Supreme Court allows appeal against surrender warrants due to fundamental changes in their nature and purpose.

THE SUPREME COURT

Appeal No. 216/2014

Denham C.J.

Murray J.

Hardiman J.

MacMenamin J.

Dunne J.

In the matter of the European Arrest Warrant Act, 2003

Between/

The Minister for Justice and Equality

Applicant/Respondent

and

Arnost Herman

Respondent/Appellant

Judgment delivered on the 21st day of May, 2015 by Denham C.J.

1. This is an appeal by Arnost Herman, the respondent/appellant, referred to as “the appellant”, from the order of the High Court

(Edwards J.), made on the 28th March, 2014, that the appellant be surrendered to the Czech Republic on foot of two European arrest

warrants dated the 10th August, 2011 and the 15th November, 2012, and bearing Record No. 2011/302 EXT and 2013/45 EXT,

respectively.

2. The High Court ordered the surrender of the appellant for prosecution in the Czech Republic on foot of another warrant, dated 9th

October, 2012. There was no appeal in relation to that warrant. However, the appellant’s surrender on foot of that warrant has been

stayed, pending the determination of this appeal.

3. Thus, the appellant was sought on three warrants. The first warrant dated the 10th August, 2011, sought the surrender of the

appellant on offences of racketeering and extortion, internationally injuring another person’s health, and without authorisation

obtained for himself and kept a firearm, and without authorisation obtained for himself and kept a weapon of mass destruction, and

accumulated weapons and ammunition. On the face of the warrant it stated that he was convicted by the court in the Czech

Republic, and that he was sought for the purposes of executing a custodial sentence. This warrant is referred to as “Warrant No. 1”,

and is a subject of this appeal.

4. Another warrant, dated the 9th October, 2012, also sought his surrender to the Czech Republic. There has been no appeal in

relation to this warrant, which is referred to as “Warrant No. 2”.

5. A third warrant, dated the 15th November, 2012, sought the appellant for arrest, it seeks that the appellant be arrested and

surrendered for the purposes of enforcing custodial sentence. It is stated that: “This warrant relates to in total: 11 offences, more

precisely 1 act consisting of 11 attacks.” The offences are categorised as being racketeering and extortion. This warrant is referred

to as “Warrant No. 3”.

6. An unusual feature of this Warrant No. 3 is that it is stated:-

“Note: There has been issued a judgment under ref. 7T14/2009, which however has not become final and conclusive –

appellate proceedings pending”.

7. Another unusual feature is that the first eight offences on Warrant No. 3 are the same offences as are the subject of Warrant No.

1. 8. On 30th April 2014, the High Court ordered that the surrender on Warrant No. 2 be stayed, that the appellant be remanded in

custody pending the determination of his appeal (on Warrant No. 1 and Warrant No. 3) to the Supreme Court.

Certified Question

9. The High Court ordered that there was a point of law of exceptional public importance and that it was desirable in the public

interest that an appeal should be taken to this Court. The certified point of law was:-

“In circumstances where S. 10 of the 2003 Act as amended sets out, in disjunctive terms, the four purposes for which

surrender can be ordered in respect of an offence, does the Court have jurisdiction to order surrender in respect of an

offence in circumstances where more than one of the purposes referred to in S. 10 (a) – (d) applies to the said offence;

or where it is not clear from the Warrant and associated information which of the said provisions actually apply.”

10. On behalf of the appellant it was submitted that the language of s. 10 of the European Arrest Warrant Act, 2003, as amended,

referred to as “the Act of 2003”, limits the jurisdiction of the Court to surrender for the four purposes set out therein. It was

submitted that the language of s. 10 of the Act of 2003 is disjunctive; that there must be one purpose for surrender for each offence

contained in a warrant.

11. In relation to Warrant No. 3, this has been described above, as being for “the purposes of enforcing custodial sentence”. The fact

that there was an appeal process was also noted.

12. However, a document entitled “European Arrest Warrant – Amendment” is also before the Court. It refers to a change. It

purported to issue an amendment to the European arrest warrant, as follows:-

“I. I request the said person to be arrested and surrendered for the purposes of criminal prosecution or enforcing custodial

sentence or detention order.

II. To the request to be amended Section d) of the issued European Arrest Warrant, I advise that in the meantime the

procedural situation changed. By resolution of the High Court in Prague on 4th December, 2012 under file No. 10 To

48/2012 has been with respect to the accused Arnost Herman cancelled the Judgment of the Regional Court in Hradec

Kralové of 24th June 2011 ref No. 7T 14/2009 – 2246, and the case has been returned to the extent [sic] of cancelling to

the Regional Court in Hradec Kralové to consider it again in the needed extent [sic], and make a new resolution in this

case.

