have implemented this Council Framework Decision. However, the forms and methods used have not been identical. This may be seen from a few examples.
4.2 Belgium
Belgian legislation has prescribed very precise time limits – expressed in days and hours. An unofficial translation of that legislation provides as follows:-Article 16 § 1. Within 15 days of the arrest, the Council Chamber shall rule by a reasoned decision on the execution of the European arrest warrant, on a report of the investigating judge and having heard the King’s prosecutor and the person concerned assisted or represented by his lawyer.
. . .
§5. If the Council Chamber does not rule within the period stipulated in paragraph 1, the investigating judge orders the release of the person, unless the public prosecution service appeals this order within 24 hours before the Court’s indictment division in keeping with Article 17.
Article 17 §1. The person concerned and the public prosecution service can appeal the decision of the Council Chamber before the Court’s indictment division. The appeal must be made within 24 hours, beginning from the day of the decision for the public prosecution service and, for the person concerned, on the day on which it is served to him.
§2. The appeal is made by a declaration to the clerk of the Court of First Instance and is recorded in a register opened for that purpose.
. . .
§4. Within 15 days of the declaration referred to under §2, the Court’s indictment division rules on the appeal by a reasoned decision, having heard the King’s prosecutor and the person concerned assisted or represented by his lawyer. The division shall make the verification stipulated in Article 16 1§ (2) in order to make that ruling.
If no decision is made within that period, the person concerned is released.
§5. The decision on the appeal is communicated to the general prosecutor immediately and is served to the person concerned within 48 hours. The act served contains the notification to the person concerned of his right to appeal in cassation and the period during which this right must be exercised. Article 18 §1. The decision on the appeal can be appealed in cassation by the public prosecution service and by the person concerned within a period of 24 hours, beginning from the day of the decision for the public prosecution service and, for the person concerned, on the day on which it is served to him.
§2. The dossier is transmitted to the clerk of the Cour de Cassation within 24 hours as from the time of the appeal. The arguments in cassation can be described wither in the act of the appeal, or in a written document lodged at that time, or in a memorandum that must reach the registry of the Cour de Cassation on the fifth day after the appeal in cassation at the latest.
§3. The Cour de Cassation rules within 15 days as from the date of appeal in cassation.
§4. After a ruling in cassation with referral, the Court’s indictment division to which the case is referred rules within 15 days as from pronouncement of the Cour de Cassation’s ruling.
§5. If the appeal in cassation is rejected, the decision of the Court’s indictment division on the execution of the European arrest warrant is immediately enforceable.
It appears that in a Belgian case, Cour de Cassation, French Section, 2nd Chamber, 28 December 2004 – No. P.04.1665.F, a defence has been argued that Article 16.1 of the Belgian law implementing the European arrest warrant, which requires the Chambre du Conseil to decide on the execution of the European arrest warrant within 15 days after the arrest, had been violated and that the procedure is thus unlawful. It appears that the non respect of the time limit provided for by Article 16.1 of the Belgian law of 19 December 2003 implementing the European arrest warrant resulted in the requested person’s release, but did not make the execution procedure unlawful.
4.3. Netherlands
Legislation in the Netherlands provides for time limits as follows:
Article 22 (3)
“3. Exceptionally, provided reasons are given to the issuing judicial authority, the court may extend the term of sixty days by a maximum of thirty days.
4. If the court has still given no verdict within the period as per paragraph 3, the court may again extend the term indefinitely, while setting conditions for simultaneous suspension of the detention of the requested person, and notification of the issuing authority”.
Thus while the time limits urged in the Council Framework Decision are followed, with the addition that the court is given a discretion to extend the time.
4.4 United Kingdom
The United Kingdom, in the Extradition Act 2003 (c.41), makes provision for time limits. It also reflects the time limits in the Council Framework Decision, with the addition of power to the judge to extend time in the interests of justice. Section 75 states:
(1) When a person arrested under a warrant issued under section 71 first appears or is brought before the appropriate judge, the judge must fix a date on which the extradition hearing is to begin. (2) The date fixed under subsection (1) must not be later than the end of the permitted period, which is 2 months starting with the date on which the person first appears or is brought before the judge.
(3) If before the date fixed under subsection (1) (or this subsection) a party to the proceedings applies to the judge for a later date to be fixed and the judge believes it to be in the interests of justice to do so, he may fix a later date; and this subsection may apply more than once.
(4) If the extradition hearing does not begin on or before the date fixed under this section and the person applies to the judge to be discharged, the judge must order his discharge”.
Thus while the time limits recommended in the Council Framework Decision are aspired to, the Court is given jurisdiction to extend the time limits in the interests of justice.
The complexities of a single European arrest warrant scheme in the Member States, albeit that they are purporting to implement the Council Framework Decision, are manifestly obvious. Each Member State has taken steps to implement the European arrest warrant, but in different ways. The Constitutions of Member States are relevant and determinative in some instances on issues relevant to the European arrest warrant.
