UDICIAL)NTERPRETATIONANDTHE4HIRD0ILLAR · 2005. 7. 19. · udicial)nterpretationandthe4hird0illar...

Judicial Interpretation and the Third Pillar

European Journal of Crime

Criminal Law and Criminal Justice 2005 ndash 2 255European Journal of Crime Criminal Law and Criminal Justice Vol 132 255ndash283 2005

copy Koninklijke Brill NV Printed in the Netherlands

Gerard Conway


IRELANDrsquoS ACCEPTANCE OF THE EUROPEAN ARREST WARRANT AND THE GOumlZUumlTOK AND BRUumlGGE CASE

1 INTRODUCTION

The Framework Decision on a European Arrest Warrant (EAW)1 by the European Union (EU) is one of the most significant initiatives of the EU to date in criminal matters As well as setting common standards in a sphere hitherto largely reserved for more conventional multilateral cooperation the Framework Decision effected a number of departures from the usual principles governing extradition2 Overall the chief purpose of the Framework Decision was to speed up and facilitate the extradition or surrender of suspects between member states3 Perhaps the most significant change is the relaxation of the double criminality rule which requires that the offence for which a suspect is sought to be extradited be a criminal offence in both the requesting

BA (Limerick) MJuris (Uppsala) Barrister-at-Law (King s Inns Ireland) currently Legal Research Officer Office of the Director of Public Prosecutions Ireland All views expressed are solely attributable to the author personally I am grateful to Sadbh Byrne of the staff of the Commission of the Oireachtas for providing copies of Houses of the Oireachtas debates and to Richard Crowe of the Academy of European Law Trier for providing a reference

1 Council Framework Decision of 13th June 2002 2002584JHA 2 The Framework Decision in general uses the term surrenderʼ rather than extraditionʼ but the two

appear to be equivalent see M Plachta ʻEuropean Arrest Warrant Revolution in Extraditionʼ 11 European Journal of Crime Criminal Law and Criminal Justice (2003) pp 178-194

3 The European Convention on Extradition Paris 13th June 1957 ETS no 024 was the first European-wide attempt to codify common standards its chief innovation was the relaxation of the requirement that a requesting state establish a prima facie case for extradition



2005 ndash 2 Criminal Law and Criminal Justice256

and the requested state4 Some concern has been expressed for example that the extra-territorial scope of the EAW combined with the absence of a double criminal-ity rule for a range of offences could have the effect of rendering a person subject to criminal sanction for actions not criminalized in the state where they occur5 For civil law jurisdictions a further very significant aspect of the new measure is that it requires the surrender of nationals6 Other novel aspects are provisions concerning the optional abolition of the rule of speciality the assignment of most functions of national authorities to judicial personages rather than the executive and the non-application of the political offence exception to extradition

In that context it is perhaps not surprising that a number of member states made declarations to clarify the potential scope of the new measure One declaration made by Ireland during intergovernmental negotiations was to the effect that Ireland would only execute an EAW for the purpose of bringing a person to trial or for the purpose of executing a custodial sentence or detention order The declaration was intended to make clear Irelandʼs opposition to extradition or surrender for the purpose of investigative detention7 In s 11(3) of the European Arrest Warrant Act Irelandʼs implementing legislation the Irish government has sought to give effect to this declaration Although it does not appear to have made an equivalent declaration during the negotiations

4 Article 2(2) provides for the relaxation of double criminality in relation to a lengthy list of of-fences

5 See Lord Filkin Parliamentary Under-Secretary of State for the Home Office in the House of Lords ndash Lords Hansard 1st May 2003 col 855 (referring to ss 64(2) amp 65(2) of the UK Extradition Bill 2003 the UK implementing measure) s 32 Irish European Arrest Warrant Act 2003

6 See Plachta op cit7 In introducing the European Arrest Warrant Bill 2003 to the Daacuteil (the lower chamber of the Irish

parliament) the Irish Minister for Justice Equality and law Reform stated that the relevant provi-sion of the Bill (s 9(3) later shortened and inserted as s 11(3)) stated ldquohellip I draw attention to the statement Ireland made when the Framework Decision was adopted The text of that statement is as follows ʻIreland shall in the implementation in domestic legislation hellip [quoted infra in text] hellip or for the purpose of executing a custodial sentence or detention orderʼ The important point to note is that in cases where the person has not yet been convicted the emphasis is on ensuring that the person is being sought to face trial This is designed to ensure that persons are not surrendered in custody for investigative purposes with the possibility of prolonged detention before a decision is taken whether to charge that person This is the substance of the Irish declarationrdquo (Daacuteil Debates 5th December 2003 col 893) The point was reiterated by the Minister of State in debate (id col 932) Subsequently the Minister stated that the provisions of s 11(3) are ldquosupposed to reflect the declaration made by Ireland at the time the framework decision was adopted that we would not extradite people for other purposes such as participating in a criminal inquiry helliprdquo (Daacuteil Debates 17th December 2003 col 941)



Criminal Law and Criminal Justice 2005 ndash 2 257

the UK government has also sought to give effect to the principle that extradition or surrender under an EAW will be for trial only and not for investigation8

This principle has some support in existing extradition practice although there does not appear to be that much authority from Ireland9 or the UK10 specifically on the point It is consistent with the principle that an accused is entitled to a speedy trial for which there is more considerable authority The latter principle is guaranteed in relation to criminal trials at a constitutional level in Ireland11 and the United States12 for example and it is provided for in Articles 5(3) and 6 of the European Conven-tion on Human Rights (ECHR)13 This concern with investigative detention is also reflected in the relatively short periods of pre-trial detention permitted in Ireland by statute14 It might also be argued that extended detention pending the completion of the investigative phase of a trial was a form of preventive detention unless a fairly high threshold of evidence was to apply to arrest in the first place pending the completion of investigation It seems likely that preventive detention would be unconstitutional in Ireland15 In that context Recital 12 of the Framework Decision provides inter alia that the Framework Decision does not prevent a member state from applying its

8 Extradition Act 2003 s 2(3) In the House of Lord Lord Filkin Parliamentary Under-Secretary of State for the Home Office noted regarding s 2(3) of the UK Bill that ldquohellip The Bill for the first time makes it clear that extradition to another country EU country will be possible only for the purpose of putting a person on trialrdquo(italics added) (Lords Hansard 1st May 2003 col 854)

9 See Brien v King [1997] 1 ILRM 338 at 343 (High Court) Michael Forde Extradition Law (Round Hall 2nd ed 1995) pp 81-82

10 See the comments of Lord Filkin supra note 811 Article 381 of Bunreacht na hEacuteireann (the Constitution of Ireland) (right to a trial in due course of

law) The right is also protected at common law See eg Don Knowles v Judge Leo Malone and Ors High Court Unreported 6th April 2001 McKechnie J PC v Director of Public Prosecutions [1999] 2 IR 25 No absolute time periods are set out in caselaw and much depends on the facts of each case Dermot Walsh Criminal Procedure (Round Hall 2002) p 23 Although an accused will often have to show prejudice arising for a trial to be halted on grounds of delay the courts have also recognised a category of unconscionable delay as justifying the termination of proceedings irrespective of whether the delay prejudices the conduct or efficacy of the defence

12 The Sixth Amendment to the US Constitution13 ETS No 5 213 UNTS 222 entered into force September 3 1953 Article 6 states inter alia that

the hearing by a court must take place ldquowithin a reasonable timerdquo14 The general requirement is that a suspect must be brought before a judge and charged as soon as

is practicable (s 15 Criminal Justice Act 1951) It is now possible to detain a person for certain (again relatively short) periods without charging (see eg s 4(2) Criminal Justice Act 1984 (as amended) which applies in relation offences punishable by a period of five years imprisonment or more s 30 Offences Against the State Act 1939)

15 See eg John Gallagher (No 2) v The Director of the Central Mental Hospital (No2) [1996] 3 IR 10 at 18-19 34 See also Article 5(1)(c) amp (3) of the ECHR




constitutional rules relating to due process This provision reflects the position in Irish law whereby the State is prohibited from extraditing a suspect where the treatment of the suspect in the requesting state would amount to a denial of or an infringement constitutional rights or fair procedures in Irish law16

This article discusses the potential effects of Ireland s declaration stating its opposi-tion to investigative detention on the interpretation of the Framework Decision and of Irelandʼs implementing legislation in the broader context of judicial interpretation of EU Third Pillar measures It is argued that what is essentially the public international law nature of the Third Pillar may justify reliance on the declaration in any interpreta-tion of Irelandʼs implementing legislation by the European Court of Justice (ECJ) (assuming its jurisdiction) which would contrast with the lack of weight traditionally accorded such declarations in EC law This interpretive reliance on the declaration is it is suggested consistent with a more restrained approach to adjudication in Third Pillar matters than that which has often characterised the interpretive methodology of the ECJ in the First Pillar Assuming that weight is given to Ireland s declaration by the Irish courts in the interpretation of the Irish implementing legislation it seems likely that there will be implications in particular for those other parties to the Framework Decision from the civil law tradition where there is no clear dividing line between the investigative and trial phases of a case The interpretive issues relating to the declaration are examined in light of domestic Irish law and of ECEU and international law ndash three legal systems of which the Framework Decision is a part It is sought to place the issue in the broader context of the proper scope of the interpretive power of the ECJ as a constitutional court especially in the context of the debate as to the Constitution for Europe and mirroring the debate in the US as to the interpretation of its Constitution and Bill of Rights by US courts Finally the recent decision of the ECJ in Goumlzuumltok and Bruumlgge17 the first decision of the ECJ on a Third Pillar issue is examined and it is argued that the same concern with judicial restraint in constitutional interpretation may have justified a different legal analysis to that preferred by the ECJ and a different result in the case