The essential reason for this resolution was beside others the fact that part of the court trial was held in absentia of the

accused Arnost Herman without all the statutory procedural conditions met.”

13. It was submitted that the Court could not order surrender under Warrant No. 3 as the appellant’s surrender is sought for more

than one purpose.

Notice of Appeal

14. The notice of appeal sets out the following grounds, namely that the learned High Court judge erred in law or in fact or on a mixed

question of law and fact as follows:-

“(i) The learned trial judge erred in ruling that there was sufficient information contained in Warrants 1 & 3 and in the

additional information provided in respect thereof by the Requesting State to satisfy the Court of the lawfulness of

surrendering the appellant on foot of the said warrants and to provide sufficient clarity in relation to the consequences of

surrendering the appellant to the Requesting State.

(ii) The learned trial judge erred in ruling that there was sufficient information contained in Warrants 1 & 3 and in the

additional information provided in respect thereof by the Requesting State to satisfy the Court that there was clarity in

respect of the nature of the criminal proceedings referred to therein, in respect of their current status and of their

interaction.

(iii) The learned trial judge erred in concluding that there was sufficient information provided by the Requesting State to

conclude that Warrant 1 related to a currently enforceable sentence.

(iv) The learned trial judge erred in ruling that the Court had jurisdiction to surrender on foot of European Arrest Warrants

1 & 3 in circumstances where the purpose of surrender under Warrant 1 was described under S.10 (d) of the 2003 Act as

amended, that is, to execute a sentence in relation to certain criminal acts; and where the purpose of surrender under

Warrant 3 related either to S.10 (a) or S.10 (b) or both of the 2003 Act and was for the purpose of quashing and

resentencing the surrendered person in respect of, inter alia, the said criminal acts.

(v) The learned trial judge erred in ruling that the Court had jurisdiction to surrender on foot of European Arrest Warrant 3

under S.10 (a) of the 2003 Act as amended for the purpose of intended proceedings, in circumstances where the coming

into existence of those intended proceedings was contingent on certain future determinations of fact and law being made

by a Judicial Authority in the Issuing State.

(vi) The learned trial judge erred in ruling that the Court had jurisdiction to order surrender on foot of European Arrest

Warrant 3 in respect of a single `offence' contained the said warrant, in circumstances where the authorities in the

Issuing State had yet to determine whether the subject matter of the said warrant amounts to a series of offences or to

one offence.

(vii) The learned trial judge erred in ruling that the Court had jurisdiction to order surrender on foot of European Arrest

Warrant 3 in circumstances where S.10 of the 2003 Act as amended sets out, in disjunctive terms, the four purposes for

which surrender can be ordered in respect of an offence; where more than one of the purposes referred to in S.10 (a) -

(d) appear to apply to the said offence; and where it is not clear from the Warrant and associated information which of

the said provisions actually apply.

(viii) Having regard to the particular materials that were before the Court, the learned trial judge erred in fact and in law

in ordering the surrender of the Appellant in respect of all criminal proceedings and sentences that were the subject of

the said warrants.

(ix) Having regard to all the circumstances the learned trial judge erred in law in making the said orders.”

Submissions

15. Written submissions were filed on behalf of the parties and were considered by the Court. At the hearing of the appeal the Court

asked counsel to address the issue of the clarity, or lack of clarity, of the warrants under which the appellant was sought.

Decision

16. The two warrants, Warrant No. 1 and Warrant No. 3, were before the Court, together with the additional information which had

been provided.

17. At the core of this appeal is the issue of clarity; or the lack of it. It is essential when a court has before it a request in a

European arrest warrant that there be clarity as to the offences for which surrender is sought, and as to any proposed sentencing.

This is the settled jurisprudence of the Court.

18. In The Minister for Justice, Equality and Law Reform v. Maksion Rodnov (unreported, ex tempore, Supreme Court, Murray C.J.,

1st June, 2006) Murray C.J. stated:-

“…where language is used which, even when reading the document as a whole, is not at all meaningful or clear there is a

risk that the application may fail especially if the deficiency concerns an essential matter.”

19. It is essential that the documents in an application for surrender under a European arrest warrant be in order. They should state

the information required under the Act of 2003. This information should be provided with clarity. This clarity is required both in relation

to the documents and to the translations.

20. The one thing that is clear when considering Warrant No. 1 and Warrant No. 3 is that there is a lack of clarity.

21. To some degree this lack of lucidity arises because of an aspect of the law of the Czech Republic which enables a sentence in an

earlier court decision be varied by a later court decision.

