Minister for Justice v Strzelecki: Court rejects narrow interpretation of “surrender” in the European Arrest Warrant Act

prisonWhere a person has been surrendered under a European arrest warrant and the issuing state seeks consent to prosecute the suspect on additional charges to those for which the surrender was granted, the issuing state is in effect seeking to have the terms of surrender amended to include permission to prosecute on additional charges. Therefore s 37 of Part 3 of the European Arrest Warrant Act 2003, which provides the grounds under which the courts must prohibit surrender, is applicable (judgment).

Background

In July 2102 the High Court made an order under the 2003 Act surrendering Strzelecki to the Republic of Poland. In December 2012 Poland requested permission, under s 27 of the 2003 Act, to prosecute him for two additional charges. In the High Court, Strzelecki objected to the application based on human and fundamental rights issues: s 37 of Part 3 of the 2003 Act provides grounds under which the courts must prohibit surrender (where surrender would be incompatible with the State’s obligations under the ECHR, Charter of Fundamental Rights of the European Union, the Constitution, etc,). The High Court held that, as he had already been surrendered to Poland, and as Poland is a signature to the ECHR and a member of the EU, Strzelecki could not raise the issues which Part 3 of the 2003 Act list as grounds to prohibit surrender. Strzelecki appealed that finding to the Supreme Court.

Sections 22(7) and (8) of the 2003 Act:

(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to –
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.
(8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.

Supreme Court

Denham CJ, with whom the other four justices concurred, held that the High Court had erred in excluding Strzelecki from raising fundamental rights issues. An application to prosecute on additional charges is a request that the consent to surrender include prosecution for those additional offences. Therefore s 37 of the 2003 Act is applicable [35]. That means that he can raise issues of human and fundamental rights. However, the European arrest warrant procedure is based on mutual respect between Member States, and, as the relevant case law establishes, the High Court may determine that the courts of the requesting state may be better placed to adjudicate on those issues.

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