Appeal dismissed; public prosecutor designated as judicial authority for European arrest warrant surrender. No grounds to challenge issuing authority status.

THE SUPREME COURT

Record No. 224/2014

Denham C.J.

Murray J.

O’Donnell J.

McKechnie J.

Dunne J.

Between/

Minister for Justice and Equality

Applicant/Respondent

and

Barry McArdle

Respondent/Appellant

And Between/

Record No. 225/2014

Minister for Justice and Equality

Applicant/Respondent

And

Kenneth Brunnell

Respondent/Appellant

Judgment delivered on the 25th day of June, 2015, by Denham C.J.

1. The appeals brought on behalf of Barry McArdle and Kenneth Brunnell were heard together, and a single set of written submissions

on behalf of both of them was filed with the Court. Robert Barron S.C., with him, Ann-Marie Lawlor B.L., appeared for Kenneth

Brunnell, and Mr. Barron S.C. moved the opening oral submissions. Mr. Patrick McGrath S.C., with him Ronan Kennedy B.L., appeared

for Barry McArdle, and Mr. McGrath made the closing submissions. Mr. Remy Farrell S.C., with him Siobhán Stack S.C., appeared for

the Minister for Justice and Equality in both appeals, and filed a single document of written submissions in relation to both appeals.

2. Barry McArdle and Kenneth Brunnell are referred to collectively as “the appellants”. The Minister for Justice and Equality is referred

to as “the Minister”.

3. The appellants are the subjects of European arrest warrants ordered on the 6th July, 2011, in the Netherlands by the Public

Prosecutor in Amsterdam, Mr. W.E. Woudman. Both appellants are sought for the prosecution of the offence of murder.

4. On the 28th March, 2014, the High Court (Edwards J.) ordered the surrender of the appellants.

5. A certificate permitting an appeal to this Court was issued on the 28th March, 2014. The points of law certified as involving points

of law of exceptional public importance are as follows:-

(i) Is it necessary, once there is evidence of the existence of a domestic arrest warrant or other orders of a judicial

authority having the same effect which is the basis for a European arrest warrant, for the High Court to be satisfied

before ordering surrender that the arrest warrant or other order of the judicial authority having the same effect is

subject to independent judicial oversight or scrutiny?

(ii) If so, is the High Court entitled to presume that the domestic warrant has been the subject of independent

judicial oversight or scrutiny for the purpose of a s. 16 hearing?

(iii) If the answer to questions 1 and 2 is yes, was the High Court correct in concluding that the presumption was

not rebutted on the evidence in the present case?

Background facts

6. The facts were stated in the judgment of the learned High Court, which I adopt and set out. In the judgment delivered on the 21st

February, 2014, in relation to Barry McArdle, the learned High Court judge stated:-

“The respondent is the subject of a European arrest warrant issued by Mr. M.E. Woudman, Public Prosecutor (Officier van

Justitie) at the Public Prosecutor’s Office in Amsterdam (Openbaar Ministerie Amsterdam), Netherlands on the 6th July,

2011. The Kingdom of the Netherlands (hereinafter “the Netherlands”) seeks the rendition of the respondent on foot of

this warrant for the purposes of prosecuting him for a single offence as particularised therein. The warrant was endorsed

by the High Court for execution in this jurisdiction on the 27th July, 2011, and it was duly executed on the same day. The

respondent was arrested by Sergeant Sean Fallon on that date, following which he was immediately brought before the

High Court pursuant to s.13 of the European Arrest Warrant Act 2003 (hereinafter “the Act of 2003”). In the course of

the s.13 hearing a notional date was fixed for the purposes of s.16 of the Act of 2003. As the respondent was already

serving a sentence in respect of a domestic conviction, and did not seek bail, he was remanded in custody to the date

fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a

surrender hearing.

The respondent does not consent to his surrender to the Netherlands. Accordingly, this Court is now being asked by the

applicant to make an order pursuant to s.16 of the Act of 2003 directing that the respondent be surrendered to such

person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of

s.16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make

an order directing that the respondent be surrendered is dependent upon a judicial finding that they have been so

satisfied.”

