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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tifrac v Romanian Judicial Authority [2018] EWHC 1909 (Admin) (25 July 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1909.html Cite as: [2018] EWHC 1909 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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TIFRAC |
Appellant |
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- and - |
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ROMANIAN JUDICIAL AUTHORITY |
Respondent |
____________________
(instructed by AM INTERNATIONAL SOLICITORS) for the Appellant
MR BENJAMIN SEIFERT
(instructed by CPS EXTRADITION) for the Respondent
Hearing dates: 19 July 2018
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Crown Copyright ©
MR JUSTICE OUSELEY :
The particulars in the EAWs
"64. Given that article 8(I)(c) of the Framework Decision lays down a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid, failure to comply with that requirement must, in principle, result in the executing judicial authority refusing to give effect to that warrant.
65. That being so, before adopting such a decision, which, by its very nature, must remain the exception in the application of the surrender system established by the Framework Decision, as that system is based on the principles of mutual recognition and confidence, the executing judicial authority must, pursuant to article 15(2) of the Framework Decision, request the judicial authority of the issuing member state to furnish all necessary supplementary information as a matter of urgency to enable it to examine whether the fact that the European arrest warrant does not state whether there is a national arrest warrant may be explained either by the fact that no separate national warrant was issued prior to the issue of the European arrest warrant or that such a warrant exists but was not mentioned."
"67. In the light of the foregoing considerations, the answer to question 2 is that article 9(I)(c) of the Framework Decision is to be interpreted as meaning that, where a European arrest warrant based on the existence of an "arrest warrant" within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if, in the light of the information provided pursuant to article 15(2) of the Framework decision and any other information available to it, that authority concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant."
"39. The better interpretation of para 64 of Bob-Dogi appears to be that article 8(I)(c) requires an EAW to evidence on its face a prior separate national arrest warrant in order to comply with article 8(I)(c), and that it is not sufficient that such a prior separate arrest warrant actually exists. However, despite that words "shall contain" used by article 8(I) and the language of "requirement" used by the Court of Justice, it is also clear that the court was not treating the identification on the face of the EAW of a prior separate national arrest warrant as an absolute condition of the EAW's validity. On the contrary, the executing court was obliged to investigate the underlying factual position further, by requesting further information under article 15. Whether the EAW was to be treated as valid and enforceable would depend not on how it was expressed, but on the underlying factual question whether or not it proved actually to be based on a prior separate national arrest warrant.
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45. Accordingly, even if a reference to the activating decisions should strictly have been made in the EAWs alongside the reference to the judgment as enforceable, this cannot as a matter of European law mean that the EAWs should be treated as invalid or incapable of being executed. That being so, I consider that the same position must once again carry through into section 2(6) OF THE 2003 Act. Section 202 must be understood as enabling the same sort of co-operation and regularisation of formal, rather than substantive, defects appearing in an EAW that article 15 of the Framework Decision contemplates."
"74…Are the date, place and nature of the offence, and the question of maximum sentence, to be regarded as "formal" or "substantive" matters? They are required matters. The effect of the two key recent decisions is, we conclude, that missing required matters may be supplied by way of further information and so provide a lawful basis for extradition.
75. None of this means that extradition can properly be achieved on the basis of a "bit of paper". In our view, there must be a document in the prescribed form, presented as an EAW, and setting out to address the information required by the Act. An otherwise blank document containing the name of a requested person, even if in the form of an EAW, will properly be dismissed as insufficient without more ado. The system of mutual respect and co-operation between states does not mean that the English court should set about requesting all the required information in the face of a wholly deficient warrant. Article 15(2) of the Framework Decision expressly concerns itself with "supplementary" information, and can properly be implemented with that description in mind. That will of course include resolution of any ambiguity in the information provided. It will include filling "lacunae". The question in a given case whether the court is faced with lacunae or a wholesale failure to provide the necessary particulars can only be decided on specific facts.
76. We note the indication in Bob-Dogi's case [2016] 1 WLR 4583, para 65, that a court has a duty to make further inquiries as to further information before declining to execute a warrant. We accept that there is an obligation on a court to consider each case, before ordering extradition, whether the necessary information is present. We accept that, subject to any exception which may arise, an English court may inquire as to further information, before concluding against extradition. However, a number of other points should be stressed in this context."
Double jeopardy
Conclusion