5. Ireland
In Ireland the Act of 2003 was enacted to implement the obligations arising from the State’s agreement to the Council Framework Decision. It is specifically stated in the long title that it is an Act to give effect to the Council Framework Decision and surrender procedures between Member States, to amend the Extradition Act, 1965 and certain other enactments, and to provide for connected matters. The Act of 2003 came into operation on the 1st January 2004.
Part 2 provides for the European arrest warrant. Specific references to the Council Framework Decision are made. Thus, pursuant to s. 9, for the purposes of a Framework Decision, the High Court shall be the executing judicial authority in the State. Section 10 provides, inter alia, that where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person that person shall, subject to and in accordance with the provisions of the Act of 2003 and the Council Framework Decision, be arrested and surrendered to the issuing state. A European arrest warrant shall, as far as is practicable, be in the form set out in the Annex to the Framework Decision and s. 11(1) sets out what shall be specified. Section 12 relates the transmission arrangements. Section 14 makes provision for arrest without a warrant on the grounds of urgency and is not relevant to this case. Section 15 makes provision for the situation when a person consents to a surrender, and is not relevant to this case.
Section 16 of the Act of 2003 provides that where a person has not consented to his surrender, as in this case, the High Court may, on such date as is fixed under s.13, make an order that such person be surrendered to such other person as is duly authorised by the issuing State to receive him/her, provided that, inter alia: “(a) The High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(b) The European arrest warrant, or a facsimile or true copy, has been endorsed in accordance with s.13 for execution of the warrant;(c) Such undertakings as are required are provided to the court;(d) The surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).
Section 13 provides for the bringing of a person before the High Court and the fixing of a date. The High Court may remand the person in custody or on bail, and under s. 13(5): “(b) fix a date for the purpose of Section 16 (being a date that falls not later than 21 days after the date of the person’s arrest),”
Section 16 provides for the making of a surrender order. “16.—(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that—
(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,
(c) such undertakings as are required under this Act, or facsimile or true copies thereof, are provided to the court.
(d) the surrender of the person is not prohibited by section 22, 23 or 24,
and
(e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).
. . .
This is the order for surrender – but it does not take effect for a further 15 days: s.16 (3) and (4).
A person shall be surrendered not later than 10 days after this time, subject to his right to make a complaint under subsection (6), or on humanitarian grounds under s.18: Section 16(5) and section 16(6). See subsection (5) and (6). However, once the time limit of 10 days has passed, and none of the exceptions apply, the person who is not surrendered shall be released. These subsections, relating to time limits after the final order, provide for mandatory release, but they do not apply in this case as no final order has been made.
The Act of 2003 does not establish mandatory time limits prior to the final order for surrender in the same way as it does to the period after the final order. Sections 16(10) and (11) state: “(10) If the High Court has not, after the expiration of 60 days from the arrest of the person concerned under section 13 or 14, made an order under this section or section 15, or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefore specified in the direction, and the Central Authority in the State shall comply with such direction.
(11) If the High Court has not, after the expiration of 90 days from the arrest of the person concerned under section 13 or 14, made an order under this section or section 15, or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reason therefore specified in the direction, and the Central Authority in the State shall comply with such direction.”
Thus the Act of 2003 makes it mandatory that after 60 days from the arrest the High Court shall direct the Central Authority to inform the issuing judicial authority and, where appropriate Eurojust, and that the Central Authority shall comply. This is a mandatory requirement of notice. There is no provision for release. The section does not give to an individual person the right to be released.
6. Relationship between Council Framework Decisions and the National Law.
The relationship between Council Framework Decisions and the national law was considered in Pupino C-105/03, in a judgment of the Court (Grand Chamber) of 16 June 2005. This decision related to a different Framework Decision, but the principle is the same. The court held at paragraph 43: “43. In light of all the above considerations, the Court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording of the purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b)EU”.
It was remarked, however,
“44. It should be noted, however, that the obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law is limited by general principles of law, particularly those of legal certainty and non-retroactively.”
It was further pointed out in paragraph 47:
“47. The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”
Thus the national court when applying the national law should do so as far as possible in light of the Council Framework Decision, to attain the result sought. This can not be done if it is contrary to the national law, but the national court should consider the whole of the national law to see if it can be applied so as not to produce a result contrary to the Council Framework Decision.
