THE SUPREME Court has drawn attention to a "badly drafted" provision in the European Arrest Warrant Act 2003 which led to the court yesterday refusing orders for the extradition of a Lithuanian man and a Latvian man.
In judgments on separate proceedings, the court refused to extradite Saulius Ferenca to Lithuania to serve a sentence on fraud offences and also refused to extradite Ivans Desjatnikovs to Latvia on charges relating to allegedly taking pawnshop money for himself.
Chief Justice John L Murray said this was "not the first time" he had felt it necessary to "comment adversely" on some provisions of the Act.
Ferenca's extradition was sought to serve a single composite sentence of two years and nine months imposed for three separate offences falling broadly within a category of fraud. The offences allegedly involved Ferenca receiving from another person a bank card and handing it over to unidentified persons for the purposes of forging it.
A spokeswoman for the Department of Justice said while it does not comment on individual cases, "the department gives serious consideration to all court rulings and keeps the relevant legislation under review".
The Chief Justice said the Ferenca case was principally concerned with the meaning and effect of Section 38.1.b of the 2003 Act which provides for a third alternative basis on which an offence may be one for which extradition can be ordered.
This third alternative arose only because the fraud offences as set out by the Lithuanian authorities did not correspond with offences here. Neither had the Lithuanian authorities specified that they were offences falling within Article 2 of the 2002 EU Framework Decision governing extradition between EU member states.
Section 38.1.b states a person "shall not be surrendered . . . unless . . . the offence is an offence that consists of conduct specified in . . . [Article 2.2 of the Framework Decision]". Article 2.2 lists a series of offences for which surrender may be ordered.
The judge said there was "great difficulty" in attributing any effective meaning for the purposes of the Act to Section 38.1.b. It was unclear what was meant as Article 2.2 did not specify "conduct" for which surrender may be ordered but instead specified "offences" as they are "defined by law of the issuing member state".
The judge said the name or label given to an offence says nothing relating to the conduct deemed by the national law of the issuing state as constituting a crime.
For example, Article 2.2, while allowing for surrender for the offence of "racism", did not specify what conduct constitutes the offence of racism.
The flaw in Section 38.1.b of the 2003 Act was that there was no conduct specified in Article 2.2 and this made it impossible for a court, in considering an application for extradition in these circumstances, to decide that an offence in a warrant consists of "conduct specified" in Article 2.2.
Section 38.1.b was simply a "badly drafted" provision which can have no meaningful effect in the operation of the Act relating to European Arrest Warrants, the judge said.
While two of the three broad fraud offences for which Ferenca received a single sentence were offences in which an order for surrender might be made, such an order could not be made for the third offence for the reasons set out, the judge said.
The Supreme Court could not apportion part of his sentence among the three offences so as to extradite him purely to serve that part of the sentence for which he could legitimately be extradited.
In those circumstances, the extradition was refused.
In her judgment on the Desjatnikovs case, Ms Justice Susan Denham ruled that the 2003 Act does not give the Irish courts the option to look behind the decision of the state seeking extradition - in this case Latvia - and decide whether the act described - relating to allegedly taking money from a pawnshop and failing to repay debts - is an offence under the law of that state.
The offence in this case had to be identified by Latvia on the list set out in Article 2.2 of the Framework Decision and ticked or marked on the European arrest warrant but that was not done, the judge said.
Given that she had also earlier ruled there was no corresponding offence here for that set out in the warrant, the extradition must be refused.