7. The offence is described in the judgment as particularised within the warrant as follows:-

“‘Tuesday February 24’, 2009 around 13:30 hrs the mortal remains of a man were found in the water of the IJ-meer in

Amsterdam near Diemerzeedijk. He resulted to be killed as a result of a crime. The body resulted to be cut into several

parts and was wrapped in packing material. From investigation the identity of the victim became known:

Keith Francis ENNIS

born in Dublin on August 5th, 1979.

Research has shown that the crime was committed within the period of February 17, 2009 until February 24, 2009

The identity of Barry Mc Ardle became known from an investigation.

The suspicion of McArdle consists in the following:

• He has stayed in the location which may be considered as the scene of the crime;

• He has probably made use of one of the two telephone numbers which are directly involved in the crime;

• He is directly related to the other suspects of this offence;

• Forensic traces;

• Statements that the suspect had committed the crime.

There is no reason, upon a consideration of the underlying facts as set out above, to believe that the ticking of the box

relating to ‘murder, grevious bodily injury’ was in error.”

8. During the pre-hearing period the appellants filed initial points of objection. Arising from these the Minister sought the following

information, inter alia, which was described by the learned judge as:-

“In order to clarify the position in this case we require the following information:

(i) Has a decision been made to charge (indict) the requested person? If so is the charge (indictment) reflected in any

summons, indictment or other formal document? If it has please provide a copy of this document.

(ii) If a decision to charge (indict) the requested person has been made, does this mean that a decision has also been

made to put the requested person on trial?

(iii) Does a decision to put the person on trial have to be made separately from the decision to charge (indict) him/her

and, if so, has a decision been made in this case to put the person on trial?

It would also be helpful if you could provide any other information that you feel might be useful in addressing this issue.”

9. After a number of reminders, a short reply was received from the issuing judicial authority, dated the 10th July, 2012, in the

following terms:-

“Referring to your fax dated 02/07/2012 I herewith send you the translated summons of mr. Brunell and mr. McArdle.

As you will see, mr. McArdle has authorized a Dutch solicitor, mr. Rammelt, to hes [sic] defence. I can also confer that

mr. Brunell also has a Dutch solicitor, mrs. Bouwman.

M.E. Woudman

Public Prosecutor”

10. The learned trial judge stated that:-

“Enclosed with this letter were copies of two court summonses, each dated the 6th March, 2012, one relating to the

respondent Mr. McArdle and the other relating to his co-accused Mr. Brunell.

These summonses commanded the person summoned to appear before the District Court of Amsterdam ‘as defendant on

Wednesday 28 March 2012, at 13:30 hours, at the court session of the Full-Bench Criminal Division which will be held at

the District Court, [Arrondissementsrechtbank], Parnassusweg 220, Amsterdam, in order to stand trial in respect of the

charge set forth below’.

The charge set forth in each instance was in terms that:

‘he at some time in the period from 17 February 2009 to 24 February 2009 inclusive in Rotterdam and/or in Mijdrecht

and/or elsewhere in the Netherlands, together and in concert with another or others, at any rate alone, intentionally and

with premeditation, took the life of K. Ennis, as the defendant and/or (one or more of) his perpetrator(s) with that intent

and after calm consideration and careful deliberation stabbed and/or cut said Ennis with a knife, at any rate with a sharp

and/or pointed object, one or several times in his body, causing the death of said Ennis.

(Section 289 Dutch Criminal Code)’”.

11. There were further exchanges of information.

12. It appears that difficulties have arisen out of the different legal systems in the issuing Member State and the executing Member

State. The learned trial judge addressed this matter at p. 54 of his judgment, as follows:-

“This Court wishes to comment, hopefully in a measured way, that the indignant tone of the issuing judicial authority’s

reply dated the 11th October, 2013, and also that of the supporting affidavit of Professor Dr. Strijards sworn on the 14th

October, 2013, is really most unfortunate. It is unfortunate in circumstances where there is required to be trust and

confidence between member states, and also where both issuing and executing authorities are required by the Framework