7. Facts
The facts of this case are as follows. On the 29th January 2004 a European arrest warrant was issued by Thames Magistrates Court in England by which the requesting State sought the arrest and surrender of the applicant for the purposes of conducting a criminal prosecution for the offence of murder. On the 2nd February 2004 the European arrest warrant was endorsed for execution by the High Court in Dublin. On the 11th February 2004 the applicant was arrested in Limerick. On the 11th February 2004 the applicant was brought before the High Court and remanded in custody pursuant to s. 13(5) of the Act of 2003, to the 27th February 2004, being the date fixed for the purposes of s. 16. On the 27th February 2004 the application under s. 16 was opened and adjourned, and the applicant was remanded in custody to the 12th March 2004. On the 12th March 2004 the application was adjourned to the 18th March 2004 and the applicant was remanded in custody. On the 18th March 2004 the application was adjourned to the 25th March 2004 and the applicant was remanded in custody. On the 18th March 2004 a certificate was issued by District Justice Frances J. McIvor of the Thames Magistrate Court in England relating to undertakings. On the 25th March 2004 a resumed hearing date was fixed and the applicant was remanded in custody. On the 14th May 2004 the High Court gave a reserved judgment (O’Caoimh J.) ordering that the applicant be surrendered. The applicant appealed to the Supreme Court. On the 24th February 2004 the applicant’s appeal was heard by the Supreme Court. On the 16th March 2005 the Supreme Court gave judgment and upheld the High Court order. On the 14th May the applicant brought further proceedings relating to the lawfulness of his detention. On the 5th day of May 2005 the High Court held that the applicant was detained in accordance with law, the High Court (O’Sullivan J.) having delivered a reserved judgment in the matter on 3rd May, 2005.
8. Judgment of the High Court
O’Sullivan J. held, inter alia at p.14: “Bearing the foregoing in mind I approach the interpretation of the Framework Decision on the basis that while a European arrest warrant must be dealt with as a matter of urgency there is nonetheless in the Framework Decision itself an acknowledgment that the fundamental rights of a requested person which include a right to challenge the legal validity of the process must be respected (to use the word in recital 12) notwithstanding that this might cause delay in an instant case.
It is noteworthy that Article 23 which deals with time limits for the surrender of the person concerned after the final decision on the execution of the European arrest warrant has been made, does provide for his release if he is still being held in custody beyond the short time limits specified (save in exceptional circumstances which are identified). Such a requirement for release is notably absent from Article 17 which deals with time limits and procedures before the making of the final decision.
My conclusion is that the parties to the Framework Decision included the time limits before the final decision to express their determination that the extradition process would be speedy and that the Member States would be kept aware of each other’s standard of performance in this context. The time limits specified for surrender after the final decision are in a different category, namely, they are mandatory in principle with the result that the requested person is intended to be released if they are not complied with.”
9. Grounds of Appeal
On the 6th May 2005 the applicant appealed to this Court submitting that:(i) The High Court erred in law and in fact in determining that the applicant was in lawful custody and so erred in failing to order his release. (ii) The High Court erred in its interpretation of the Act of 2003 and the Council Framework Decision.
(iii) The High Court erred in its conclusion that where a decision on surrender has not been taken within the stipulated time limits the detention of the applicant continued to be lawful in the absence of an express provision requiring his release.
(iv) The High Court erred in requiring that a provision for a persons release should be spelled out clearly and unambiguously rather than requiring that a provision for his continued detention should be so spelled out.
(v) The High Court erred, while acknowledging the express respect afforded by the Council Framework Decision to the fundamental rights of arrested persons, in that it failed to have due regard to the right to liberty.
(vi) The High Court failed to interpret properly the Act of 2003 and the Council Framework Decision and in particular erred in failing to draw a reasonable interpretation that a failure to have a decision within the stipulated time limits caused the requests to lapse.
(vii) The High Court erred in law in failing to interpret the statute in a manner favourable to the applicant against whom a penal statute was involved.
The appeal was heard on the 26th July 2005. Additional documents were sought, together with further submissions. These were furnished to the Court on the 4th October 2005, when judgment was reserved.
10. Decision
In essence the applicant claims that time limits established under the European arrest warrant scheme have not been met by the judicial authorities in Ireland, and that as a consequence he is not in lawful custody and should be released. However, I am satisfied that this submission must fail and that the decision of the High Court should be affirmed.
The scheme established pursuant to the Council Framework Decision for a European arrest warrant is a new system of surrender of persons across European national boundaries. It is a system which was proposed to simplify and cause less delay than the previous extradition arrangements between the Member States of the European Union.
The Council Framework Decision, as set out previously, mandates that the European arrest warrant be dealt with urgently. This fundamental concept was transposed into the Act of 2003, subject to the precise terms of the Act and the fundamental rights of the applicant.
The Council Framework Decision urged strongly that the decision on the request be made within 60 days, which time limit could be extended for a further 30 days. The Act of 2003 reflects the aspiration that the matter be dealt with in such a time frame by its procedures and by requiring the High Court to direct the Central Authority to inform the issuing judicial authority (and, where appropriate, Eurojust) that an order has not been made within this time frame. A similar mandatory requirement of the High Court exists to direct the Central Authority to inform the issuing judicial authority after a further 30 days.
