A European Arrest Warrant procedure or extradition proceedings are initiated by a foreign EU State or Treaty State, making a request for extradition through the designated channels. An application is made on behalf of the Minister for Justice or Attorney General to the High Court, seeking authority to arrest the person, in order to enable him to the requesting State. There is provision for cases of urgency, where a person may be detained and arrested for provisionally pending receipt of a formal request and authorisation.
The European Arrest Warrant Act provides that the requesting authority is presumed to comply with the framework decision. The European Arrest Warrant legislation is to be read in a manner consistent with the underlying EU framework decision. If the Irish legislation cannot be operated in conformity with the EU framework decision, the State may have an obligation to rectify its implementation of the framework decision.
A request may come from another EU State under the European Arrest Warrant, a treaty State, State to which Ireland is party to a treaty or bilateral or multilateral, in the case of extradition or from international criminal bodies, which are subject to special legislation allowing extradition.
A European Arrest Warrant is issued by a judicial entity in an EU State, in relation to a person intended to be prosecuted or sentenced there to imprisonment. This implies a judicial authority such as a judge, magistrate or person authorised by law to issue warrants. An arrest warrant may cover a number of offences.
As with criminal matters generally, and in the context of extradition particularly, there is an obligation that procedures be strictly complied with. The extradition legislation has been interpreted as penal in nature and accordingly the principle is applied that it should be read in favour of the party whose extradition is sought, given that it may affect his liberty.
Iit is presumed that the proper procedure in the requesting State has been followed and will not be examined by the domestic court. The legislation was amended in 2009 to provide that the warrant was to be presumed to be duly issued in the other State.
There is a prescribed form of European Arrest Warrant set out in the Framework Decision. It provides for certain information including
- details of the person being sought,
- the judicial authority,
- the offence and the classification under domestic law.
Details of the offence include where and when it occurred and the involvement of the person whose removal is sought, evidence that a warrant has been issued for the offence or in the case of a conviction, sentence or equivalent order.
The warrant is transmitted to the Irish central authority which is the Minister for Justice. Translation may be required if it is other than in Irish or English. The underlying domestic warrant need not be included. Transmission may be by any method capable of producing a written record including e-mail etc.
Under the Extradition Act, the request must be made in writing to the Minister by diplomatic agents of the country concerned or by other methods provided for. The extradition request must contain
- a copy of the conviction, sentence or warrant,
- statement of the offence,
- statements of the relevant law,
- description of the person concerned,
- any information relevant establishing his identity and
- any other documents provided for under the agreement.
The treaty will provide for the method of communication which may be electronic in modern cases.
The arrest warrant procedure requires that the warrant be issued in respect of someone who he is the subject of proceedings in the requesting State. In continental systems, there are broader provisions for arrest for questioning, although they differ in their nature. The common law systems look at the procedure broadly to ascertain that there is a proceeding for an offence or in effect the commencement or the prosecution has commenced.
There must be an intention to prosecute at the time the original warrant is issued. However, a warrant issued for the purpose of investigation alone, is not sufficient to qualify.
It is presumed that a decision has been made to charge the person with and try him for an offence. However, the fact that a further decision may be made not to prosecute or proceed does not mean that the requirement has not been complied with.
Under the Extradition Act, the person must have been proceeded against in the country concerned. The requirement will turn to some extent on the wording of the particular treaty.
A warrant of extradition may be sought in respect of a person who has been convicted, who has escaped or been convicted in his absence. He may be a person who has been convicted but not yet sentenced or on whom a sentence of imprisonment or detention has been imposed. The term of imprisonment or detention of at least four months must have been imposed.
An extradition request may be made for a person who is wanted to serve out a sentence including a detention order. The exact requirements will be determined by the treaty or convention concerned. The European Convention and many of the other treaties require offences of imprisonment of four months.