Decision to afford mutual recognition to each other’s decisions and rulings. Ireland made a declaration during the

intergovernmental negotiations leading to the adoption of the Framework Decision to the effect that Ireland would only

execute an European arrest warrant for the purpose of bringing a person to trial or for the purpose of executing a

custodial sentence or detention order. The declaration was intended to make clear Ireland’s opposition to extradition or

surrender for the purpose of investigative detention. Legislative effect was initially given to this declaration in s.11(3) of

the Act of 2003 (repealed by s. 72(c) of the Criminal Justice (Terrorist Offences) Act, 2005 (hereinafter ‘the Act of 2005’)

), and later by s.21A of the Act of 2003 (inserted by s.79 of the Act of 2005). Accordingly, a person opposing surrender

on foot of a European arrest warrant before an executing judicial authority in Ireland is entitled to make the case that he

is wanted for investigation purposes and not for the purposes of being tried. Where a person’s surrender is sought on foot

of a European arrest warrant there is a statutory presumption under Irish law that a decision has been made to charge

that person with, and try him or her in the issuing state for, the offence to which the warrant relates, unless the contrary

is proved. However, where, as in the present proceedings, a case to the contrary is being made, the executing judicial

authority is obliged, whether the issuing judicial authority likes it or not, to engage with that objection. If the Court

considers that it has cogent evidence before it sufficient to rebut that which is presumed, it must then seek to ascertain

whether, as a matter of fact, decisions had been made, before the issuing of the European arrest warrant, to charge the

person with, and to try him or her in the issuing state for, the offence(s) to which the European arrest warrant relates,

bearing in mind that the onus of proving that such decisions were not made rests on the objector. The timing of the

decisions is important because Irish jurisprudence requires that they should have been made before the European arrest

warrant was issued. Frequently, the answer to these questions is not readily apparent and requires to be inferred from an

examination of the evidence concerning the procedural history of the particular case in the issuing state.

In order to be in a position to draw the correct inference(s) it is necessary for the executing judge to have at least a

rudimentary understanding of how the criminal justice system in the issuing state works, and some general understanding

of the rules of criminal procedure in the issuing state. It may sometimes be necessary to delve more deeply into some

aspects of the procedural history of a case than into others, and it may sometimes be necessary to seek additional

information on more than one occasion. It will always depend on the circumstances of the case.

Accordingly, when an executing judicial authority states that it needs additional information to enable it to perform its

function it is entitled to expect that such a request will be received respectfully and acted upon, if it is possible to do so,

in accordance with the issuing judicial authority’s duty to afford mutual recognition to the executing judicial authority’s

decision in that regard. Mutual recognition is not a one way system that only governs judicial decisions and

communications emanating from the issuing state. It is a reciprocal obligation also governing judicial decisions and

communications emanating from the executing state.

It is a matter of particular concern that in response to a straightforward request by this Court for additional information to

assist it in establishing the facts in regard to the procedural history of the case, and without the Court having expressed

any view whatsoever on the merits or otherwise of the objection that it was considering, that the issuing judicial

authority should conclude that, simply by virtue of such a request being made at all, the executing judicial authority had

in some fashion pre-judged the substantive issues before it; and, moreover, that it proposed to engage in some form of

extra-territorial judicial review of the actions of the Dutch courts and/or prosecuting authorities. That simply was not, and

is not, the case, and this Court is at a loss to understand how on any interpretation of the applicant’s correspondence on

behalf of the executing judicial authority such a view could reasonably have been arrived at.

This Court is prepared to accept that there has been some level of genuine misunderstanding on the part of the issuing

judicial authority, possibly due to the language barrier between us and lack of familiarity with each other’s laws and

procedures, particularly where on one side there is a civil law jurisdiction and on the other side a common law jurisdiction,

and also on one side an inquisitorial system and on the other side an adversarial system.