The Act of 2003 makes provisions aspiring to have the matter dealt with urgently. However, the court has the duty to ensure that there are fair procedures, which encompass all issues going to due process. This includes such issues as enabling time to obtain undertakings from the issuing judicial authority, and enabling time to appeal, both of which occurred in this case. Thus, the hearing in the High Court was adjourned to obtain undertakings. And, subsequently, the applicant took proceedings in the High Court and on appeal to this Court. Thus the rights of the applicant have been preserved, but the aspired to time limits have been exceeded.
In this there is no conflict between the Council Framework Decision and the Act of 2003. The expressed policy of the Council Framework Decision that European arrest warrants be addressed urgently is clearly the policy of the Act of 2003. The exhortation in the Council Framework Decision of time limits of 60 days and a further 30 days up to the making of the surrender order is a strongly worded recommendation reflected in the Act of 2003, which establishes an appropriate procedure and mandates the giving of notice if such time limits are exceeded. However, the process remains at all times subject to the requirement of fairness and access to the courts, including the right of appeal. There is no mandated time limit of 60 days (or 90 days) prior to the final order. Consequently the applicant is not in unlawful custody.
It is unfortunate that it has not been possible to process the request more expeditiously. However, the applicant has exercised his right of access to the courts fully. The applicant pursued an initial case in the High Court and then an appeal to the Supreme Court. He subsequently brought a further case in the High Court and on appeal to this Court. Thus he has exercised his rights to contest the matter, and to appeal the decision of the High Court, on two occasions.
The issue of the time limit after the final order has not arisen in this case, as the applicant’s appeal has not concluded.
11. Conclusion
For the reasons given I would dismiss the appeal and affirm the order of the High Court.
JUDGMENT of Mr. Justice Geoghegan delivered 19th December 2005
This appeal has thrown up some very serious issues relating to the effectiveness and enforcement of the European arrest warrant. The appeal in point of form is from an order of the High Court (O’Sullivan J.) refusing an application under Article 40.4 of the Constitution, the court having been satisfied that the appellant was detained in accordance with law. In both courts the argument of the appellant has been that a relevant time limit in the procedures under the European Arrest Warrant Act, 2003 has long ago elapsed and that although the Act does not expressly say so, it must automatically follow that the appellant upon expiration of the relevant period is entitled to be released and that that necessary consequence is not in any way removed or diminished by the fact that the expiration of the time limit resulted from proceedings and appeals instigated by the appellant himself. Although the said Act of 2003 contains other time limits and expressly provides for release upon their expiration, no such provision is contained in respect of the particular time limit relevant to this case nor does the Act make clear that a court in dealing with any particular case is bound by such time limit. The obligation to release is claimed to arise by inference in particular having regard to the terms of section 10 of the Act which reads as follows:
“Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person –
(a) Against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates, or
(b) …
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.”
As I will be explaining, the time limit on which the appellant relies is in a particular context contained in the Act and that context is the “Framework Decision” which is defined in the Act as meaning “Council Framework Decision of 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States”. The Irish language and English language versions of the text of the Framework Decision are contained in Part A and Part B respectively of the Schedule to the Act. The logic of the appellant’s heavy reliance on the inclusion of the words “and the Framework Decision” in section 10 must be that if those words had been omitted the legal consequences might be quite different and the argument of the state much stronger. For reasons which will emerge in the course of this judgment, I find myself unimpressed by this line of argument. The difficulties which undoubtedly arise in this case are not caused or at least not primarily caused by any hasty or faulty draftsmanship in relation to the Act of 2003. That Act is not happily drafted but the primary question at issue in this case derives essentially from the Framework Decision itself. The issues relating to the interpretation of the time limit and the consequences of non-compliance in this case could arise in the courts of any member state of the European Union. In my opinion, there is nothing peculiar to either Irish legislation or the Irish courts system which confines the problem to Ireland.
I will now turn to the factual background to this case before resuming any discussion of the legal issues involved. A European arrest warrant against the appellant was issued by a District Judge (Magistrates’ Courts) at Thames Magistrates Court in London on the 29th January, 2004. The warrant requested that the appellant be arrested and surrendered for the purposes of conducting a criminal prosecution, sentencing following conviction or executing a custodial sentence or detention order. The relevant alleged offence was murder. Under the provisions of section 13 of the European Arrest Warrant Act, 2003 “The Central Authority in the State” (defined as the Minister for Justice, Equality and Law Reform) must apply to the High Court for endorsement of the warrant. This was done and the warrant was duly endorsed for execution by the High Court on the 2nd February, 2004. On the 11th February, 2004 the appellant was duly arrested in Limerick and on the same day brought before the High Court in Dublin and remanded in custody pursuant to section 13(5) to the 27th February, 2004 (being the date fixed for the purposes of section 16 of the Act). It is important to pause here and explain these two statutory provisions, in so far as they are relevant to this case. Under the provisions of section 13(5) a person arrested under a European arrest warrant shall as soon as may be after his or her arrest be brought before the High Court and the High Court if satisfied as to identity must remand the person arrested either in custody or on bail, must fix a date “for the purpose of section 16 (being a date that falls not later than twenty-one days after the date of the person’s arrest)” and must then inform the arrested person of certain rights which are set out in the subsection. To understand the significance of the reference to section 16, I think it useful to cite at this stage the opening words of subsection (1) of that section. These read as follows:
“(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that –
… … … … … … … … … … … … …”
The subsection then sets out five conditions including a condition that “the surrender of the person is not prohibited by Part III or the Framework Decision (including the recitals thereto).” The important point which I want to signpost at this stage is that “a date for the purpose of section 16” as provided for in section 13 is not just a date of hearing. It is a date of decision. Section 16(1) expressly contemplates that on the actual date fixed under section 13 the High Court makes the order directing that the person be surrendered etc.