2 IRELANDrsquoS DECLARATION ON ACCEPTANCE OF THE EAW

The text of Irelandʼs declaration is as follows

Ireland shall in the implementation in domestic legislation of this Frame-work Decision provide that the European arrest warrant shall only be

16 See eg Russell v Fanning [1988] IR 505 at 531 Finucane v McMahon [1990] 1 IR 165 at 216-217

17 Joined Cases C-18701 and C-38501 Article 35 TEU Reference 11th February 2003




executed for the purposes of bringing that person to trial or for the purpose of executing a custodial sentence or detention order18

The declaration appears to have been formally made to the Justice and Home Affairs Council it is not formally attached to the Framework Decision The precise status of Framework Decisions as legal instruments may be open to debate given that they are instruments within the ambit of the Third Pillar19 which might be viewed as something of a half-way house between normal public international law cooperation and the Community method of the First Pillar (discussed further below) However in substance the Third Pillar appears to be essentially a conventional public international framework but operating within the institutional context of the EU (discussed further below) In that context a Framework Decision is comparable to an international treaty Although the Irish declaration is not formally binding it is evidence of the intent of the authors of the Framework Decision (the latter appears to be the chief effect of a formal declaration attached or relating to an international agreement20)

The question arises as to the weight to be accorded to it in interpreting Irelandʼs implementing legislation This question is somewhat novel and complex because it involves interpretation of an instrument that simultaneously has force in international EU and domestic law The interpretive approaches that have traditionally been applied in each of these contexts may not always render consistent results when applied to the same instrument

The Framework Decision itself in Article 1 states that surrender of a suspect pursu-ant to a warrant shall be ldquofor the purposes of conducting a criminal prosecutionrdquo and Ireland s declaration may seem merely to reiterate this provision However depending on how strictly the Irish courts were to construe the Irish implementing legislation in order to give effect to Irelandʼs declaration during intergovernmental negotiations there is a potential at least that legal systems where there is no clear or simple divide between the investigative and prosecutorialtrial stages of a criminal case may have difficulty in satisfying the Irish requirement (ie if the approach is taken by the Irish

18 As stated by the Irish Minister for Justice Equality and Law Reform in the Daacuteil Daacuteil Debates 5th December 2003 col 893

19 See generally Eileen Denza The Intergovernmental Pillars of the European Union (Oxford Univ Press 2002)

20 See eg the entry for declaration in the UN Treaty Handbook available on the Web site of the UN at lthttpuntreatyunoteorgEnglishTreatyHandbookhbframesethtmgt International Law Commission in its project on reservations to treaties see eg Third Report on Reservations to Treaties adopted at the Commissionʼs fiftieth session in 1998 ACN4491 and Corr 1 ACN4491Add1 Add2 and Corr1 Add3




courts that the Irish implementing legislation prohibits the surrender of a person where some investigative aspects of a case have are outstanding)21

3 DIVIDING A CRIMINAL CASE INTO INVESTIGATIVE AND PROSECUTORIAL STAGES

Irelandʼs declaration appears to presuppose the possibility of dividing the stages of the criminal process into investigative and trial phases While this may reflect at least in general Irish and common law procedure it does not sit so well with the civil law tradition in criminal maters The general differences between the two systems are well noted22 One of these differences relates to the rule of a judge in pre-trial matters ie the stage in the criminal process before the ʻtrial proper begins in open court and in the investigative aspects of a case as the following passage from a recent textbook well illustrates

At the preliminary stage of the criminal trial there is a fundamental distinc-tion between those systems where the judge may act of his own motion in using his powers of investigation and those where he may nothellip It seems better to think in terms of a sliding scale of investigative powers exercised by judges subsidiary but still present in England while in Italy they are nowadays available to the trial judge more than used to be the case and in Germany they are among the most significant powers exercised by the judge at trial In Belgium and France these powers are available both to the juges dʼinstruction responsible for the preliminary proceedings and to the judge who presides at the hearing where judgment is given23

21 Noted by eg Niall Fennelly (former Advocate General) ʻThe Role of the European Courts and National Courts in EU Criminal Justice Mattersʼ The Impact of EU Law on National Criminal Law and Practice ndash Paper presented at conference organised by the Irish Centre for European Law and the Office of the Director of Public Prosecutions of Ireland Dublin 12th-13th June 2003 pp 11-12

22 See eg Christine Van Den Wyngaert et al (eds) Criminal Procedure Systems in the European Community (Butterworths 1993) Mireille Delmas-Marty amp John R Spencer (eds) European Criminal Procedures (Cambridge Univ Press 2002)

23 Denis Salas The Role of the Judgeʼ in Delmas-Marty amp Spencer id pp 506 509 For example in France at the trial properʼ after the role of a juge dʼinstruction has been completed the trial judge may adjourn the case and decide to hear witnesses in person if he or she is not satisfied with the contents of the police report or dossier in the case see eg Albert V Sheehan Criminal Procedure in Scotland and France (HMSO 1975) p 74




In that context a strict interpretation of the requirements of Irelandʼs declaration to the effect that a suspect could not be handed over where investigative aspects of the case were still ongoing could potentially lead to the refusal to deliver suspects to many jurisdictions until a trial was virtually complete and could thereby substantially negate the object and purpose of the EAW procedure24

4 THE DOMESTIC IRISH CONTEXT

Section 11(3) of Irelandʼs implementing legislation the European Arrest Warrant Act 2003 is the provision designed to give effect to Irelandʼs declaration

Where a European arrest warrant is issued for a person who in the issuing state has not been convicted of the offence specified therein the European arrest warrant shall be accompanied by a statement in writing of the issuing judicial authority that

(a) the person has been charged with the offence concerned and a decision to try him or her for the said offence has been made or

(b) the person has not been charged with the offence concerned and a decision to charge him or her with and try him or her for the offence has been made

by a person who in the issuing state or part thereof performs functions the same as or similar to those performed in the State by the Director of Public Prosecutions

This wording does not mirror exactly Irelandʼs declaration ie s 11(3) does not directly state that Ireland may surrender only for the purpose of bringing a person to trial The critical juncture in proceedings identified is that the person of whom surrender is sought be charged or that a decision already be made about that charge At first glance it may seem that this has struck a good balance between different criminal procedural systems since the charging of a suspect in most systems might be thought to represent a point at which an investigation has substantially advanced even if it is not fully completed and when a trial proper is more or less ready to begin It could be thought that since all signatory states to the Framework Decision on the EAW have

24 If the requesting state was then to go ahead with a trial where an Irish court refused surrender pursuant to an EAW until all investigative phases of a trial were complete the proceedings could in large part amount to a trial in absentia However s 45 of the Irish Act provides (as provided for in Article 5(1) of the Framework Decision) that a person tried in absentia will only be surrendered pursuant to an EAW if they are given a retrial ndash but presumably a surrender for the purposes of a second trial would also be prevented for the same reason




ratified the ECHR which provides in Articles 5(3) and 6 for a trial within a reasonable time the problem of investigative detention would not seem to arise25

However a number of possible difficulties could be identified in this regard In many civil law systems charging does not always occur relatively close to the trial proper26 In some the period of time between charging and the final outcome of a trial may be relatively long even for up to several years27 There is also the perhaps obvious problem that a person could be charged or be subject to a decision on charging purely for the purpose of satisfying s 11(3) The person could then be surrendered pursuant to an EAW and end up spending a long period in prison awaiting the outcome of a trial while an investigation proper takes place which may take a relatively long period A person of whom surrender is requested could challenge the proceedings in the Irish courts on the basis that the requesting state was unlikely to or might not adhere to the underlying purpose of s 11(3) or that the request represented an abuse of process by the requesting state28 ie could challenge it on the basis of proper construction of the statute Apart from the statutory provisions themselves a person contesting an EAW request could rely on the constitutional and common law guarantee of a right to trial with reasonable expedition and on the apparent unconstitutionality of preventive detention to argue that the State was prohibited from acquiescing and assisting in a criminal justice process that could or would entail a violation of these interests29 The constitutional guarantee of a right to trial with due expedition in the Irish Constitution has precedence over the guarantees in the ECHR30 Therefore if the Irish constitutional requirements in this area are interpreted more strictly in favour of an accused the fact a requesting state is in conformity with Article 5(3) of the ECHR does not mean