Indeed, it now seems likely that at least part of the misunderstanding may be due to the fact that, if I understand

Professor Dr. Strijards correctly, only prosecutors are competent before the Dutch courts to give the court guidance as

to Dutch law. I have no reason to doubt that that is so. However, this Court was not seeking interpretation of the law,

merely a description of it – a fine distinction, perhaps. A more significant point is that the explanation that this Court

sought as to Dutch law was (a) requested from a Dutch prosecutor i.e., the issuing judicial authority himself, and (b) it

was never intended to be used before a Dutch Court, but rather before the Irish High Court where the Dutch rules of

evidence and procedure do not apply. To the extent that the prosecutor’s attention was drawn to the textbook in

question, it was thought that that might be of possible assistance to him in circumstances where this Court’s reasonable

working assumption was that most academic commentary on the Dutch criminal justice system was likely to be in the

Dutch language rather than in English. Moreover, it was expressly stated that no regard would be had to it unless both

parties were agreeable, or at least one party had adduced satisfactory evidence in verification of its contents and

confirming the accuracy thereof.

If, as I am prepared to accept, there has indeed been a genuine misunderstanding, it only serves to emphasise the need

for trust and confidence; such that, where a judicial authority on one side has indicated that it needs additional

information, that request will be respected and acted upon by the judicial authority on the other side, even if that need is

not readily apparent or understood by that other judicial authority. Moreover, this Court would venture to suggest that if

the request is not understood, or, as in this case, is considered to be insufficiently specific, the appropriate response

ought to be respectful engagement and a rejoinder requesting some explanation as to why the information is required,

and/or a recasting of the request in more specific or closely focused terms, rather than expression of indignation.

Be all of that as it may, the second affidavit of Professor Dr. Strijards was ultimately helpful, and it has provided some

assistance to this court in understanding properly the role of the public prosecutor in criminal proceedings in the

Netherlands, in particular that the public prosecutor is regarded as being a member of the judiciary.

In addition, the Court has taken due note of the emphatic assertion of the issuing judicial authority that he has charged

the respondent, and his co-accused Mr. Brunell, and that ‘[t]here have already been two hearings in the trial against the

suspects at the District Court as court of first instance, which will decide on the question of guilt, namely on 28 March

2012 and on 30 August 2012’.

13. The High Court considered the issue arising under s. 21A. Section 21A of the Act of 2003, as amended, provides:-

“(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of

an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not

been made to charge the person with, and try him or her for, that offence in the issuing state.

(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified

therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that

offence in the issuing state, unless the contrary is proved.”

14. In addressing the s. 21A issue the learned High Court judge referred to case law, he considered the submissions of counsel of

both sides and the evidence adduced, including the summonses issued. He concluded:-

“… the Court considers that it has not been established to its satisfaction that at the time at which the European arrest

warrant was issued in this case a decision had not been made to charge the respondent with, and try him in the issuing

state for, the offence to which the warrant relates. In the circumstances the Court is not obliged by the terms of s. 21A

of the Act of 2003 to refuse to surrender the respondent.”

15. On the issue of abuse of process the learned High Court judge held:-

“In conclusion on this issue, in circumstances where the evidence does not establish that the prosecutor was untruthful

in suggesting to this Court that he has at all material times had an intention to charge and try the respondent and his co-

accused, there is nothing to establish mala fides on the prosecutor’s part in having summonsed those parties when he did,

or that he has attempted to abuse this Court’s process in any way.

In the circumstances the Court is not disposed to uphold the abuse of process objection.”

16. The learned trial judge addressed the issue as to whether the European arrest warrant was issued by a judicial authority and/or

whether it was a judicial decision within the meaning of Article 1 and Article 6 of the Framework Decision. It was suggested to the

High Court that the Framework Decision requires independent judicial scrutiny in respect of the issue of a European arrest warrant, or

at the very least that there should have been an antecedent process in which there was independent judicial involvement in, or

oversight of the making of, the underlying domestic decision. Reliance had been placed, before the learned High Court judge, on

Assange v. Swedish Prosecution Authority [2012] 2 A.C. 471. Reliance was placed also on Articles 1 and 6 of the Framework Decision