22. This illustrates a difference between the law of the Czech Republic and Ireland. However, that is not the issue. The issue is the

lack of clarity on Warrant No. 1 and Warrant No. 3, as to exactly for what the requesting state seeks the appellant.

23. Both Warrant No. 1 and Warrant No. 3 refer to acts which are stated to be under Czech law as “partial attacks”. It appears that

the appellant may be prosecuted for further partial attacks, as in Warrant No. 3, but if convicted and sentenced then this could alter

the sentence referred to in Warrant No. 1.

24. Warrant No. 1 on its face, says that the appellant has been convicted and is sought for the execution of a custodial sentence. It

states that the remaining sentence to be served is:-

“The term of custody served from 26 January, 2007, at 04.35 am till 19 January, 2010, at 02.35 pm has been included in

the term of imprisonment, i.e. 1,088 days, i.e. 3 years and 7 days remain to be served from the custodial sentence.”

25. However, it transpires that this could be altered, the sentence may be different. As a consequence of a prosecution under

Warrant No. 3 the appellant may be given a more severe sentence on Warrant No. 1, in the global sentencing on Warrant No. 1 and

Warrant No. 3.

26. As to the maximum sentence to which the appellant would serve, if surrendered to the Czech Republic, there is a lack of clarity. It

is not clear whether the maximum sentence would be eight years or more.

27. Reference has been made to the further information furnished to the High Court, and to the document entitled “European Arrest

Warrant – Amendment”, which seeks to amend the European Arrest Warrant. This is set out in detail earlier in the judgment.

28. Thus, while the original Warrant No. 3 states that it is a request that the appellant be arrested and surrendered for the purpose

of enforcing custodial sentence, the Amendment purports to state that the European arrest warrant is firstly to arrest and surrender

the appellant for the purpose of criminal prosecution, possible subsequent result of which may be enforcement of custodial sentence

or detention order.

29. The Court was referred to s. 45C of the Act of 2003, which provides:-

“For the avoidance of doubt, an application for surrender under section 16 shall not be refused if the Court is satisfied

that no injustice would be caused to the person even if –

(a) there is a defect in, or an omission of, a non-substantial detail in the European arrest warrant or any accompanying

document grounding the application,

(b) there is a variance between any such document and the evidence adduced on the part of the applicant at the hearing

of the application, so long as the Court is satisfied that the variance is explained by the evidence, or

(c) there has been a technical failure to comply with a provision of this Act, so long as the Court is satisfied that the

failure does not impinge on the merits of the application.”

30. It was submitted that the additional information came within the term “variance” in s. 45C (b). However, I am not satisfied that

such is the situation here. The position now is that instead of being sought for sentencing under Warrant No. 3 the appellant is now

sought to be arrested and prosecuted. Further, the effect on Warrant No. 1 is that he may have to serve a different sentence on

Warrant No. 1 to that set out in the warrant itself.

31. In all the circumstances this is not “a variance”. This is, in fact, entirely contradictory. There is a fundamental change from the

purpose for which surrender was sought in the original warrant.

32. It has occurred on other occasions that a situation has changed and the requesting state has withdrawn a warrant and issued a

new warrant. Section 11(1) of the Act requires that a European Arrest Warrant “…shall, in so far as is practicable, be in the form set

out in the Annex to the Framework Decision …”. This mirrors the obligation contained in Article 8 of the Framework Decision.

Moreover, Article 1 of the Framework Decision defines the European Arrest Warrant as a judicial decision issued in one member state

and executed in another member state on the basis of the principle of mutual recognition. A warrant is an integral document. Section

13 of the Act of 2003 requires that any such European Arrest Warrant be endorsed by the High Court before it is executed in the

State. It is on foot of such a warrant, duly endorsed by the High Court, that a person may be arrested for the purpose of surrender

on foot of it.

33. Where the national judicial authority which issued a European Arrest Warrant seeks to change a fundamental element in the

nature or purpose of the warrant, as opposed to providing further information or corrections of a minor nature, a new warrant should

be issued in the form required by the Act, namely, in the form in the Annex to the Framework Decision, so that it may be endorsed for

execution in the State by the High Court.

34. In all the circumstances, I am satisfied that there is a serious lack of clarity in relation to Warrant No. 1 and to Warrant No. 3,

and consequently, I would allow the appeal in relation to both those warrants.

Conclusion

35. For the reasons given, I would allow the appeal in relation to Warrant No. 1 and Warrant No. 3. This means that the appellant may

not be surrendered to the Czech Republic on these warrants. However, the order of the High Court in relation to Warrant No. 2

stands, and thus the appellant may now be surrendered to the Czech Republic on that warrant. The High Court, on 30th April 2014,

ordered a stay pending this appeal, which is now concluded, and thus the stay is at an end.