Returning to the chronology, no decision was in fact made on the 27th February, 2004, the date fixed for the purposes of section 16. Instead the application was adjourned to the 12th March, 2004, was further adjourned on that date to the 18th March, 2004, was again adjourned on the 18th March to the 25th March, 2004 and finally, on that date was yet again adjourned to the 7th May, 2004. The orders made on each of these dates included continuing orders for remand in custody. Apparently, the reason for the several adjournments was because certain undertakings required by the Act were not before the High Court. These undertakings were certified and transmitted from Thames Magistrates Court on the 18th March, 2004. Arguments were made on behalf of the appellant that these undertakings did not comply with the Act and at that time the High Court (Ó Caoimh J.) having heard the submissions, reserved judgment until the 14th May, 2004 while at the same time continuing the remand in custody. On the 14th May, 2004 the High Court decided that the undertakings did comply with the Act and the surrender of the appellant under section 16 was duly ordered. The appellant was again remanded in custody.
The appellant appealed that decision but on the 16th March, 2005 the Supreme Court dismissed the appeal and affirmed the order of the High Court. On the same day an application was made to the High Court (O’Sullivan J.) for this inquiry under Article 40. In his reserved judgment in the High Court, O’Sullivan J. mentions that counsel had informed him that mention was made in the course of the hearing before the Supreme Court that a further legal challenge would be mounted in relation to time limits and that it was indicated by the Supreme Court that that was a matter for another day. Accordingly, that issue had to be considered de novo before O’Sullivan J.
As I have already indicated at the beginning of this judgment, the appellant at this stage was arguing before the High Court that a relevant and definitive time limit had expired and, that that being so, the appellant was automatically entitled to be released. The alleged time limit relied on was a time limit of sixty days from the arrest of the person concerned under section 13. For a proper understanding of this submission it is important that I, at this stage, cite section 16(10) and (11) which respectively read as follows:
“(10) If the High Court has not, after the expiration of sixty days from the arrest of the person concerned under section 13 … made an order under this section … or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefor, specified in the direction, and the Central Authority in the State shall comply with such direction.
(11) If the High Court has not, after the expiration of 90 days from the arrest of the person concerned under section 13 … made an order under this section … or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefor specified in the direction, and the Central Authority in the State shall comply with such direction.”
“Eurojust” is defined in the Act as meaning “the body established by Council Decision of 28th February, 2002 setting up Eurojust with a view to reinforcing the fight against serious crime.” To understand the context of these two subsections it is necessary to refer to the provisions of the Council Framework Decision. Article 17 in the English language version of that decision reads as follows:
“1. A European arrest warrant shall be dealt with and executed as a matter of urgency.
2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.
3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of sixty days after the arrest of the requested person.
4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.
5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled.
6. Reasons must be given for any refusal to execute a European arrest warrant.
7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurosjust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.”
It is clear that subsections (10) and (11) of section 16 of the 2003 Act are intended to be implementations of Article 17 of the Framework Decision. On the argument of counsel for the appellant both in the High Court and in this Court subsection (11) is really irrelevant because in their submission no extension to ninety days was ever granted. The argument on behalf of the appellant is that the court was bound by a sixty day time limit and that once that time expired the appellant was entitled to be released. After giving the matter careful consideration, I have come to the conclusion that that submission cannot be correct.
As a general proposition I would agree with counsel for the appellant that where there is an ambiguity in legislation as to whether the Oireachtas intended in a given instance detention or freedom there is a prima facie presumption in favour of an interpretation involving freedom. But just because some particular aspect is not expressly spelled out in an Act it does not necessarily mean that there is an ambiguity as far as interpretation is concerned. There is a duty on the courts to read the Act as a whole and interpret it. Having carried out this exercise, I find myself broadly in agreement with the interpretation placed on the relevant provisions by the learned trial judge, O’Sullivan J. I particularly agree with the following passage in his unreported judgment delivered the 3rd May, 2005.
“My conclusion is that the parties to the Framework Decision included the time limits before the final decision to express their determination that the extradition process would be speedy and that the member states would be kept aware of each other’s standard of performance in this context. The time limits specified for surrender after the final decision are in a different category, namely, they are mandatory in principle with the result that the requested person is intended to be released if they are not complied with.