25 It might be argued that since s 11(3) of the Irish implementing legislation makes reference to charging it is only Article 6(1) that is relevant to Irish implementation of the EAW However charging in Ireland must occur relatively quickly after arrest (supra note 14) so both Articles 5(3) and 6(1) of the Convention appear to be relevant in principle See also Soering v UK 111 EHRR 439 [1989] where the European Court of Human Rights appeared to indicate that generally a potential failure to vindicate Convention rights could justify a refusal of extradition (at para 85)

26 See eg W v Switzerland A 254-A (1993) where the time lag between charging and the trial was four years (Switzerland is not of course in the EU but it is in the civil law tradition)

27 Regarding Switzerland for example see eg ibid regarding France see eg Valeacuterie Dervieux et al ʻThe French systemʼ in Delmas-Marty amp Spencer op cit p 238

28 For example evidence could be presented concerning the potential time periods between initial charging and conclusion of a trial

29 Irish caselaw establishes that the State has an overriding duty to prevent the infringement of personal rights its duty is not confined to vindicating those rights after the fact of their infringement see eg ESB v Gormley [1985] IR 129 at 151

30 See s 3(1) European Convention on Human Rights Act 2003




that the requirements of Irish law are satisfied31 In this context it is worth noting that the European Court of Human Rights has applied a broad margin of discretion to states in applying Article 5(3)32 reflecting the diverse procedural traditions in the area The Court for example has held that a four-year period of pre-trial detention was not in breach of Article 5(3)33 which is highly likely to be a lesser requirement on the prosecution that that under Article 381 of the Irish Constitution34 In the context of these potential constitutional and common law grounds for objecting to surrender pursuant to an EAW an Irish court might be required to look behind the issuing of a statement prepared by the requesting state and to adopt a closer standard of review to satisfy the requirement of s 11(3) ie to determine whether or not the statement represented substantive as opposed to merely formal compliance with s 11(3)

A further potential difficulty relates specifically to the wording of s 11(3) apart from the constitutional context just identified This is because it draws a parallel between the role of the official charging or deciding upon a charge in the requesting State and the role of the Director of Public Prosecutions (DPP) in Ireland In Irish criminal procedure the DPP is the public prosecutor35 and decides normally once a police investigation has been completed and having considered more or less all of the evidence gathered by the police whether or not to initiate a prosecution what charges to prefer and what evidence is to be presented in trial against a suspect In most cases the role of the DPP in relation to charging takes effect more or less immediately prior to the trial proper (if there is a trial) and after the investigation is more or less complete In brief terms the Office of the DPP does not carry out any investigation itself though it may advise Gardai on the legal or evidential aspects of an investigation The role of the DPP is essentially to determine whether or not to prosecute what should be the mode of trial (whether summary or before a jury) what evidence is to be admitted for the prosecution and generally to direct the prosecution

31 See also R v Secretary of State for the Home Department ex parte Rachid Ramda [2002] EWHCA 1278 (Admin) where the High Court of England amp Wales held that the mere fact that the requesting state is a signatory to the ECHR does not mean that extradition will necessarily be compatible with human rights (para 9)

32 See eg P van Dijk amp GJH van Hoof et al Theory and Practice of the European Convention on Human Rights (Kluwer 3rd ed 1998) p 370

33 W v Switzerland supra note 26 Article 5(3) of the ECHR takes effect from the point of arrest Article 6(1) is the governing provision once a person has been charged

34 Supra note 1435 Prosecution of Offenders Act 1974 Annual Report of the Office of the Director of Public Prosecu-

tions 1999 (Office of the DPP 2000) pp 8-11 available on the Web at lthttpwwwdppirelandiepublicationspublicationscat1gt James Casey The Irish Law Officers Roles and Responsibilities of the Attorney General and the Director of Public Prosecutions (Round Hall 1996)




in court It could be argued that the effect of the reference in s 11(3) to the role of the DPP is to require that the official charging an accused in a requesting state must be acting at a similar stage in proceedings to that of the DPP in Ireland (ldquohellip performs functions the same as or similar to those performed in the State by the Director of Public Prosecutionsrdquo) and that this requirement is not met where the official in the requesting state prefers a charge at a much earlier stage in the proceedings when much of the investigative work has yet to be completed If the objection were to be made to this latter argument that the important element in s 11(3) is the fact that a suspect has been charged and that the reference to the DPP is therefore incidental it is difficult to see what purpose at all the reference in s 11(3) to DPP would have ndash since the requirement that a charge be preferred or decided upon by the requesting state could have been stated without reference to the role of the DPP In this regard it is a principle of Irish law that the words of a statute should not be interpreted so as to render them superfluous unless there is some indication that the words were meant as mere surplusageʼ ie as simply an elaboration of and subsidiary to other words36 There does not appear to be any such indication here

It appears therefore that there is a reasonable argument to be made that the provi-sions of s 11(3) are on their own terms ambiguous (without regard to the constitutional and common law issues discussed above) ndash ie that the scope of its application to pre-trial matters is potentially unclear and it is at this point that Ireland s declaration may become relevant in concrete terms to the interpretation of the subsection A more detailed discussion of the context of statutory interpretation in Ireland illustrates this

The normal rules of statutory construction37 followed in Ireland are first that words should be given their ordinary meaning and second that a provision should be interpreted consistently with the overall legislative framework of which it forms part which includes other both prior and subsequent enactments38 The latter principle would appear to be a modern development of the so-called mischief rule whereby statutes were interpreted in light of the previous common law and the mischief or defect that the statute was intended to remedy39 More explicitly purposive interpretation has become more prevalent in the common law at least in the UK and in Ireland significantly as a result of the influence of EC law40 More traditionally another rule

36 See eg Re Deauville Communications Worldwide Ltd [2002] 2 IR 32 at 39 See also eg the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Stanislav Galic IT-98-29-T Trial Chamber I 5th December 2003 at para 91

37 See generally eg Francis Bennion Statutory Interpretation (London 2002)38 See Director of Public Prosecutions v Joseph Dillon [2002] 4 IR 501 at 505-50639 Bennion op cit pp 783-807 40 K Zweigert amp H Koumltz An Introduction to Comparative Law (Oxford 1998) pp 265-268




of construction was the so-called golden rule which permitted a non-literal meaning to be given to a statute taking account of its purpose where a literal interpretation would lead to absurdity41

The analysis suggested above of s 11(3) of Ireland s implementing legislation relies primarily on the ordinary meaning of its words which reflects the primary canon of construction The second canon of construction identified that a provision should be interpreted consistently with other relevant provisions seems to offer less specific guidance to the interpretation of s 11(3) The general context and purpose of the EAW compared to prior statutory provisions was to hasten and simplify extradition proceedings Therefore it might be concluded the simplest and least problematic interpretation identified above should be preferred ie that once a suspect has been charged or a decision as to charging has been made the requirements of s 11(3) are met However such an approach seems question-begging where first the plain words of the provision potentially prevent such a construction (eg because of the reference to the role of the DPP) and second where there are other important legal and constitutional interests specifically a prohibition on investigative detention or right to a trial with reasonable expedition that appear to militate against such a view

It has not been part of the common law tradition for courts to look to parliamentary statements or the travaux preacuteparatoires in interpreting a statute rather the notion of legislative intent and purpose has traditionally been regarded as being determinable solely through the text of the statute There has been some dilution of this approach in more recent times at least in the UK and to greater extent and over a longer period in the US42 the issue is not yet settled in Ireland43 However an exception has always applied in Irish law with respect to legislation implementing international agreements in which case the text of the international treaty or convention and of the travaux preacuteparatoires may be considered44 It is here that Irelandʼs declaration may be invoked since it was formally read into the parliamentary debate by the Irish Minister for Justice Equality and Law Reform and was stated by him to have been made by Ireland during the negotiations leading up to the signing of the Framework Decision45

41 Bennion op cit pp 783-80742 For UK authority see Pepper v Hart [1993] 1 ALL ER 42 For US authority see eg the review

of cases in A Scalia ʻCommon-Law Courts in a Civil-Law System The Role of United States Federal Courts in Interpreting the Constitution and Lawsʼ in A Scalia A Gutmann ed A Matter of Interpretation Federal Courts and the Law (Princeton 1998) pp 29-37

43 See Derek Crilly v T amp J Ferguson and John OʼConnor Ltd [2001] 3 IR 25144 Id Irelandʼs declaration can be invoked as an element of the travaux preacuteparatoires of the Framework

Decision if not qua parliamentary material although the reference to the declaration by the Minister during Oireachtas debates appears to the only publicly available text of it

45 Supra note 7




It is also significant that the declaration was made with a specific view to influencing the interpretation of the Framework Decision It is not a matter therefore of trying to discern a purpose or context from an overall reading of parliamentary material containing perhaps disparate or ambiguous statements but relying on a specific and explicit statement of legislative intent (discussed further below) Once admitted as a guide to construction Irelandʼs declaration as repeated in parliamentary debate would seem quite probative evidence of the Irish governmentʼs legislative intent in signing up to the Framework Decision