17. The learned High Court judge held (in his judgment on Mr. Brunnell):-

“While there is no evidence on either side as to what other possible safeguards or remedies may exist under Dutch law,

this Court must approach the case on the basis that s. 4A requires that it shall be presumed that an issuing state will

comply with the requirements of the Framework Decision, unless the contrary is shown. To the extent that the Framework

Decision may be regarded as requiring the existence in the issuing State of an antecedent process involving safeguards

against the inappropriate issuance of a domestic arrest warrant, and effective remedies in the case of wrongful arrest on

foot of such a warrant, this Court is obliged to presume that such an antecedent process exists, and/or that such

remedies exist, unless the contrary is shown. The evidential burden in regard to that rests upon the party seeking to

rebut that which is presumed. The evidence in the present case is to the effect that the issuing judicial authority issued

both the underlying domestic arrest warrant and the European arrest warrant; that the prosecutor was entitled to

authorise the arrest of a suspect under article 54 of the Dutch Code of Criminal Procedure; that the prosecutor before

issuing such authorisation was required to be satisfied on the basis of facts or circumstances that there were serious

suspicions against the suspect; that Dutch law does not specifically require such authorisations (warrants) to be in

writing, and that the prosecutor himself says that in this case he gave an oral permission to the police to arrest the

respondent. The respondent has adduced no evidence, either from Mr. Rammelt or anybody else, concerning the absence

of safeguards or remedies under Dutch law in respect of arrests authorised under Article 54, or as to the absence of a

satisfactory antecedent process in terms of what is envisaged by the Framework Decision. In the circumstances, I do not

regard the s. 4A presumption as having been rebutted and I am not therefore disposed to uphold this particular objection.

Finally, in resolving this issue in the manner that I have, this Court is not to be taken as having arrived at a definitive

view as to whether it is possible at all, having regard to the trust and confidence that underpins the European arrest

warrant system, and the principle of mutual recognition, for an executing judicial authority to seek to look behind the

designation of an issuing judicial authority by another member state. It is very much an open question.

[…]

In the present case, in circumstances where the s. 4A presumption was not rebutted, it was unnecessary to engage with

that issue. If, however, the presumption had in fact been satisfactorily rebutted and the Curt had not been satisfied as to

the existence of an appropriate antecedent process, it might then have to consider whether it could in fact look behind

the designation of this particular issuing judicial authority. As to whether or not it can in fact be done will be a matter for

argument and determination in some other case on another day.”

Issues

18. Several issues were raised on this appeal:-

(i) Whether the Framework Decision requires independent judicial scrutiny in respect of the issue of the European

arrest warrants, or, an antecedent process in which there was independent judicial involvement in or oversight in

the making of the underlying domestic decision. Counsel for the appellants submitted that the issue was not that a

public prosecutor had issued the European arrest warrant, but that he was not independent.

(ii) It was submitted that in determining the issue, the learned trial judge was not correct to rely on s. 4A of the

European Arrest Warrant Act, 2003, as amended.

(iii) Whether the evidence, in any event, rebutted that presumption.

(iv) Counsel for the appellants submitted that the Framework Decision was innovative and departed from previous

extradition arrangements between the States, that it took the executive out of the system. That a fundamental

aspect of the Framework Decision is that it is a system of surrender between judicial authorities.

(v) Counsel for the appellants submitted that this is not merely an arrest, but that the appellants may be

surrendered out of the jurisdiction.

(vi) Counsel for the appellants submitted that the principle of proportionality is at the heart of the case, and

referred to Damache v. The Director of Public Prosecutions [2012] 2 I.R. 266.

(vii) Counsel raised the issue of a reference to the Court of Justice of the European Union, raising questions such

as: what is the meaning of ‘judicial authority’? Can the words ‘judicial authority’ have different meanings? The formal

reference question suggested to the Court on behalf of the appellants was:

“Is Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures

between Member States to be interpreted as permitting a public prosecutor, who is personally involved in the

investigation of an offence, to issue a European Arrest Warrant in respect of that offence where it has not been

established that the underlying enforceable judgment, arrest warrant or other enforceable judicial decision having

the same effect was issued by an independent judicial authority”.

