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Cite as:  IESC 37
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Judgment Title: MJELR v Koncis
Neutral Citation:  IESC 37
Supreme Court Record Number: 368/08
High Court Record Number: 2006 88 EXT
Date of Delivery: 29/07/2011
Court: Supreme Court
Composition of Court: Denham C.J., Murray J. Hardiman J
Judgment by: Denham C.J.
Status of Judgment: Approved
THE SUPREME COURT
[Appeal No: 368/08]
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Judgment delivered on the 29th day of July, 2011 by Denham C.J.
1. This is an appeal on behalf of Kaspars Koncis, the respondent/appellant, referred to as "the appellant", against the judgment and order of the High Court (Peart J.), of the 12th November, 2008, wherein the appellant was ordered to be surrendered to Latvia pursuant to the terms of the European Arrest Warrant Act, 2003.
2. There is a history behind the order of the High Court.
3. On the 4th December, 2004, the Latvian authorities first issued a European arrest warrant seeking the appellant so that he might be prosecuted for four offences allegedly committed in 2004. That warrant was sent to Ireland but it was never endorsed for execution.
4. A second warrant for the same offences was issued on the 21st September, 2005 and was endorsed by the High Court on the 3rd August, 2006.
5. The appellant was arrested on the 23rd August, 2006 and having been refused bail he was remanded in custody in Cloverhill Prison where he remained for six months.
6. On the 24th November, 2006, the High Court made an order for his surrender to Latvia under this second warrant so that he could be prosecuted there for the offences in the warrant.
7. The appellant appealed against that surrender order. However, he discovered that he had been convicted and sentenced in Latvia in his absence for the offences for which the Latvian authorities sought on the European arrest warrant to prosecute him.
8. The appellant applied for his release under Article 40.4.2 of the Constitution. On the 20th February, 2007 the appellant was released by the High Court (Peart J.).
9. It appears that the Latvian convictions were set aside on the 27th April, 2007. He was once more sought to be prosecuted on the offences alleged in the second warrant. The Minister was informed of this on the 22nd June, 2007. The warrant was not withdrawn and the Latvian authorities maintained their surrender request.
10. On the 13th November, 2007, on the advice of the Minister, the Latvian authorities issued a third warrant. The Minister received that warrant on the 3rd December, 2007.
11. On the 21st December, 2007 the appellant withdrew his appeal against the surrender order on the second warrant. The Supreme Court struck out the appeal, on consent.
12. On the 13th February, 2008, the Minister applied ex parte to the High Court to vacate the indorsement and surrender orders made by that court on the second warrant on the 3rd August, 2006, and the 24th November, 2006. That application was granted by the High Court (McKechnie J.).
13. The High Court (McKechnie J.) then indorsed the third warrant for execution.
14. On the 11th March, 2008 the appellant was arrested and brought before the High Court on the third warrant.
15. On the 29th July, 2008, the High Court (McKechnie J.), by consent, vacated his previous order and thereby restored the indorsement of Peart J.'s previous order for surrender on the second warrant.
16. On the 14th October, 2008, the Minister brought another motion on notice to set aside the indorsement and surrender orders on the second warrant. This application was opposed but Peart J. dealt with it in conjunction with the s.16 hearing on the third warrant.
17. On the 12th November, 2008, Peart J. made a surrender order against the appellant on the third warrant and made no order on the Minister's motion to set aside the earlier surrender order.
18. This is an appeal by the appellant from the said order in relation to the third warrant.
1. On May 9, 2004, at 16.50 Kaspars Koncis being previously punished about committing the steal, being in the influence of alcoholic drinks, in the group of persons with previous agreement – with Ritvars Kupcs, guided by avaricious motives, being in the bar "Oga" of SIA "Ilva Club" at 3, Upes street, Madona, with the aim to acquire alien property, using force attacked the barwoman Linda Vismane. At first R. Kupcs came to barwoman and deliberately with hand seized her throat and dragged her to the warehouse premise, giving the possibility to K. Koncis to get alien property. There R. Kupcs continued use violence to L. Vismane, deliberately straggling her throat with hand. When L. Vismane had the opportunity to push back R. Kupcs from herself, R. Kupcs deliberately not less than once kicked, L. Vismane on head with hand. During R. Kupcs used violence against L. Vismane, K. Koncis went to cash desk, which was near bar and robbed from there the property of SIA "Ilva Club" - money totally in amount of 125,25 LVL, from the bar robbed the bottle of 1 litre of cognac "Otard", worth 60 LVL, one bottle of volume 0.5 l of cognac "Baltais Starkis" 9,- LVL worth and opened bottle of volume 1l of cognac "Metaxa" -18 LVL worth, as well robbed the change money of play machines of SIA "Barklajs Speles" totally in amount of 400, - LVL, and the money collected for playing - in amount of 16,35 LVL.