The issue then turns to interpreting the declaration itself it seems open to at least two contrasting constructions First the Irish courts could relatively loosely interpret the declaration to mean that a suspect can be surrendered once the trial stage of a case ie the stage where a judge becomes involved and proceedings take place in open court is ready to go ahead On this approach were little difficulty would arise in relation to other legal systems where a judge has an investigative function Surrender would be refused only where the police stage of investigation had yet to be completed and a judge had still to become involved Attributing such a meaning to it however would arguably denude it of any effect in terms of preventing investigative detention which is its purpose46 since in many civil law jurisdictions judges are involved in the investigative phases of proceedings This would also be inconsistent with the conventional sense of the term ldquotrialrdquo in Irish law47 An alternative interpretation that would give effect to Irelandʼs declaration would construe s 11(3) such that surrender of a suspect pursuant to an EAW would only be permissible where the investigative stage of a case was complete and a trial had begun within the understanding of the term trial in the Irish legal system ie where all the evidence has been gathered and it remains simply to present it in court for assessment and adjudication This would present the problem described above whereby surrender to many civil law jurisdictions might be rendered very difficult

That Irelandʼs declaration uses the term ldquofor trialrdquo rather than a negatively phrased obligation of ldquonot for investigationrdquo could be taken to suggest that in the context of the EAW a more flexible view of the effect of the declaration is warranted and surrender would be permitted where a trial encompasses an element of investigation A very literal reading of Irelandʼs declaration that precluded surrender where any investigative element of a case remained outstanding (on the assumption made above that ldquotrialrdquo excludes the investigative phase of a case) would arguably effectively make

46 Supra note 747 In eg Goodman International v Hamilton (No 1) [1992] 2 IR 542 it was stated in the Supreme

Court that ldquohellip the essential ingredient of a trial of a criminal offence in our law hellip is that it is had before a court or judge which has the power to punish in the event of a verdict of guiltyrdquo (at 588 per Finlay CJ)




extradition or surrender to many other civil law system impossible which was clearly not what was intended by a Framework Decision ratified by states that for the most part are within the civil law tradition Even the application of the traditional golden rule of statutory construction would discount such a conclusion Further in common law criminal procedure some elements of an investigation even if subsidiary would not necessarily be precluded while trial proceedings are in being48 for example if new and relevant evidence comes to light potentially indicating the innocence of an accused49

It may be that the principle of strict construction of penal provisions could be invoked to favour a wide-ranging interpretation of the requirements of Irelandʼs declaration in favour of the suspect which would be more restrictive of the application of the EAW procedure50 The principle of strict construction of penal provisions has often been affirmed in Irish case-law51As mentioned the influence of EC law has had the effect in common law systems of encouraging more purposive interpretation of statutes (as opposed to a more traditional literal approach)52 so perhaps this influ-ence would operate in the context of the EAW A more purposive interpretation that would seek to give better effect to the overall purpose and context of the adoption of the Bill which would suggest a looser approach that would facilitate extradition or surrender

The practical effect of all these interpretive considerations makes ascribing a precise meaning to s 11(3) less than straightforward Essentially taken cumulatively they would seem to suggest a balancing exercise53 While both the wording of s 11(3) and

48 Salas op cit49 The prosecution may enter a nolle prosequi during the proceedings the effect of which is to terminate

the trial where for example new exculpatory evidence comes to light The Gardaipolice are under a duty to seek out the latter see eg Braddish v The Director of Public Prosecutions and His Honour Judge Haugh [2001] 3 IR 127 James Bowes and Deirdre McGrath v The Director of Public Prosecutions [2003] 2 IR 25 it would seem illogical in principle if this duty were deemed to cease when trial proceedings began notwithstanding that other relevant evidence might remain to be obtained (this position seems also to have been implicitly acknowledged by the wording of s 52(1) Criminal Justice Act 1994)

50 Although arguably an extradition or surrender arrangement is not a penal provision as such it is a precursor to the application of a penal procedure and an element of the administration of criminal justice (see M Cherif Bassionui International Extradition United States Law and Practice (Dobbs Ferry 2002) pp 712-713) See also Soering supra note 25 at para 113

51 See eg CW Shipping Co Ltd v Limerick Harbour Commissioners [1989] ILRM 416 at 42652 Supra note 4053 Judicial restraint in constitutional interpretation (discussed further below) does not require that a

provision be read as narrowly as possible (Scalia op cit p 23) It entails that the interpretation be centred on what is reasonably and objectively contained in the text not where possible on subjective extra-textual or politically contestable policy factors




the import of Ireland s declaration would suggest that suspect should not be surrendered pursuant to an EAW unless the ʻtrial proper of the charges is more or less ready to take place and where the detention of the accused would not result in a violation of the requirement of a trial within reasonable expedition a more purposive or broadly teleological approach consistent with the tradition of First Pillar interpretation by the ECJ would facilitate the process of integration of EU criminal justice systems of the EAW and that would correspondingly downplay the significance of Ireland s declara-tion Balancing these potentially conflicting interpretive tendencies would suggest it is submitted a conclusion that the substance of s 11(3) requires in effect that an assurance is given to Ireland by requesting states that a trial will take place with due expedition following charging This would ensure that pro forma charging of a suspect would not be employed to circumvent the stated aim of Irelandʼs declaration and s 11(3) of Irelandʼs implementing legislation ie to prevent investigative detention For civil law states this might involve in practice a relatively quicker pre-trial phase than may be typical or at least permitted in their system

5 INTERPRETATION AT EU LEVEL ndash EUROPEAN AND INTERNATIONAL LAW INTERPRETIVE INFLUENCES

51 ECJ Jurisdiction

Under Article 35 TEU54 the ECJ may once a member state has made a declaration accepting its jurisdiction exercise jurisdiction to review the validity and interpretation of framework decisions (Article 35(1)) It is provided that (Article 35(6)-(7)) the Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article 34(2)55 The ECJ may be called on to assess and interpret the effect of Irelandʼs declaration and could reach an interpretation that would be inconsistent with that of the Irish courts (Ireland has not to date accepted ECJ jurisdiction over the Framework Decision)

54 Treaty on European Union (consolidated text OJ C 325 24th December 2002) (TEU)55 The procedure in Article 35(6) has never been used to date It appears that it could potentially be

used to circumvent the requirement for individual member states to consent to jurisdiction pursuant to Article 35(1) if it were to be held that a member state did not have to have previously accepted jurisdiction under Article 35(1) However the legitimacy of such an approach to Article 35(6) might be open to question since it would effectively negate the requirement in Article 35(1) for member state consent to jurisdiction




52 Interpretation in ECEU and International Law Compared

The issue of EC jurisdiction over the Third Pillar and the likely approach the ECJ would take to interpretation in the specific context of the Third Pillar raises a number of constitutional-type issues in the context of EU law These revolve around the status of the Third Pillar (and the Second Pillar) with respect to the First Pillar or the European Community In international law terms the EC or First Pillar is often stated to be a sui generis creation and as creating a new legal order or system56 In this view the EC is a unique ʻsupranational body rather than merely an international organisation in the conventional sense This unique or supranational (as opposed to intergovernmentalʼ) character relates to the transfer to Community bodies such as the Commission and the ECJ of governmental powers normally associated with sovereign states Simma lists four features of the EC legal order as well as Article 292 ECT57 as evidence of the extent of the transfer of governmental authority to EC institutions (1) compulsory jurisdiction of the ECJ (2) deliberation before the Council of the EC (3) secondary legislation dealing with a breach of Treaty obligations and its consequences and (4) the direct effect of Community law58 In particular the role of the ECJ in developing the doctrines of direct effect59 and supremacy60 (which are not explicitly set out in the Treaties)61 through an expansive approach to interpretation acted as a driving force behind integration when the other institutions (the Commission and the Council)

56 See eg Case 2662 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 at 12 Case 664 Costa v ENEL [1964] ECR 585 at 593 For a contrary view see eg A Marschick ʻToo Much Order The Impact of Special Secondary Norms on the Unity and Efficacy of the International Legal Systemʼ 9 European Journal of International Law (1998) pp 212-239 p 232

57 Article 292 EC states that member states undertake not to submit a dispute concerning the inter-pretation or application of the Treaty to any method of settlement other than those provided for therein

58 B Simma Self-contained Regimesʼ 16 Netherlands Yearbook of International Law (1985) pp111-136 p 125 See also generally M Soslashrensen ʻAutonomous Legal Orders Some Considerations Relating to a Systems Analysis of International Organisations in the World Legal Orderʼ 32 International and Comparative Law Quarterly (1983) pp 559-576 J Weiler ʻThe Community System the Dual Character of Supranationalismʼ 1 Yearbook of European Law (1981) pp 267-306 P Hay Federalism and Supranational Organisations (Illinois 1966)

