Conditions for Arrest
The European Arrest Warrant takes effect pursuant to an EU decision to establish the common framework for the enforcement of arrest warrants. The High Court is the relevant court in respect of a European Arrest Warrant.
The general principle is that once an EU judicial authority issues a European Arrest Warrant in respect of a person
- against whom it is intended to bring proceedings for an offence to which the warrant relates,
- who is the subject to proceedings for such offence
- has been already convicted but not yet sentenced or
- has been sentenced or detained,
then the person concerned must be arrested and surrendered to the EU state issuing the warrant.
The arrest warrant must specify certain details including
- name and nationality of the person,
- details of the court issuing the warrant,
- details of the offence,
- details of any conviction or sentence,
- circumstances of the alleged offence, time and place.
- penalties that will apply if convicted
Each EU state designates a central authority for the transmission of European Arrest Warrants. Upon receipt of a European Arrest Warrant, the Irish central authority makes an application to the High Court for endorsement by the High Court of the warrant. Provided the procedures under the legislation have been complied with, the High Court endorses the warrant for execution.
The warrant may thereby be executed by any member of the Garda Síochána even though he does not possess the warrant. The warrant is to be shown to the person arrested within 24 hours if it is not available, at the point of arrest.
The arrested person must be informed of his right to consent to be surrendered, be provided with professional and legal advice and representation and where appropriate p- obtain or be provided with the services of an interpreter.
Arrest and Court
Gardai have comprehensive powers of such in connection with the execution of the European Arrest Warrant. They may enter places where they have reasonable grounds for believing the person may be found. They may seize things in their possession.
A warrant is required to enter a dwelling house without consent. Property that is seized at the time of arrest is handed over to the other EU state through the central authority.
As soon as possible after the arrest, the person must be brought before the High Court. The High Court may remand the person in custody or bail. It must inform the person of the above-mentioned rights and must fix a date for an extradition hearing.
A Garda may arrest any person without a warrant whom he reasonably believes to be a person named in an alert. He must be informed of their rights and furnish with a copy of the alert and be brought before the High Court.
A person who has been arrested pursuant to a European Arrest Warrant may consent to surrender. He must be brought before the High Court which must be satisfied that the consent is voluntary, and the person has obtained or has been afforded the opportunity to obtain legal advice before consenting.
Where there are multiple arrest warrants or multiple European Arrest Warrant, the High Court shall determine which it shall give effect to in priority, having regards to the seriousness of the offence as the places where they were committed, the dates and whether they are brought for the purpose of seizing a person who has already been sentenced or a brining a person for trial. Similar provisions exist where there is an extradition request and a European Arrest Warrant.
The person must be informed of his right to challenge the legality of the procedure. There are restrictions on consenting in respect of certain types of offences. A person who consents to surrender shall be surrendered within 10 days after the requisite order.
There a person does not consent, the High Court at the initiating or adjourned hearing must make an order surrendering the person
- if it is satisfied the person is the person identified in the warrant
- that the warrant is valid and issued in accordance with the legislation
- that the surrender is not prohibited by under certain conditions specified in the EU decision
Where an order is not immediately made, the person may be remanded in custody or on bail. Where an order is made, the person is committed to remain pending surrender. The person is surrendered within 15 days unless he challenges the legality of his detention within that time.
An appeal against an order may be made to the Court of Appeal.
Where the High Court has not made in order within 60 days of the arrest, the central authority must inform the counterpart authority in the other EU state.
Surrender may be postponed on humanitarian grounds. The person may be remanded in custody or on bail for that purpose.
Where a person has been sentenced to prison and is imprisoned at the time of the order, he may be surrendered to the other state, subject to such conditions as may be specified.
Other Offences & Onward Surrender
The rules in relation to prosecution for other offences than that in the warrant, apply in the same manner as extradition with modifications. The surrender may not be refused if
- the prosecution for another offence is subject to first obtaining the consent of the High Court.
- the person consents to being so proceeded again or
- such proceedings will not commence until 45 days after the person’s final discharge.
The High Court may consent to other proceedings being brought upon receiving a request from the authorities.
Generally, a person surrendered to another state may not be surrendered to a third state other than with the consent of the High Court or where the person consents. In the case of surrenders to third countries outside the EU, the extradition should not take place unless the consent of the High Court and the Minister for Justice is obtained.
A person may not be surrendered if this
- would be incompatible with the European Convention of Human Rights.
- would be incompatible with the Constitution.
- there are reasonable grounds for believing that it is for the purpose of facilitating punishment or prosecution for reasons connected with sex, race, religion, nationality, language, political opinion, or orientation.
- he may be treated less favourably on such grounds or where he may be sentenced to death or subject to torture or inhuman or degrading treatment.
A person may not be surrendered to another state if he has already been convicted of an equivalent offence in the State. He may not be surrendered if he is of an age by which he could not be prosecuted for an equivalent offence in the State.
He may not be surrendered if the offence specified or alleged was committed other than in the state seeking the warrant.
A person may not be surrendered if he was tried and convicted in his absence, did not have notice of the trial or was not permitted to attend unless an undertaking is given that he would be retried or given the opportunity for a retrial of which he will have notice.
Correspondence with Irish Offence
A person may not be surrendered on a European Arrest Warrant unless
- the offence corresponds to an offence under Irish law, (and vice versa),
- punishable by imprisonment of not less than 12 months or
- the subject of a prison sentence or detention for at least 4 months or
- the offence is one to which certain provisions of the EU Framework Decision applies and under the law of the issuing state is subject to imprisonment for a maximum period of not less than 3 years.
The offences which must be punishable by at least 3 years imprisonment include
- counterfeiting currency
- computer-related crime
- environmental crime
- counterfeiting and piracy of products
- forgery of means of payment
- forgery of administrative documents
- illicit trafficking in certain matters,
If the person has been pardoned as a subject of an amnesty, he may not be the subject of a European Arrest Warrant.
Surrender may not be refused on the basis that in relation to a revenue offence, no tax or duty of the kind applies in the State or were the rules in relation to the taxes duties or exchange controls differ in nature from the rules in the other state.
A European Arrest Warrant for execution in another EU state may be issued on the application of the DPP provided
- a domestic warrant has been issued but has not been executed and the person may not be within the state
- the offence carries imprisonment of at least 12 months, or a prison sentence of 12 months has already been imposed
The application for European Arrest Warrant must specify certain details including, in particular the details specified above in respect of an inward warrant.
A person surrendered by another EU state may be arrested pursuant to the domestic warrant.