Thus K. Koncis using violence in the group of persons committed the robbery of alien property totally in amount of 628,60 LVL, committing to the victims SIA "Ilva Club" and SIA "Barklajs Speles" material loss in the mentioned amount.
2. Kaspars Koncis on May 29, 2004, at 2.00 in Madona, near the bridge of song platform, which is Situated between song platform of Madona and Akmenu street, in the city conditions, in the place, where is the transition of people, kicked Normund Reiniks two times with the fist on head near the face. K. Koncis kicked N. Reiniks after Edgars Koncis had asked Normund Reiniks to give to smoke. Getting the answer from N. Reiniks, that he does not smoke, K. Koncis kicked the victim with such violence, that from the first hit the eyes of N. Reiniks begun to water, but from the second hit N. Reiniks fell down on the earth in the lawn near the bridge. Kaspars Koncis in the group of persons with Edgars Koncis together kicked to the victim, who layed on the earth, not less than ten times, kicked on head and body. Thus K. Koncis in the group of persons with E. Koncis roughly disturbed social peace, what was in evident disregard to the society. Hooliganic actions were connected with committing of body damages.
3. On June 20, 2004 Kaspars Koncis, being the person, which already before has committed steal in the group of persons after previous agreement, committed the robbery of alien property, what was connected with threatening of violence. The mentioned person, being in the influence of use of alcoholic drinks on June 20, 2004 from 16.20 till 17.00 in the bus of line Aluksne - Jekabpils together with Aivars Lapatovs stole the property of amount of 106,75 LVL of underaged person Viktors Katkovs, including the mobile phone "Siemens ME 45", 100, - worth, "0"card 5, - LVL worth and money in cash 1,75 LVL.
4. Besides Kaspars Koncis on August 3, 2004 repeatedly, because previously punished for committing Steal (the punishment is not served or taken-off), being in the influence of the use of alcoholic drinks, guided by avaricious motives, near bus-station of Madona, in Madona, 6, Rigas street, misappropriated the mobile phone worth 82, - LVL, the property of R. Kozlovskis."
21. On the issue of the previous warrants the learned High Court judge held:-
I adjourned my decision on that application to the date on which the present application was listed, and at the commencement of this application I indicated that I would proceed with the application for surrender, and include my decision on the Notice of Motion in my judgment on the surrender application.
I see no reason to make any order vacating the previous orders. Mr Kelly suggests that since the question of surrender is in the face of the order dated 24th November 2006 ‘res judicata’, the Court cannot again decide the question. I disagree. The present application is free-standing on foot of the third warrant. The previous order was made in respect of the second warrant. That decision is no bar to the present order for surrender being made on foot of the later application. Such an order does not contradict any earlier order or decide any issue differently which has already been decided. I will make no order on the Notice of Motion dated 14th October 2008."
23. The appellant filed a notice of appeal stating his grounds of appeal, thirteen of which were specific and were as follows:-
(ii) The learned judge erred in law in ordering the surrender of the appellant notwithstanding the prohibition against surrender as contained in part 3 of the European Arrest Warrant Act, 2003 and in particular sections 37 and 45 thereof.
(iii) The learned judge erred in law in ordering the surrender of the appellant notwithstanding the imprisonment and prejudice suffered by him in respect of his unlawful arrest and detention pursuant to the previous request.
(iv) The learned judge erred in law in failing to have regard to the fact that the appellant was not informed about and/or was kept in the dark about correspondence received and applications made both in this jurisdiction and in Latvia during the currency of his proceedings and was denied constitutional justice and/or he was not afforded fair procedures.
(v) The learned judge erred in law in his consideration of abuse of process and/or the doctrine of res judicata.
(vi) The learned judge erred in law in concluding the European Arrest Warrant Act, 2003 applied to the Appellant and in particular he so erred in concluding that the European arrest warrant was "duly issued" within the meaning of section 10 of the Act. Without prejudice to the foregoing the learned judge so erred in failing to properly consider the validity of the European arrest warrant as a matter of Irish law and whether the warrant was "duly issued" in accordance therewith.
(vii) The learned Judge erred in placing the onus on the appellant to prove the applicability of the statute rather than requiring the respondent herein to prove its applicability.
(viii) The learned Judge erred in concluding and/or implying that in accordance with the mutual recognition of judicial decisions he was obliged to surrender the appellant notwithstanding the failure of the issuing judicial authority to put any information whatsoever before the Court either in the European arrest warrant or otherwise to explain why the previous request was incorrect and why surrender should again be ordered pursuant to the new warrant in the same set of proceedings.
(ix) The learned Judge erred in law in concluding he was obliged to give "full recognition to decisions made by the courts in Latvia" notwithstanding the Latvian authorities failed to give due recognition and respect to the pendancy of proceedings in this jurisdiction.