59 Van Gend en Loos supra note 56 at 12-1360 Id Costa v ENEL supra note 5661 Another prominent example of judicial activism by the ECJ is the development of the doctrine of

parallelism starting with Case 2270 Commission v Council [1971] ECR 263 (the ERTA Case) The effect was to exclude member state competence to conclude such treaties or agreements with third states where internal Community measures amounted to a common policy




were relatively inactive This is unusual in international law terms62 in that the Court developed its own idea of the goals of integration and interpreted EC law very creatively independently of the intention of the parties to the Treaties

In general it seems fair to say that the approach of the ECJ has often favoured the effects of integration as against any assertion of member state independence or difference63 this approach arguably goes beyond a conventional purposive approach to interpretation that is sometimes found for example in common law cases The latter take purposive to mean by reference to a particular statute or perhaps a specific series of statutes Though the distinction is one of degree the latter are teleological in a narrower and more text-based sense not in the broad policy-oriented sense of teleological interpretation employed by the ECJ whereby the purpose identified is a broad goal of the ʻunity or ʻeffectivenessʼ for example of EC law

This is significant with respect to the EAW because this interpretive approach of the ECJ could be said to have related to the unusual character of the Community or First Pillar as it now is The Second and Third Pillars in contrast to the First Pillar are more conventional public international instruments in that member state authority is preponderant relative to that of the Community institutions Under the TEU the jurisdiction of the ECJ is comparatively limited with respect to the Second and Third Pillars being consensual with respect to Third Pillar preliminary rulings64 (a provision comparable to the consensual jurisdiction of the International Court of Justice) and generally excluded under the Second Pillar unanimous voting is generally required in the Council65 the legal instruments adopted are not attributed with direct effect (or supremacy) and the flexible cooperation procedure introduced at Maastricht has been consolidated at Amsterdam and Nice66 This reflects the greater sensitivity of

62 Soslashrensen op cit p 573 citing H Kutscher Thesen zu den Methoden der Auslegung des Gemein-schaftsrechts Aus der Sicht Eines Richters (Methods of Interpretation as Seen by a Judge at the Court of Justice) (Muumlnchen 1976) Weiler op cit pp 279-280 See also KPE Lasok amp Tomothy Millett Judicial Control in the EU (Richmond 2004) pp 378-379

63 There appears to be general agreement as to the fact that the ECJ has been at times very creative in its interpretation as opposed to whether this was appropriate or legitimate debate on the latter seems surprisingly low-profile see H Rasmussen On Law and Policy of the European Court of Justice A Comparative Study in Judicial Policymaking (Copenhagen 1986) P Neill The European Court of Justice A Case Study in Judicial Activism (London 1995) T Hartley The European Court Judicial Objectivity and the Constitution of the European Unionʼ 112 Law Quarterly Review (1996) pp 95-109 P Craig amp G de Buacuterca EU Law Text Cases and Materials (Oxford 2003) pp 96-102

64 Article 35(2) TEU65 Articles 23(1) (decisions relating to the common foreign and security policy) and 34(2) (judicial

cooperation in criminal matters) TEU66 Title VII TEU




Third Pillar matters with respect to state sovereignty67 It is argued here that the more typically public international law character of the Third Pillar suggests a different interpretive approach and that the ECJ should be less inclined to creatively interpret provisions so as to enhance or encourage integration to the exclusion or diminishment of individual member state competence68

Under EC law reflecting the view developed in the case-law of the ECJ that the Community legal order was autonomous of the member states legal orders69 the intentions of the authors of the treaties even including as set out in declarations are generally accorded little or no weight by the ECJ In its submissions in the case of Commission v Belgium70 the Commission summarised the position with respect to declarations by the drafters of a provision of EC law as follows ldquohellip as historical interpretation plays hardly any part in Community law it would be futile to refer to the intentions of the authors of the Treatyrdquo71 On several occasions the ECJ has rejected as irrelevant to its interpretation of secondary legislation any declarations by the drafters of the legislation72

In contrast under general international law73 (which is essentially the framework under which the Second and Third Pillars operate) the intentions of the authors or parties to a document can be accorded considerable weight in the interpretation of treaties and agreements74 which is consistent with the classic or Westphalian principle of international law that sovereign states are only bound to the extent that they consent to be bound In contrast in public international law a declaration by the signatoriesparties of a measure may be relevant to the interpretation of a document in so far as the intent of the authors of a document is deferred to by courts or tribunals in interpreting a treaty or agreement to which the declaration relates

67 See eg Advocate General Henri Mayras in Case 4569 Boehringer v Commission [1972] ECR 1281 at 1296 GJM Corstens Criminal Law in the First Pillarʼ 11 European Journal of Crime Criminal Law and Criminal Justice (2003) pp 131-144 p 131 An implication of the intergovern-mental nature of the Second and Third Pillars is that the doctrine of supremacy is not applicable

68 A broader argument could of course be made against the ʻactivism of the ECJ in relation to First PillarEC matters

69 Soslashrensen defined ʻautonomous to mean ldquooutside the power of sovereignty of the Member Statesrdquo op cit p 562

70 Case 14979 Commission v Belgium [1980] ECR 388171 Id at 389072 See eg Case 274 Reyners v Belgium [1974] ECR 631 at 666 Opinion 200 Cartegena Protocol

on Biosafety [2001] ECR I-9713 at para 2273 Supra note 6274 See Article 31 amp 32 of the Vienna Convention on the Law of Treaties 1969 115 UNTS 331 See also

Article 19(c) which prohibits reservations that are incompatible with the object and purpose of the treaty which is broadly comparable to the traditional common law golden rule of interpretation




Article 31(1) of the Vienna Convention on the Law of Treaties75 provides as a general rule of interpretation that a treaty shall be interpreted in good faith in accord-ance with the ordinary meaning to be given to the terms of the treaty in their context and in light of their object and purpose Article 31(2) provides that the context for the purpose of the interpretation of a treaty shall comprise in addition to the text including its preamble and annexes (a) any agreement relating to the treaty that was made between all the parties in connection with the conclusion of the treaty or (b) any instrument made by one or more the parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty76 Further article 31(4) provides that a special meaning shall be given to a term if it is established that the parties so intended Article 32 states that recourse may be had to supplementary means of interpretation including the preparatory work of a treaty and the circumstances of its conclusion either to confirm the meaning according to article 31 or to determine the meaning when interpretation according to article 31 is (a) ambiguous or obscure or (b) would lead to a result that is absurd or unreasonable Irelandʼs declaration is potentially covered by Articles 31(2)(b) 31(4) and 32 given that it is probative evidence of the intent of Ireland as partysignatory in circumstances where there is ambiguity as to the point in time in pre-trial proceedings by which surrender may be effected

In contrast the implications of the distinct ʻteleology of the ECJʼs interpretation which sees the Community legal order as autonomous of the member states77 would be to limit the scope of Irelandʼs declaration or entirely ignore it A pro-integration teleological approach characteristic of the First Pillar would suggest that the ECJ could require that Ireland surrender a suspect pursuant to an EAW so long as the trial within the local meaning of the term trial has started whether or not that encompasses a substantial degree of investigation

The public international law approach of accepting the declaration as an interpretive aid to clarify matters where the text itself is ambiguous would in this instance also be consistent with the traditional principle of strict interpretation of penal statutes in favour of an accused in terms of the result ie to narrow the scope of the surrender

75 Id76 Article 31(3) provides that there shall be taken into account together with the context (any) any

subsequent agreement between the parties regarding the interpretation of the treaty or the applica-tions of its provisions (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (c) any relevant rules of international law applicable in the relations between the parties

77 Supra note 69




arrangements in the case of Ireland78 It could be argued that the widespread support for the principle of strict construction internationally and in the national laws of EC member states justifies it being regarded as a general principle of law More generally the ECJ has identified national legal traditions as a source of law in its decisions in relation to the First Pillar79

6 IMPLICATIONS OF A CONSTITUTION OF EUROPE ndash BROADER CONTEXT OF POTENTIAL CONSTITUTIONALISATION OF CRIMINAL LAW AT A EUROPEAN LEVEL

61 Background ndash Judicial Review and the Judicial Power

The contrast suggested in this article between an interpretive approach that accords more weight to the statements of drafters of a measure and the more autonomous approach to interpretation that the ECJ has often adopted in relation to what are now First Pillar matters reflects a more general debate concerning the proper scope of the judicial interpretive power in constitutional matters80 The abstract and open-textured nature of many constitutional provisions means that their interpretation is not a simple or mechanical exercise based on a straightforward reading of the constitutional text (the concepts of the unity and effectiveness of EC frequently invoked in interpreta-tion by the ECJ are of a similarly abstract and open-textured nature)81 Rather their

78 See eg the ICTY in Prosecutor v Delalic et al IT-96-21 ldquoCelebicirdquo Trial Chamber II 16th November 1998 at para 402 ldquoThe principles nullum crimen sine lege and nulla poene sine lege are well recognised in the worldʼs major criminal justice systems as being fundamental principles of criminalityrdquo Prosecutor v Stanislav Galic supra note 36 paras 91-93