Decision

Judicial Authority

19. At the centre of the legal issues in this case is the concept of a judicial decision being made in relation to a European arrest

warrant. This was expressed in the Framework Decision of the 13th June, 2002, on the European arrest warrant and the surrender

procedures between Member States, referred to as “the Framework Decision”.

20. The European arrest warrant provided for in the 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”

[Recital (6) Framework Decision]

21. Further, Recital (8) of the Framework Decision states:-

“Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a

judicial authority of the Member State where the requested person has been arrested will have to take the decision on his

or her surrender.”

22. Further, as noted in Recital (10), it is stated that the mechanism of the European arrest warrant is based on a high level of

confidence between Member States.

23. The European arrest warrant is defined in Article 1 of the Framework Decision as follows:-

“1. The European arrest warrant is 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.

2. 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.

3. 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.”

24. Article 6 of the Framework Decision provides:-

“1. The issuing judicial authority shall be 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.

2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to

execute the European arrest warrant by virtue of the law of that State.

3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its

law.”

25. The European arrest warrant scheme as introduced by the Framework Decision is based on a judicial decision by a judicial

authority, with mutual recognition, judicial co-operation, and trust, between the Member States. It is a scheme operated by judicial

decision between judicial authorities in the Member States.

26. Thus, the foundation for the whole scheme is based on the operation of a judicial decision by a judicial authority.

27. The Framework Decision specifically states that “the judicial authority shall be 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”. [emphasis added].

28. Thus, the Framework Decision states the grounding principle that the law relevant to the issuing of the European arrest warrant is

the domestic law of the issuing State, in this case the Netherlands.

29. In Ireland the matter of an “issuing judicial authority” is addressed in legislation, introduced consequent on the Framework

Decision.

30. Section 2(b) of the European Arrest Warrant Act, 2002, as amended, referred to as “the Act of 2002, as amended”, provides a

number of definitions. It states that an “issuing judicial authority”:-

“means, in relation to a European arrest warrant, the judicial authority in the issuing State that issued the European

arrest warrant concerned.”

This therefore is a clear reflection of the Framework Decision.

31. Further, it is stated in the Act of 2003, as amended, that “judicial authority”

“means the judge, magistrate or other person authorised under the law of the Member State concerned to perform

functions the same as or similar to those performed under section 33 by a court in the State.”

[Emphasis added]

Thus, the term “judicial authority” covers the judge, magistrate or other person authorised, under the law of the requesting State, to

perform functions the same as or similar to those performed under s. 33 by a court in the State.

32. Thus, while the definition of “judicial authority” includes a judge or magistrate, it also includes a person authorised to perform

functions the same as or similar to those performed under s. 33 by a court in the State.

33. Section 33 of the Act of 2003 Act, as amended, provides that a court may, upon an application made by or on behalf of the

Director of Public Prosecutions, issue a European arrest warrant in relation to a person who has satisfied the criteria set out.

34. Section 33 of the Act of 2003 provides for the issuing of a European arrest warrant in Ireland. It is these “functions the same as

or similar” that are referred to in the definition of “judicial authority”, and so defines this person by the functions. This reflects Article

6 of the Framework Decision.

35. Thus, the question of whether a person is an issuing “judicial authority” is to be defined by reference to the issuing State, under

the executing State’s domestic law.

36. It is necessary to have close regard to the requirement of mutual recognition and confidence on this aspect of the scheme

because of the many different legal systems co-operating in the European arrest warrant scheme.

37. It was anticipated that there may be differences of approach in relation to the “judicial authority” chosen in different States.

38. In the Commission Staff Working Document 2007, Annex to the Report from the Commission on the implementation since 2005 of

the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrounding procedures between member

states (COM (2007) 407 final], it is stated at p. 17:-

“Article 6 - Determination of the competent judicial authorities

Article 6 has been transposed by all countries with almost no difficulties. All of them have notified the General Secretariat

of their relevant authorities.

[… ]

The Framework Decision does not define what a judicial authority is, this question being left to the national law of Member

States. Whilst it is understood that the Minister of Justice is designated by national Danish law as being a judicial

authority, it is difficult to view such a designation as being in the spirit of the Framework Decision. Similarly, DE has

designated the Federal Ministry of Justice and the Ministries of Justice in the Länder as the competent judicial authority.