Where more than one request has been made for a person, the Minister is to inform the High Court of the fact promptly. It shall determine which shall be effected, having regard to the seriousness of the offence, where they were alleged to be committed, when warrants were issued or whether the person has been really accused or has been convicted.
In the case of extradition, the Minister has a discretion in relation to which, if any, should be dealt with. It will have regard to the seriousness of the offences, where they were committed, the nationality of the person and the possibility of subsequent surrender to another State.
In the case of the International Criminal Court, the Minister must consult with the International Criminal Court in accordance with its statute and may then decide whether to give priority to the International Criminal Court request.
In the case of European Arrest Warrant, the entitlement to arrest, the entitlement to surrender is automatic.
An application is made to the High Court unilaterally for authority to carry out an arrest. In the case of the European Arrest Warrant, once notified, the Minister as soon as may be is to apply to the High Court and to seek to have it endorsed for execution. The court will endorse it unless there is evident non-compliance.
The legislation provides for authentication of documents and for their admission in evidence.
In the case of extradition, a Minister has a role in deciding whether the extradition is permitted by the Act. It may refuse to act, if he determines that the extradition is not covered. In the case of extradition, the Minister certifies receipt. An application is made to the High Court for a warrant at an initial stage; the court will not consider the merits of the matter or whether the documentation is fully in order.
There is a provision for provisional arrest for urgent European Arrest Warrant cases. Apart from this, High Court authorisation is required.
The arrest warrant may be executed by a member of an Garda Síochána in the State. He must show the endorsed copy of the warrant to the person concerned and give him a copy. If it is not possessed by the Garda, it must be given within 24 hours.
The person arrested must be informed of his right to legal advice and representation, his right to consent to surrender or of right to interpreter, if appropriate. He may take proceedings promptly to the High Court.
Reasonable force may be used by a Garda to gain access to a place in order to execute a warrant. This includes most buildings but does not appear to include a dwelling. An application may be made to the District Court for a warrant to enter a dwelling house.
Similar provisions apply to execution of an extradition warrant. It may be executed by a member of An Garda Síochána anywhere in the State. A copy must be given to the person concerned. However, the legislation does not provide for communication concerning the rights to legal representation or an interpreter. This may be required under Human Rights or Constitutional provisions.
The European Arrest Warrant provisions, the extradition legislation and the International Criminal Court legislation provides for a provisional arrest procedure by which a person may be arrested prior to formal request being received and held in custody.
Without prior court order, the person may be arrested by a Garda where an alert has issued by a judicial authority in a European Arrest Warrant State. The person must be informed of the reason for arrest and be notified of his right to legal advice and an interpreter. He must be brought before the High Court, as soon as may be. The High Court is to inform him of his rights and remand him for no more than 14 days. He is to be released unless an arrest warrant is produced at that time.
Communications may be made under the Extradition Act in a similar way requesting the immediate arrest of a person where it is intended to apply for his extradition. The nature of the offence must be specified, where it occurred and when and the person must be described.
Information required by the relevant treaty must be included in the request. An application is to be made to the High Court under the extradition legislation for an arrest warrant is to be issued on the basis of circumstances of urgency. The urgency is presumed to exist until the contrary is proved.
A provisional arrest warrant may be executed by a member of An Garda Síochána at any place in the State. The person detained may be required to be furnished with certain information.
Where the person is arrested and then as soon as may be, he should be brought before the High Court. He must be remanded in custody or granted bail. The warrant still stands. Within a period of 18 days, if a certificate is not produced by the Minister, he is entitled to be released.
A person who has unlawfully been detained may seek habeas corpus under the Constitution by way of High Court application. Where a person was arrested, under Offences against the State legislation, and the true intent was to hold him in pending extradition proceedings, the arrest was held to be unlawful.
Extradition being based on international agreements and established in the context of international agreements, the courts may look at, the preparatory legislative documents, to a much greater extent than is the case with other legislation. It is a general principle that an international agreement should receive a liberal interpretation. It should be interpreted in a way that does not hinder the working and operation of the arrangements.