79 Eg the original human rights caselaw of the ECJ (eg Case 2996 Stauder v City of Ulm [1969] ECR 419) and the doctrine of proportionality (eg Case 4479 Hauer v Land Rheinland-Pfalz [1979] ECR 3727)

80 Of the large body of literature on the topic see eg Jack N Rakove (ed) Interpreting the Constitution (Northeastern Univ Press 1990) Alexander Bickel The Least Dangerous Branch of Government (Bobbs-Merrill 1962) Raoul Berger Government by Judiciary (Liberty Fund 1977) John H Ely Democracy and Distrust (Harvard Univ Press 1980) Ronald Dworkin Law s Empire (Harvard Univ Press 1986) Robert Bork The Tempting of America The Political Seduction of the Law (Simon amp Schuster 1990)

81 See generally H Wechsler ʻTowards Neutral Principles of Constitutional Lawʼ 73 Harvard Law Review (1959) pp 1-34 O Fiss Objectivity and Interpretationʼ 43 Stanford Law Review (1982) pp 739-763 Relating the legitimacy of law and adjudication to their reliance on neutral and objective principles in this way can be contrasted with a more pragmatic conception that emphasises for example effective or desirable consequences over process




interpretation requires reliance on some extra-textual factor in order to give them content and specify their scope when applied to particular factual situations82 As Ely observed this interpretive problem has given rise to a prevalent view that ldquo[a SupremeConstitutional Court] should give content to the Constitutionʼs open-ended provisions by identifying and enforcing upon the political branches those values that are by one formula or another truly important or fundamentalrdquo83 A judgeʼs own values natural law tradition and consensus are the most commonly cited sources for determining such values84 However if the extra-textual factors relied on in this way are themselves not capable of producing objective or neutral principles of constitutional law the problem arises that they may become a vehicle by which a judge imposes his or her own values So-called ʻgovernment by the judiciaryʼ85 has been assailed by those who favour a narrower conception of the judicial interpretive role in which interpretation is not so susceptible to subjective judicial application (this is a charge often and in particular directed against interpretation based on contemporary notions of justice and rights86) In this view resolution of politically contested rights issues by judicial interpretation of a Constitution is to usurp the function of democratically elected legislative assemblies87 ndash because the latter are bound by judicial interpretation of the Constitution88 In the context of judicial review in the style of the US system the decisive difference between judge-made law in the fashion of the common law which is traditional and accepted and constitutional adjudication is that the former can easily be abrogated or amended by statute in the context of constitutional judicial review it is the statute itself that may be struck down by reference to judicial interpretation

82 Ely op cit p 52 et seq83 Id p 4384 Id pp 43-7285 Berger op cit86 See Ely op cit pp 63-69 This approach can be criticised on a number of counts First if such a

consensus exists legislators are better placed than the judiciary to reflect such consensual views in legislation Secondly a primary rationale for constitutional judicial review ndash protecting minority rights ndash is thereby undermined ldquo hellip it makes no sense to employ the value judgments of the majority as the vehicle for protecting minorities from the value judgments of the majority The consensus approach therefore derives what apparent strength it has from a muddle helliprdquo (footnotes omitted) id p 69 Scalia observes ldquohellip It certainly cannot be said that a constitution naturally suggests changeability to the contrary its whole purpose is to prevent change ndash to embed certain rights in such a manner that future generations cannot readily take them awayrdquo (op cit p 40)

87 Bickel termed this the ldquocounter-majoritarian objectionrdquo op cit p 1688 Scalia op cit Berger op cit Bork op cit Jeremy Waldron Law and Disagreement (Oxford

1999)




and the legislature is then bound by that interpretation89 In the context of the EU the interpretation of EC law by the ECJ has supremacy over national law both statute law and constitutional law90

Advocates of a relatively more restrained approach to interpretation most typically argue that a historical understanding of a Constitution at least brings the issue of inter-pretation into the realm of objective fact ndash identifying empirically that understanding that prevailed when a constitutional document was enacted91 Justice Antonin Scalia of the US Supreme Court the most prominent judicial advocate of this view argues that the most appropriate way to ensure judicial fidelity to existing law is for judicial interpretation to rely on a close reading of the actual text of a statute or of the original understanding of a Constitution when adopted (not necessarily as understood by the drafters or framers of the Constitution the so-called strict constructionist approach but as it was generally or objectively understood)92

hellip If courts felt too much bound by the democratic process to tinker with statutes when their tinkering could be adjusted by the legislature how much more should they feel bound not to tinker with a constitution when their tinkering is virtually irreparable93

A contrasting approach emphasising the constructive role of judicial interpretation is of course argued for by Ronald Dworkin who proposes that a statute or Constitution ought to be interpreted in a way that best effects the principles inherent in the law94

89 See eg Scalia op cit pp 40-4190 According to the ECJʼs own caselaw but see eg the German Federal Constitutional Court in its

decisions in Brunner v The European Union Treaty [1994] 1 CMLR 57 and Solange II [1988] 25 CMLR 201 entering a reservation in relation to fundamental human rights

91 This is not to say that such historical understanding is always easily attainable see eg P Brest ʻThe Misconceived Quest for the Original Understandingʼ reproduced in Rakove op cit pp 227-262

92 Op cit pp 37-44 In relation to statutes Scalia argues against attempts to determine subjective legislative intent by reference to the statements of speakers in legislative debates (id 16 et seq) Dworkin makes a distinction in Scaliaʼa arguments which Justice Scalia agrees with between an objectified concept of intent based primarily on a reading of the text in its context upon adoption (semantic intent) and a specific concrete or subjective assessment of what the actual lawmakers involved believed the text meant Saclia is an advocate of the former as a guide to interpretation and prefers the term ʻimport to signify it Scalia notes however that ldquoUltimately of course those two concepts chase one another back and forth to some extent since the import of language depends upon its context which includes the occasion for and the hence the evidence purpose of its utterancerdquo Scalia op cit p 144 Dworkin (1997) op cit pp 115-118

93 Id pp 4094 Dworkin op cit R Dworkin Comment in A Scalia amp A Gutmann op cit pp 115-128




To those who would argue that judicial restraint in this context means fossilizing a Constitution the counter argument is that judicial restraint does not necessarily mean the Constitution cannot be changed to adapt to contemporary conditions95 ndash it just means that in a democracy such change should be effected in a democratic way by formal amendment rather than by de facto judicial amendment under the guise of interpretation advocating judicial restraint is not to advocate against constitutional change but rather simply to evince a preference as to how change is effected96

One aspect of the debate concerning the proper scope of the judicial power relating to constitutional interpretation revolves around the possibility of identifying a col-lective legislative intent that could ʻtie interpretation by judges to the meaning of a provision as understood by the enacting legislators or the drafters of a constitutional amendment This is relevant at a theoretical level to the invocation of travaux preacuteparatoires to the interpretation of international agreements Some theorists argue that attempts to identify specific or subjective legislative intent in this context are essentially futile97

The objections typically made are that the context of legislative debate does not allow for a determinate single intended meaning to emerge Debates are characterised by compromise log rolling98 and other procedural variations and happenstances involving a multiplicity of parties and actors that mean there is no single identifiable intention subsequently discernible from such debates this is in contrast to for example a preconsidered tract by a single author99 where the notion of intent may seem less problematic Speakers could for example have been talking at cross purposes to one another or have not considered the potential interpretive problems that a draft

95 Arguably in the context of the EU the greater diversity of political actors and electoral constituencies in any new European political framework as compared to national systems amplifies rather than weakens the force of Waldronʼs premise (Waldron op cit) as to the fact of fundamental disagree-ment in society about the proper resolution of rights issues and debates Briefly put Waldron argues that the fundamental fact of disagreement in contemporary society concerning important moral and political questions means the resolution of such issues by un-elected judicial officials in constitutional adjudication cannot be justified on democratic grounds in the context of the accepted claim that all citizens have a right to equal representation in the democratic decision making process Waldron contends that the playing out of such issues in legislative assemblies rather than judicial fora best reflects this right to equal participation

96 Ely op cit pp 1 72-7397 Waldron op cit p 119 et seq discussing Dworkin (1986) op cit pp 312-337 and A Marmor

Interpretation and Legal Theory (Oxford 1990) esp ch 8 See also generally Scalia op cit pp 16-18

98 Logrolling is the exchange of political favours especially voting to achieve the passing of legisla-tion

99 Waldron op cit




piece of legislation might contain There is in this view an insufficiently coherent connection between the parliamentary debate and what objectively speaking was actually voted upon and promulgated in the text for such parliamentary material to guide interpretation Another and related epistemological argument sometimes made is that the identification of a common historical understanding the possibility of which is a premise of originalist interpretation ignores that that degree of specific historical knowledge in relation to particular constitutional provisions is often not attainable because of such actors as distance of time and an incomplete or equivocal historical record100

The same general arguments would appear to apply on terms to the drafting process of international agreements such as the Framework Decision on an EAW