I can see no other reasonable interpretation of the striking difference between these two sets of provisions and indeed given the potential for delay outside the control of a member state in conducting the process up to the making of the final decision, it is entirely understandable that the parties to this decision should not have intended the immediate release of a requested person in the event that a final decision is not made by a member state within the specified period in any particular case. Such a consequence would, in my opinion, have to be spelled out clearly and unambiguously given the primary obligation on participating member states to execute the European arrest warrant as set out in Article 1.
Even assuming, without explicitly so finding, that Article 17 has been incorporated word for word into the Act, I cannot agree that it provides that the consequence of the failure of the High Court to make a final order within the time specified therein (whether 60 or 90 days) is that the applicant is entitled to immediate release.”
It is important to make clear, as the High Court judge did in his judgment, that the appellant in relation to his time limit argument rested his case on the Framework Decision itself and the alleged incorporation of that Framework Decision into the Act and not on the provisions of section 16 of the Act.
In an earlier part of his judgment the learned High Court judge also made the following observation:
“In my opinion if section 16 were to be construed on its own the inevitable interpretation would be that it intends the release of the requested person where the High Court decides not to make an order but where it has reached no decision within 60 (or 90) days the intention is not that the requested person be released but simply that the specified authorities be informed. So far as the legislature is concerned therefore where an order has not been made after the specified periods there is no intention to provide for the release of the requested person.”
I agree also with that passage though in a sense a stand alone interpretation is irrelevant. I am, however, even more in agreement with it if it is interpreted as it should be in the light of the Framework Decision.
The fundamental question which both parties have been addressing in this case has at all stages been the question of whether the appellant upon the expiration of the sixty day time limit unextended was entitled ipso facto to be released. I believe, however, that that was the wrong question. The correct question to be addressed and which was in fact addressed by the learned High Court judge is whether following upon the expiration of the sixty day period unextended the duty to execute the warrant ceases. If the answer to that question is in the affirmative then there can obviously be no disputing the appellant’s right to release. If, however, the duty to execute continues then there can be no right to an absolute or permanent release. It may, of course, be open to a court to grant bail. In some circumstances a court may consider that the proceedings ought to be struck out or dismissed and an order for release made on the grounds of a breach or breaches of the arrested person’s fundamental rights. This power of the court is not affected by the provisions of either the European Arrest Warrant Act, 2003 itself or by the Council Framework Decision. Indeed, the twelfth recital to the Framework Decision makes this clear and it is worth quoting in full.
“This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union in particular chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation or that that person’s position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a member state from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.”
It would seem to me therefore, that if there was inordinate delay prejudicial to the rights, including fundamental rights of an arrested person that person might be entitled to be discharged and released. But that is quite different from suggesting that by reason of the expiration of an unextended sixty day time limit there is an automatic entitlement to release. I am satisfied that upon the expiration of that period the duty to execute the warrant has not come to an end but continues. Accordingly, it does not lead to release. Article 1, paragraph 2 of the Framework Decision provides as follows:
“Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”
In accordance with the recital already quoted paragraph 3 of the same Article goes on to provide:
“This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”
If, therefore, as the learned trial judge believes and, as I also believe, the sixty day and ninety day time limits are with a view to internal discipline within the member states and not with a view to conferring individual rights in individual cases then this appeal must fail.
Even if I am wrong about this interpretation and that in some circumstances the time limits are to take effect in individual cases, I would then be of the view that on any reasonable purposive interpretation of the Act and the Framework Decision, self-induced delay on the part of the arrested person must be discounted in calculating the period. Otherwise, in my opinion, the Framework Decision in many cases all over Europe will be unworkable.
Delays by way of court proceedings and appeals are common to all member states and indeed “delay” is the wrong word as that implies some kind of blameworthiness. A more accurate expression would be “a lapse of time”. In this jurisdiction unlike most jurisdictions in the European Union there is only one appeal from the highest court of first instance. In the jurisdiction of England and Wales there is an appeal to the Court of Appeal and a possible further appeal to the House of Lords. In Scotland the position is similar with the Inner House of the Court of Session performing the function of the Court of Appeal. In France there is the Cour d’Appel and in certain circumstances a further appeal from it to the highest court. Similarly, in most countries in Europe. All courts have recesses in the summer and at Christmas for instance. It would seem to me that in any country within the European Union it is quite a likely scenario that the sixty day or indeed the ninety day time limit would be exceeded without fault on anybody’s part especially if interlocutory applications or interlocutory appeals were brought, as happened in this case and as might happen in any case, as for instance, a discovery application. Such an application might go through all the court systems on appeal and inevitably these time limits would expire. Unless these periods are to be discounted in making the calculation the Framework Decision is unworkable. One could envisage, of course, a different form of Framework Decision that might have provided for a mandatory execution of the warrant within a particular period and the return of the person to the executing state in the event of a subsequent appeal by that person being successful. But no such provision is contained in this Framework Decision. I have already indicated that I believe that none of this arises because I am satisfied that the time limits of sixty days and ninety days have no relevance to individual rights in individual cases. But I repeat that if I am wrong about this, I still believe that time taken up in court proceedings instigated by the arrested person must, as a matter of purposive interpretation, be discounted.