The latter have very often transferred the exercising of their powers to submit outgoing requests to public prosecutor’s

offices in the Länder as well as the regional Courts while their powers to allow incoming requests have generally been

transferred to regional public prosecution authorities in the Länder. One of the main advances of the European Arrest

Warrant system is the removal of the possibility of political involvement from the surrender proceedings. The Commission

therefore considers that the designation of an organ of the Executive as a judicial body will adversely impact on

fundamental principles upon which mutual recognition and mutual trust are based.

The competent judicial authority when EE stands as the issuing Member State is the prosecutor when the EAW is

delivered in order to conduct criminal prosecutions and the Ministry of Justice when the EAW is delivered in order to

execute a custodial sentence. Moreover as national legislation is currently drafted, there is no competent issuing judicial

authority designated to deal with instances where a suspect might abscond during the preliminary stages of the criminal

proceedings. This is not in line with the Framework decision. However, when EE is acting as the executing Member State,

its judicial authorities are district or appeal judges.

In addition, LT has indicated that an EAW for enforcement of a sentence is issued by the Ministry of Justice but only at

the request of the judicial authority or the authority executing the sentence, that is the relevant prison department which

is, however, under the under the control of the Ministry of Justice. The Ministry of Justice is not a judicial authority, but

rather part of the executive. In particular, in the case the issuing of a EAW is asked by the prison department, there is no

involvement at all of the judiciary. As to the Office of the Prosecutor General, it is considered as judicial authority in LT

because the related provision is inserted in Chapter 9 of its Constitution entitled "The Court" of the judicial Procedure.

Hence, there is no strong support to the argument that the Office of the Prosecutor General is a judicial authority in LT.

Again, the Framework Decision states that an EAW must be issued or executed by a judicial authority and as a

consequence LT’s implementation of Article 6 is contrary to the Framework Decision.

For FI, the Criminal Sanctions Agency shall issue the warrant for the enforcement of a custodial sentence.

Last but not least, whilst CY has indicated that the Office of the Attorney General is neither a political, judicial nor an

administrative authority, the Commission is concerned by the role it plays in the issuing of an EAW. Indeed, for a EAW to

be issued in a prosecution case, the consent of the Attorney General must be given in writing prior to the EAW being

produced before the competent judicial authority. The Commission has not been informed of what would happen to a EAW

if the consent by the Attorney General is refused and as a consequence the Commission fears that the Attorney General,

in practice, will endorse the role of a judicial authority.”

39. It is clear that different bodies have been designated as “judicial authorities” in different Member States. The learned High Court

judge was referred to the judgments of the Supreme Court of the United Kingdom in Assange v. Swedish Prosecution Authority [2012]

2 A.C. 471.

40. The jurisprudence from the United Kingdom may be of comparative assistance, as it is a common law jurisdiction. However, the

statute in the United Kingdom introducing the European arrest warrant is significantly different to the statute in this State. The issue

falls to be determined according to Irish law.

Act of 2003, as amended

41. Interpreting the term “judicial authority” in the Act of 2003, as amended, is a matter of domestic law. Thus, the Court is required

in the first instance, to construe the Act of 2003, as amended.

42. However, as Fennelly J. stated in Dundon v. Governor of Cloverhill Prison [2006] 1 I.R. 518 at p. 544:-

“[62] …the Act of 2003 as a whole … should be interpreted ‘as far as possible in the light of the wording and of the

purpose of the framework decision in order to attain the result which it pursues’”.

43. The Framework Decision provides, in Article 1.1, that the European arrest warrant is 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 purpose of conducting a criminal

prosecution or executing a custodial sentence or detention order.

44. Article 6.1 provides that the issuing judicial authority shall be 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.

45. The term “judicial authority” in the Act of 2003, as amended, is broad as it includes a judge, magistrate, or other person

authorised under the law of the requesting State to perform functions the same as or similar to those performed under s. 33 of the

Act of 2003, as amended.