However it is submitted that the arguments concerning corporate intent even if generally valid do not have the same force in a context such as Ireland s declaration as putative independent evidence of what the drafters of the EAW intended It is clear in general terms that Ireland s declaration was intended to prevent investigative detention and that those extradited or surrendered by Ireland pursuant to an EAW should be made subject to a criminal trial proper relatively quickly It is not a matter of trying to glean a collective legislative intent as to a particular provision from potentially disparate and maybe oblique references (in which speakers may have been talking at cross-purposes for example) in an overall legislative debate101 In this instance the Irish government made an express declaration on the specific matter in question and repeated that during the parliamentary passage of the measure102 The more generalised objections identi-fied above that it is simply not possibly to determine a single subjective legislative do not it is suggested have the same force in that particular context The specificity of Irelandʼs declaration acts as a counterweight to the theoretical problem as to the indeterminacy of corporate or legislative intent How to apply Irelandʼs declaration in precise terms may not be entirely straightforward given differing conceptions in European criminal procedure as to the precise scope of a trial relative to investigation

100 See eg Brest op cit For a contrary view see eg L Graglia How the Constitution Disappearedʼ reproduced in Rakove op cit pp 35-50

101 Waldron acknowledges the possibility that legislators may deliberately make statements in a parliamentary debate with a view to influencing courts subsequent interpretation He suggests that such practices ldquorepresent in effect a gradual modification of the legal systemʼs rule of recognition from the judges side and as far as the legislature is concerned they represent a gradual modification of its constitutive proceduresrdquo (footnotes omitted) op cit p 146

102 Without the Opposition parties in parliamentary debate having identified any objections or problems in that regard (Daacuteil Debates 5th December 2003 cols 900 905-906 Daacuteil Debates 17th December 2003 col 941)




of a case but the general intent and import103 of Irelandʼs declaration seems clear and can provide specific guidance to judicial interpretation

More generally it might be argued that the possible incorporation of criminal matters in an overall future Constitution for Europe will render redundant any distinc-tion currently reflected in the divide between the First and Third Pillars However whether or not the particular part of any future Constitution for Europe relating to the competence of EU institutions (including the ECJ) in criminal matters will actually be labelled ʻa Pillar or not (it most likely will not be)104 a more cautious approach to judicial interpretation is warranted in a criminal context in any case (apart from more general objections to judicial activism in constitutional law) First the almost universally accepted principles of legality and specificity of the criminal law105 militate against an inherently less predictable creative interpretation of criminal provisions Second the reason why criminal cooperation has been to date at a intergovernmental level chiefly the sensitivity of national sovereignty in this area would still be present in a new constitutional context even where criminal law issues were more integrated into a unified CommunityUnion mechanism The transfer to the Community method as it is now known (by introducing supremacy and direct effect majority voting and the compulsory jurisdiction of the ECJ) of what are currently Third Pillar issues would relate to certain specific areas of criminal law of particular cross-border concern106 so there would co-exist the new CommunityUnion jurisdiction in criminal law alongside the national criminal law traditions that would still apply in most fields One way to ensure that judicial interpretation by the ECJ of CommunityUnion measures does not unnecessarily extend the scope and effect of Union measures autonomously and to the exclusion of member state competence is that the ECJ would defer to the understanding of the drafters of a measure as to its meaning and scope to the extent that they were ascertainable and specifically relevant as arguably is the case with respect to Irelandʼs declaration concerning the EAW

103 Supra note 92104 See in particular Article I-14(2) (area of freedom security and justice is a shared competence)

and Articles III 270-277 (judicial cooperation in criminal matters) of the Treaty Establishing a Constitution for Europe Brussels 29th October 2004 CIG 87204 REV 2

105 See eg Hans-Heinrich Jescheck ʻThe General Principles of International Criminal Law Set out in Nuremburg as Mirrored in the ICC Statuteʼ 2 Journal of International Criminal Justice (2004) pp 38-55 pp 40-42

106 Article III-271




7 THE GOumlZUumlTOK AND BRUumlGGE CASE

The ECJ has dealt with at least one relevant matter that may indicate its approach more generally to the interpretation of Third Pillar measures Joined Cases Criminal Proceedings Against Goumlzuumltok and Bruumlgge Case107 the first decision of the ECJ both on a Third Pillar measure and on the Schengen Convention108 the integration into EU law of which was provided for in the Schengen Protocol to the Amsterdam Treaty It has been observed that the reasoning of the ECJ in the case is broadly consistent with the usual reasoning of the Court in relation to First Pillar matters such as free movement of persons109 emphasising broad principles of the unity and effectiveness of EC law110 and amply interpreting the scope of primary provisions and narrowly interpreting exceptions The case concerned the interpretation of Article 54 of the Schengen Convention on ne bis in idem111

[A] person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that if a penalty has been imposed it has been enforced is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party

The ECJ concluded that Article 54 of the Schengen Convention precluded subsequent German criminal proceedings relating to the same acts as had been the subject of an out-of-court settlement in the Netherlands ndash that the out-of-court settlement ldquofinally disposed ofrdquo the matter for the purposes of Article 54 First the Court based its deci-sion on the term ldquofinally disposed ofrdquo in Article 54 It reasoned that the transaction or settlement in the Netherlands both ended the prosecution and entailed the application of a sanction and therefore settled or disposed of the issue in Dutch law112 The ECJ did not directly discuss the words to be found prior to ldquofinally disposed ofrdquo in Article 54 ndash ldquowhose trialrdquo ndash but did add that in the absence of an express indication to the contrary such matters of procedure and form as the absence of judicial involvement

107 Joined Cases C-18701 and C-38501 Article 35 TEU Reference 11th February 2003 [2003] ECR I-1345 See N Thwaites ʻMutual Trust in Criminal Matters the ECJ gives a first interpretation of a provision of the Convention implementing the Schengen Agreement Judgment of 11th February 2003 in Joined Cases C-18701and C-38501 Huumlseyin Goumlzuumltok and Klaus Bruumlggeʼ 4(3) German Law Journal (2003)

108 Schengen Implementation Convention of 14 June 1990 30 ILM 184 (1991)109 Thwaites op cit para 21 See also more generally Denza op cit pp 311-322110 Supra note 62111 Supra note 108112 Supra note 107 at paras 28-30




in an out-of-court settlement did not justify the non-application of the ne bis in idem principle113 However it might equally be argued that the absence of any express indication to that effect would warrant the opposite conclusion

The Court went on to identify two more general considerations in support of its decision First it stated that nowhere in Title VI of the TEU was the application of the ne bis in idem rule in Article 54 made dependent upon the harmonisation or approximation of the laws of member states114 It observed that it was ldquoa necessary implicationrdquo of this context that member states had sufficient mutual trust in each others systems to recognise decisions by them even where a member stateʼs own law might have produced a different result115 If this is true however it does not necessarily follow that such trust has to extend to out-of-court settlements this general observation by the ECJ arguably just begs the question as to the extent of the mutual trust as manifested in a principle of mutual recognition required by Article 54 Second the Court suggested that its interpretation was ldquothe only interpretation to give precedence to the object and purpose of the provisionrdquo116 Whether or not the particular interpretation favoured by the Court best achieves the object and purpose of the provision would depend on the level of generality with which that object or purpose is characterised117 if characterised broadly as seeking to achieve a higher degree of mutual recognition and cooperation in all criminal matters then the Courtʼs conclusion may be reasonable However the proper level of generality with which to characterise a right is not obvious from the text itself and the general issue was not analysed in any depth by the ECJ in the case The ECJ did briefly identify two factors in terms of identifying the object and purpose of Article 54 First it noted that the Treaty of Amsterdam set the objective for the Union of maintaining and develop-ing an area of freedom security and justice in which free movement of persons is assured118 The Court continued that the objective of Article 54 was to ensure that no

113 Id at para 31114 Id at para 32115 Id at para 33116 Id at para 34117 The suppleness or malleability of the teleological method of interpretation prompted one commentator

to label it the ldquowildcard teleological methodrdquo M A Glendon Comment in A Scalia amp A Gutmann op cit pp 95-114 at p 112 Glendon observes that civil law systems possess an advantage when it comes to interpretation ldquoa certain legal culture widely shared by lawyers and judges with diverse personal backgrounds economic views and political sympathiesrdquo which helps counteract the extent to which the personal interests and predilections of judges influence their interpretation id Such a widely shared legal culture seems obviously absent in the context of the ECJ the judges of which are drawn from diverse legal systems throughout the EU

118 Supra note 107 at para 36




119 Id at para 37120 Id at paras 39-40

one is prosecuted on the same facts in several member states on account of having exercised the right to free movement which would be frustrated if Article 54 did not encompass out-of-court settlements119 Second the Court observed that national legal systems that provide for procedures whereby further prosecution is barred do so only in certain circumstances or in respect of certain exhaustively-listed or defined offences which as a general rule are not serious offences and are punishable only with relatively light penalties The Court then noted that if Article 54 were confined to decisions arising out of judicial proceedings it would be of benefit only to those guilty of serious offences120