The learned High Court judge in his judgment has referred both to section 16(7) of the Act and to Article 23(5) of the Framework Decision. Both of these provisions refer to the time limit for surrender of a person who has not consented to his or her surrender or has withdrawn such consent. If the High Court decided not to make an order for surrender the arrested person must be released unless serving sentence for some other reason. If it had been the intention in the Framework Decision that such would be the consequence of the expiration of the sixty day or ninety day time limits, I cannot imagine why a similar express provision for release would not have been contained in the decision.
For all these reasons, I would dismiss the appeal.
Dundon v. Govr. of Cloverhill Prison
JUDGMENT of Mr. Justice Fennelly delivered the 19th day of December, 2005
The Court is agreed that this appeal should be dismissed. I wish to explain why I agree with the reasoning underlying the judgment of Geoghegan J. I also wish to demonstrate that inability to obtain immediate release upon expiry of the sixty-day period specified in the Framework Decision does not, by any means, signify that an arrested person is unable to invoke full and appropriate protection of personal and human, (including constitutional) rights, which it is the duty of these courts to vindicate.
I agree specifically with the judgment of Geoghegan J that the Appellant is not entitled to be released by reason of the failure of the Court to order his surrender to the issuing state within the sixty-day period mentioned in the European Arrest Warrant Act 2003 and the Framework Decision.
I reach this conclusion by an interpretation of the Act of 2003 in the light of the Framework Decision. It is clear, as Geoghegan J points out in his judgment, “that subsections (10) and (11) of section 16 of the 2003 Act are intended to be implementations of Article 17 of the Framework Decision.”
It is a well-established principle of European Community law that the courts of the Member States are under an obligation when interpreting any national law introduced for the purposes of implementing a directive “to interpret [the] national law in the light of the wording and purpose of the directive in order to achieve the result…” to be achieved. (Case 14/83 Von Colson and Kamann v Land Nordrein-Westfalen [1984] ECR 1891, paragraph 26). The Court of Justice states that this principle may apply to national laws whether passed before or after the relevant directive. (Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.)
The stated justification for this principle is a combined reading of Article 249 (formerly Article 189) of the Treaty Establishing the European Community (“EC Treaty”), under which directives are binding on Member States “as to the result to be achieved” and Article 10 (formerly Article 5) of the EC Treaty under which Member States are under a duty “to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising under this Treaty or resulting from actions of the institutions of the Community.” The Treaty on European Union (“TEU”) contains no provision corresponding to Article 10EC. As Denham J explains in her judgment, the Framework Decision was adopted under Title VI of that Treaty: it is a so-called “third-pillar” measure. By reason of the absence from the TEU of any provision corresponding to Article 10EC, a number of Member State governments, in Case C-105/03 Criminal proceedings against Maria Pupino (judgment delivered on 16th June 2005), disputed the applicability of the principle of “conforming interpretation” The expression is a poor translation of the French: interpretation conforme) to the interpretation by national courts of national laws passed in order to implement Framework Decisions adopted pursuant to Title VI. The Court of Justice rejected these arguments. It held (see paragraph 42 of the judgment):
“It would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions……”
The Court thus concluded:
“When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b) EU.”
Article 34(2)(b) of the Treaty on European Union provides that Framework Decisions “shall be binding on Member States as to the result to be achieved…” It is the “third-pillar” provision which corresponds, therefore, with Article 249 of the EC Treaty. It follows, as I will explain, that the Act of 2003 as a whole and section 16, subsections (10) and (11) in particular should be interpreted “as far as possible in the light of the wording of the purpose of the framework decision in order to attain the result which it pursues……” I see no reason why that principle cannot be applied in this case. It is true that the Court of Justice, in Pupino and earlier cases, recognised certain inherent limits to the principle of “conforming interpretation.” In particular it would not apply, when the “national law ……cannot receive an application which would lead to a result compatible with that envisaged by that framework decision.” It explained that “the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem.” I do not believe that it would be contra legem, as that expression is used in the Pupino judgment, to interpret the Act of 2003 in the light of the Framework Decision. That principle applies whichever of the alternative interpretations of Article 17.3 of the Framework Decision is correct. On the one hand, if Geoghegan J is correct, as I believe he is, in holding that it does not confer such a right, there is no problem of inconsistency. On the contrary hypothesis, that the Framework Decision, properly interpreted, does confer such a right, it would seem clear that the Act of 2003 could not be interpreted so as to deprive an arrested person of that right. The Court of Justice also stated in Pupino:"That principle [of conforming interpretation] does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision." (emphasis added).