46. In this case the issuing judicial authority in the Netherlands was Mr M.E. Woudman, Public Prosecutor (Officier van Justitie) at the

Public Prosecutor’s Office in Amsterdam (Openbaar Ministerie Amsterdam), Netherlands.

47. The High Court found helpful the second affidavit of Professor Dr. Strijards in understanding the role of the public prosecutor in

criminal proceedings in the Netherlands, in particular that the public prosecutor is regarded as being a member of the judiciary.

48. The learned High Court judge accepted that the Public Prosecutor in Amsterdam is authorised under the law of the Netherlands to

perform functions the same as or similar to those performed under s. 33 of the Act of 2003, as amended.

Conclusion

49. The definition of “judicial authority” in the Act of 2003, as amended, is broad. I interpret this definition in the Act of 2003, as

amended, as far as possible in light of the wording and purpose of the Framework Decision to achieve the result it pursues. I do not

find that the High Court was in error in finding that the Public Prosecutor in the Netherlands is a “judicial authority”.

50. In accordance with the jurisprudence of this Court, and the principles of mutual respect and co-operation, there is a burden on

the appellants to address issues which they wish to raise as to the nature of the “judicial authority”. I agree with the learned trial

judge that they have not met the burden in this case.

51. The structure and composition of judicial systems in the Member States of the E.U. are varied. In many countries the public

prosecutor is an integral part of the judicial structure or judicial corps. This is related to the complete independence of such a

prosecutor and the position of that function in a particular national judicial structure. That, of course, has long been the case since it

derives from an objective knowledge or examination of such systems. Indeed, it is a common experience in the E.U for European arrest

warrants to be issued by national public prosecutors on foot of an underlying warrant, where they are the designated judicial

authority for doing so. Article 6 of the Framework Decision requires a Member State to designate a judicial authority in their country

for the purpose of issuing European arrest warrants. In this case, the Netherlands has designated the public prosecutor as the judicial

authority. As the preamble and terms of the Framework Decision make clear, the process of surrender on foot of a European arrest

warrant is based on mutual recognition of judicial acts within the E.U. There is a presumption that when a European arrest warrant is

issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the

Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it. If there

are cogent grounds established in a particular case which could lead the Court to concluding that the issuing authority was not a

judicial authority that would be a different matter. No such grounds have been established in this case. What is clear is that a public

prosecutor who is designated as a judicial authority by a Member State for the purposes of surrender on foot of European arrest

warrants cannot, by reason only of the fact that he or she is a public prosecutor, as opposed to a judge of a court, be considered

not to be a person who may issue a European arrest warrant within the meaning of the Framework Decision.

The status of a public prosecutor in this context, as already pointed out, is a function of national legal systems. It is not unique to

the system of surrender under the Framework Decision and is also relevant to extradition generally. For example, the European

Convention on Extradition, 1957, refers in Article 1 (on the obligation to extradite) in its English version to the “competent

authorities” in the requesting state. The corresponding French version refers to “autorités judiciaires”. The official explanatory

memorandum points out “The term ‘competent authorities’ in the English text corresponds to ‘autorités judiciaries’ in the French text.

These expressions cover judiciary and the office of public prosecutor, but exclude the police authorities.” Thus, absent reasons to

conclude otherwise, the public prosecutor in this case must be treated as being the judicial authority concerned for the purposes of

the European arrest warrant.

52. There is well established jurisprudence in this Court as to the principles of mutual respect and co-operation in operating the

European arrest warrant scheme. In this regard it is important to state that the respect and co-operation required is indeed mutual.

The learned trial judge records certain comments and observations made by the public prosecutor of the Netherlands which are

neither the norm in these matters or helpful. The Court endorses everything said by the learned trial judge in this regard.

53. Consequently, for the reasons given, I would dismiss the appeal.

54. It is manifest in the operation of the European arrest warrant in Member States of the European Union that a public prosecutor

may be designated as a judicial authority. In the circumstances, having regard to the principles set out in Cilfit, Case 283/81 [1982]

E.C.R 3415 that there are no grounds for a reference to the European Court of Justice.