(x) The learned Judge erred in1aw in determining that the failure to accord the Appellant natural justice and fair procedures was insufficient to deny the lawfulness of the fresh warrant upon which his surrender was sought.
(xi) The learned Judge erred in law in his consideration of the prejudice suffered by the Plaintiff and in his determination that no substantiated prejudice was suffered by the Appellant in consequence of the new warrant and his rearrest. Without prejudice to the foregoing the learned Judge erred in rejecting the deprivation of liberty and the position vis-à-vis section 45 of the 2003 Act.
(xii) The learned Judge erred in law in his assessment of the delay and passage of time and so erred in limiting that consideration to prejudice at trial such that the Appellant's objections could be dismissed in limine. In that regard the learned trial judge failed to consider the requirements for urgency stipulated in the 2003 Act and the Framework Decision.
(xiii) The learned Judge erred in the manner he considered and determined the relevance of the live endorsement and execution the warrant to the history of the vacation and reinstatement of those Orders.
(ii) Denied fair procedures. The appellant was denied fair procedures and his surrender is prohibited by Part 3, and in particular s.37 of the European Arrest Warrant Act, 2003.
(iii) Warrant not "duly issued". The warrant was not duly issued within the meaning of s.10 of the Act.
(iv) Onus of proof. The High Court erred in placing the onus on the appellant to prove the inapplicability of the statute rather than requiring the Minister to prove its applicability.
(v) Mutual respect. The High Court erred in concluding it was obliged to surrender the appellant on the basis of mutual respect notwithstanding the failure of the issuing judicial authority to reciprocate that respect.
26. Mr. Robert Barron, S.C., counsel for the Minister for Justice, Equality and Law Reform, the applicant/respondent, referred to as "the Minister", addressed this point. He submitted that an order on the second European arrest warrant does not prevent a further warrant. He pointed out that there was a European arrest warrant which was good on its face for the prosecution of the appellant, the High Court was satisfied with the warrant, and he submitted that they should be sufficient.
Counsel submitted that there was no authority for the bare proposition that there could not be two warrants. He submitted that the second warrant is spent, it could not be re-activated especially as the appellant was released on Article 40 on the second warrant. He submitted that Article 23 of the Council Framework Decision of 13 June 2002, and especially Article 23(2), does not deal with the situation of any subsequent European arrest warrant. He further submitted that there was no bar in the Framework Decision to subsequent European arrest warrants, and that there was no bar on the facts of this case.
28. Article 40.4.2 of the Constitution requires that on complaint being made by any person to the High Court alleging that such person is being unlawfully detained, the High Court shall forthwith enquire into the complaint and may order the person in whose custody such person is detained to produce such person in the High Court and to certify in writing the grounds of his detention. Having given the person in whose custody he is detained an opportunity to justify the detention, the High Court may order the release of such person unless the High Court is satisfied that he is being detained in accordance with the law.
29. In this case, the High Court ordered the release of the appellant on the second warrant as it referred to the prosecution of offences when it had transpired that he had been convicted in his absence.
30. The order of habeas corpus is that the appellant be released. It does not state that the High Court order is quashed.
31. Counsel for the appellant has argued that since the second warrant is extant that then the time limits provided for by Article 23 of the Framework Decision apply, specifically Article 23(2). Article 23(2) provides:-
32. This case illustrates an unfortunate history of confusion and lack of communication. The European arrest warrant process was introduced to provide for new expedited procedures between member states, in place of the previous extradition procedures. These new procedures have not worked efficiently in this case.
33. While there is no express provision in the European Arrest Warrant Act, 2003, as amended, referred to as "the Act of 2003", for a second warrant to "go again", it is not expressly excluded. I am of the opinion that as long as the procedures are in accordance with the Act of 2003 and that fair procedures have been followed that there is no reason why a second warrant on the same offences could not be issued, it would depend on all the circumstances of the case.
34. In this case, counsel for the appellant submitted that the appellant should have been surrendered within ten days of the order of the High Court of 21st December, 2007, on the extant second warrant, or not at all. He said that he did not have to argue that the State could not issue another warrant but that in this case the Minister was bringing a third warrant when there was an extant order of the High Court on the second warrant.
35. While there was an order of the High Court to surrender on foot of the second warrant, this was the subject of the court order of habeas corpus and the release of the appellant. It is understandable why in logic and practice it was decided not to rearrest the appellant on foot of the second warrant on which he had previously been arrested and then released.