As I have stated at the outset, for the reasons given by Geoghegan J, I do not believe that the Appellant can derive any right to be released at the end of the sixty-day period from either the Act of 2003 or from the Framework Decision.
As I have said, I also wish to discuss the rights of arrested persons in general. It does not follow that persons arrested pursuant to a European Arrest Warrant are unable to invoke protection of substantive and procedural rights, merely because there is no automatic right to release after sixty days.
It has to be acknowledged, at once, that the legislation presents unusual problems of interpretation. The European Arrest Warrant is itself a novel instrument. It was adopted in the wake of the devastatingly tragic events of 11th September 2001. The drafting is extraordinarily loose and vague, particularly in the manner in which offences are defined. The Court, on this appeal, has to consider an Act of the Oireachtas which implements a Framework Decision adopted pursuant to the provisions of Title VI of the Treaty on European Union. However, Ireland has not made the declaration which is necessary under Article 35 TEU before the Court of Justice can exercise the interpretative jurisdiction envisaged by that Article. Hence, this Court decides this question without any guidance from that Court. The Court of Justice may, of course, be asked, on a reference from another Member State, to rule on the interpretation of the sixty-day period.
In circumstances where the Framework Decision and the 2003 Act are intended to abolish all existing extradition arrangements between the Member States of the European Union and to substitute a new and expeditious system of surrender, obvious questions arise concerning the extent of protection of the rights of arrested persons.
The European Arrest Warrant is designed to operate, fundamentally within a judicial process. This essential aspect of the procedure is not merely a recognition that its execution “must be subject to sufficient controls,” as is stated in the eighth recital, but of the principle of legality. Persons cannot be surrendered compulsorily from one Member State to another except in accordance with an open and transparent judicial procedure which guarantees respect for fundamental human rights.
As is pointed out in the judgment of Geoghegan J, Article 1(3) of the Framework Decision provides:
“This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”
This is the only substantive provision dealing with fundamental rights and it provides no further guidance as to how that respect is to be effected. In addition, there are a number of relevant recitals in the preamble to the Framework Decision. Not all of these recitals are precisely reflected in the provisions of Article 1(3). The recitals are cited by Geoghegan J. I need not set them out in detail, but they cover, in addition to the matters mentioned in Article 1(3):· The Charter of Fundamental Rights of the European Union;· The possibility of refusal to surrender where there is reason to believe that the warrant is issued in pursuit of discrimination on a number of listed impermissible grounds;· The constitutional rules of a Member State relating to due process, freedom of association, freedom of the press and freedom of expression;· Refusal to surrender based on risk of subjection to death penalty, torture or other inhuman or degrading treatment or punishment.
A difficult question of interpretation of the Framework Decision might arise concerning reliance by a national court on such of these provisions as is merely declaratory and not reflected in Article 1(3). As already stated, the Court of Justice has, in the case of Pupino, cited above, held that national courts are bound to interpret rules of national law “so far as possible, in the light of the wording and purpose of the Framework Decision.”
This interpretative obligation is not affected by the absence, in the case of Ireland, of a power to refer questions for preliminary ruling to the Court of Justice. Article 35(4) ensures that Member States who have not made a declaration may, nonetheless, participate in proceedings on references from the courts of other Member States. Article 35(7) gives the Court of Justice jurisdiction to interpret the Framework Decisions in disputes between any Member States.
This Court is required to interpret and apply the Act of the Oireachtas which implements the Framework Decision. It is notable, in this respect, that section 16(1) (e) envisages that a person will be surrendered provided that inter alia “the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).” (Emphasis added). Section 37, which is in Part 3 of the Act, prohibits any surrender which would be incompatible with rights variously based on the European Convention on Human Rights or its Protocols and, most importantly, that it would “constitute a contravention of the Constitution.”
Insofar as the statutorily permitted grounds of refusal to surrender go beyond the terms of Article 1(3) of the Framework Decision, but are covered by its recitals, they are, nonetheless, expressly invoked by section 16(1)(e) of the Act. Furthermore, the Act prohibits any surrender which would contravene any provision of the Constitution. It would not be possible, by reference to the obligation to interpret in conformity with the Framework Decision, to ignore these provisions: such an interpretation would be “contra legem.” These courts are bound to apply provisions of Acts of the Oireachtas. The Framework Decision does not have direct effect. Where a provision of an Act of the Oireachtas conflicts directly with a provision of a Framework Decision, this Court must give preference to the former. To do otherwise would, to cite the language of the Court of Justice in Pupino, be contra legem.
The precise contours and limits of the rights which can be invoked under the Act will have to be explored as cases arise. I am merely concerned to show that, while the sixty-day period does not confer protection on individuals, there are other features of the Framework Decision, at least as that measure is implemented in Irish law, upon which reliance may be placed by individuals in appropriate cases.
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