There is no reason why, in the circumstances, there should not have been a third warrant issued. The issue of second or subsequent warrants was considred in Minister for Justice, Equality and Law Reform v. Ó Fallúin/Fallon  IESC 37, where Finnegan J., giving the judgment with which the other members of the Court agreed, stated:-
36. Nor, in the circumstances, does the issue of time limits for surrender arise in relation to the orders on the second warrant. The second warrant has been superseded by the third warrant. While issues of delay may be a matter of concern in a broad analysis, taking the history of this case as a whole, the terms of Article 23 of the Framework Decision are now applicable to the third warrant and not to the second. In the circumstances, as this appeal has been pending, they do not arise.
37. Further, reference was made to s.37(1) of the Act of 2003. Here I would again refer to and apply the judgment of Finnegan J. in Minister for Justice, Equality and Law Reform v. Ó Fallúin/Fallon  IESC 37, where he stated:-
40. Counsel for the Minister pointed to the letter from the prosecutor. He submitted that this is not a case where a fact was in issue. He submitted that the learned trial judge was entitled to come to the conclusion which he did. Counsel referred to s.20 of the Act of 2005.
41. Section 20 of the Act of 2003, unamended, provides:-
(2) The Central Authority in the State may, if of the opinion that the documentation or information provided to it under this Act is not sufficient to enable it or the High Court to perform functions under this Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify, within such period as it may specify.
(3) In proceedings under this Act, evidence as to any matter to which such proceedings relate may be given by affidavit or by a statement in writing that purports to have been sworn—
(b) in the presence of a person duly authorised under the law of the place concerned to attest to the swearing of such a statement by a deponent,
howsoever such a statement is described under the law of that place.
(b) in subsection (2), by the substitution of "issuing judicial authority or the issuing state, as may be appropriate," for "issuing judicial authority".
43. In reply, counsel for the appellant referred to the admissibility of the letter and said that s.20(2) was not relied upon in the High Court. He submitted that it was not set up as a s.20 request case and that there was no evidence that s.20 was invoked. At this stage of the submissions the court time arranged for the case ran out and the case was adjourned. Resumed Hearing
44. The case resumed on the 17th February, 2011. Counsel for the appellant submitted that the onus was on the Minister to show that the letter of 2nd June, 2007, from the prosecutor was admissible. The High Court had accepted the letter on the basis of the high level of trust between member states, and thus found there were no convictions. Counsel submitted that the High Court was wrong to have regard to the letter. Counsel for the Minister submitted that the entirety of the evidence was in paragraph 7 of the affidavit of John Davis of the Central Authority for the European Arrest Warrant, Mutual Assistance and Extradition Division, Department of Justice, Equality and Law Reform, sworn on the 14th day of October, 2008. That paragraph states:-
Letter dated June 22, 2007
International Cooperation Department of Analysis and Management Department of the General Prosecutor's Office of the Republic of Latvia had examined your request on the acceptance of a new European arrest warrant regarding K. Koncis, born on April 18, 1983.
The European arrest warrant sent to you has not been cancelled and the Latvian party still is asking to extradite K. Koncis for judicature."
46. The above amendment of 2005 provides a basis for the High Court or the Central Authority, if the information or documentation provided is not sufficient to enable it to perform its functions under the Act, to require the issuing judicial authority or the issuing state to provide additional documentation or information.
47. The Minister relied on s.20(2) of the Act of 2003, as amended, and as stated in full previously, being the affidavit of John Davis of the Central Authority and the letter exhibited.
48. The European Arrest Warrant Scheme is sui generis. The Act of 2003 was introduced to establish an expedited system of surrender between Member states. As stated in Recital 5 of the Council Framework Decision of 13 June 2002:-
50. In this case, there was the fact that the appellant was being sought for the prosecution of offences, which, it appears, had at some time been prosecuted and the appellant had been convicted in his absence and that then the convictions were quashed. The Central Authority of Ireland sought further information. This letter was exhibited in an affidavit of John Davis of the Central Authority of Ireland. The High Court admitted the affidavit and the letter, bearing in mind the principle of mutual recognition and judicial cooperation.
51. The European Arrest Warrant Scheme was founded in the Framework Decision and it seeks to implement the principle of mutual recognition which is the cornerstone of judicial cooperation. The execution of a European arrest warrant is subject to a decision by a judicial authority: in Ireland this is the High Court, or, on appeal, this Court.
52. In all the circumstances of the case, I would not interfere with the exercise of the discretion of the High Court on the issue of the admission of the information.
53. As to the other grounds of appeal raised, I do not find that there is a basis to interfere with the order of the High Court. While it is unfortunate that there were three warrants and many court proceedings, the appellant was treated fairly at all times, and was entitled to take all such proceedings as he did.
54. The appellant has spent approximately seven months in custody because of these proceedings. Counsel may address the Court as to the exact length of time during which the appellant was in custody on these warrants. In the circumstances this time should be deducted from any sentence he may be ordered to undergo in Latvia as required by the Framework Decision.