The ECJ therefore characterised the objective of Article 54 very broadly It related it to the overall Union objective of achieving a common area of freedom justice and security and particularly in the context of freedom of movement The obvious objection to this approach is that such vaguely worded provisions are open to a subjective application ndash because they do not necessarily mean anything specific to put it somewhat provocatively they can mean whatever the Court would like them to mean The Courtʼs interpretation of Article 54 was consistent at a general level with attaining an objective of an area of freedom justice and security but is not at all necessarily required by it The same concepts could have been invoked for example to reach an entirely contrary conclusion ie that Article 54 did not apply to out-of-court settlements One could as easily have argued that the concepts ldquojustice and securityrdquo point to the importance the Union attaches to the criminal process of which criminal trials are the pre-eminent or ultimate manifestation The procedural safeguards afforded by a criminal trial are universally considered to have a basic normative value as opposed to more ad hoc administrative procedures such as out-of-court settlements The fair resolution of criminal charges can be seen as a prerequisite for the functioning of a free society in which the rule of law is guaranteed and which encompasses the value of free movement of persons including free movement of law-abiding citizens Therefore it could be concluded in principle mutual recognition under Article 54 does not encompass out-of-court settlements

In the context that the same concepts of justice security and freedom can also be invoked to reach a conclusion actually contrary to the reasoning of the ECJ (albeit in a perhaps similarly tendentious way) it is difficult to see how the Courtʼs actual decision was clearly rooted in the text as opposed to the Courtʼs own policy views or preferences especially in the context of the Court just glossing over the use of the term ʻtrial in Article 54 The Courtʼs reasoning may have been more persuasive if it had sought to identify discussed and weighed if only for the purpose of discounting alternative possible resolutions of the issue before it




121 Id at para 46122 See generally the discussion in the final three chapters of L H Tribe amp M C Dorf On Reading

the Constitution (Harvard 1991) Michael H et al v Gerald D 491 US 110 (1989) footnote 6 of Justice Scaliaʼs judgment

123 Scalia op cit pp 37-38

The Court disposed of any argument based on the intentions of the contracting parties by observing that ldquohellip it is sufficient to note that the documents [indicating such intentions] predate the Treaty of Amsterdamʼs integration of the Schengen acquis into the Framework of the European Unionrdquo121 This at least theoretically leaves open the possibility that the Court might have regard to such statements in future cases ndash but this seems unlikely given the overall interpretive approach of the Court in which it preferred broader prudential considerations of the effectiveness of the provisions rather than textual considerations

Justice Scalia of the US Supreme Court has identified the importance of level of generality issues to constitutional adjudication and his views suggest an alternative approach to the issue that would better respect the limits on judicial power122 He has proposed that the most appropriate level of generality is the most specific level at which a relevant tradition protecting or denying protection to the asserted right could be identified ndash a position that can be viewed in the context of Justice Scaliaʼs general judicial philosophy indicated above warning against judicial law-making in a statutory and constitutional context123

Such an approach in the context of Goumlzuumltok and Bruumlgge would suggest first a closer reading of the levels of generality permitted by the text and second a reliance on the most specific reading Arguably this would not readily support the conclusion that out-of-court settlements amounted to ldquoa trial finally disposed ofrdquo The fact that the EU and the Third Pillar are relatively recent institutional creations and emanate from a diversity of legal traditions and systems may make difficult the identification of the most specific relevant tradition to an asserted right However this difficulty would arguably point toward a narrower reading of the text in the context of a concern that judicial interpretation would fall into the trap of straightforward law making For example an analysis based on this approach could seek to identify the ʻlowest com-mon denominator of ne bis in idem protection afforded in criminal trials in the legal traditions of the states that have ratified the Schengen Convention ie the minimal level of ne bis in idem protection common to disparate approaches on the issue124 Such an analysis would then turn on whether the ratifying states in general recognised out-of-court settlements as giving rise to res judicata which would represent a broad application of ne bis in idem protection If there was no (or no substantial) uniformity of approach then a narrower reading of Article 54 would on this view be appropriate




124 Generally see G Conway ʻNe Bis in Idem in International Lawʼ 3 International Criminal Law Review (2003) pp 217-244

125 Supra note 107 at para 39126 Supra note 47

In its decision in Goumlzuumltok and Bruumlgge the ECJ specifically noted that national legal traditions did not generally regard out-of-court settlements as preclusive of further proceedings except in non-serious cases125 Alternatively the Court could have sought to assess the meaning of the term ʻtrial in national legal systems which similarly may not have supported its conclusion126

It might be argued that the approach of the ECJ in Goumlzuumltok and Bruumlgge is consist-ent with strict construction of penal statutes in favour of defendants (it could also be argued that the case actually involved a broad construction of penal statutes in favour of defendants) However the Court based its decision primarily on more general or systemic considerations as to mutual trust and (its view of) the effectiveness of Union law rather than on conceptions of individual rights

8 CONCLUSION

The emergence of a competence in the area of criminal law which represents a fault line of particular sensitivity between member state and Union competence throws in relief the constitutional nature of the Union and the role of the ECJ and of its methodology These issues are now obviously highly topical in light of the developing debate on the new draft Constitution for Europe and of the expansion of the EU both in terms of the number of countries becoming members and in terms of the fields of competence in which the EU may operate Yet to date it seems even in relation to ʻcore Union activities in the First Pillar the scope of this debate as to the role of the ECJ has been relatively limited In view of Irelandʼs acceptance of the EAW it was argued here that this context points to a more cautious interpretive approach in relation to Third Pillar matters to that often adopted in relation to the First Pillar and that weight should be given in judicial interpretation of Irelandʼs implementing legislation to the declaration Ireland made at the time it agreed to the Framework Decision for the democratic rationale that it represents and the extent to which the elected government committed itself to the new procedure




and the requested state4 Some concern has been expressed for example that the extra-territorial scope of the EAW combined with the absence of a double criminal-ity rule for a range of offences could have the effect of rendering a person subject to criminal sanction for actions not criminalized in the state where they occur5 For civil law jurisdictions a further very significant aspect of the new measure is that it requires the surrender of nationals6 Other novel aspects are provisions concerning the optional abolition of the rule of speciality the assignment of most functions of national authorities to judicial personages rather than the executive and the non-application of the political offence exception to extradition

In that context it is perhaps not surprising that a number of member states made declarations to clarify the potential scope of the new measure One declaration made by Ireland during intergovernmental negotiations was to the effect that Ireland would only execute an EAW for the purpose of bringing a person to trial or for the purpose of executing a custodial sentence or detention order The declaration was intended to make clear Irelandʼs opposition to extradition or surrender for the purpose of investigative detention7 In s 11(3) of the European Arrest Warrant Act Irelandʼs implementing legislation the Irish government has sought to give effect to this declaration Although it does not appear to have made an equivalent declaration during the negotiations

4 Article 2(2) provides for the relaxation of double criminality in relation to a lengthy list of of-fences

5 See Lord Filkin Parliamentary Under-Secretary of State for the Home Office in the House of Lords ndash Lords Hansard 1st May 2003 col 855 (referring to ss 64(2) amp 65(2) of the UK Extradition Bill 2003 the UK implementing measure) s 32 Irish European Arrest Warrant Act 2003

6 See Plachta op cit7 In introducing the European Arrest Warrant Bill 2003 to the Daacuteil (the lower chamber of the Irish

parliament) the Irish Minister for Justice Equality and law Reform stated that the relevant provi-sion of the Bill (s 9(3) later shortened and inserted as s 11(3)) stated ldquohellip I draw attention to the statement Ireland made when the Framework Decision was adopted The text of that statement is as follows ʻIreland shall in the implementation in domestic legislation hellip [quoted infra in text] hellip or for the purpose of executing a custodial sentence or detention orderʼ The important point to note is that in cases where the person has not yet been convicted the emphasis is on ensuring that the person is being sought to face trial This is designed to ensure that persons are not surrendered in custody for investigative purposes with the possibility of prolonged detention before a decision is taken whether to charge that person This is the substance of the Irish declarationrdquo (Daacuteil Debates 5th December 2003 col 893) The point was reiterated by the Minister of State in debate (id col 932) Subsequently the Minister stated that the provisions of s 11(3) are ldquosupposed to reflect the declaration made by Ireland at the time the framework decision was adopted that we would not extradite people for other purposes such as participating in a criminal inquiry helliprdquo (Daacuteil Debates 17th December 2003 col 941)































































































45 Supra note 7

























51 ECJ Jurisdiction












































77 Supra note 69



















1999)























99 Waldron op cit


















106 Article III-271









































8 CONCLUSION
































































































45 Supra note 7

























51 ECJ Jurisdiction












































77 Supra note 69



















1999)























99 Waldron op cit


















106 Article III-271









































8 CONCLUSION


























51 ECJ Jurisdiction












































77 Supra note 69



















1999)























99 Waldron op cit


















106 Article III-271









































8 CONCLUSION










































77 Supra note 69



















1999)























99 Waldron op cit


















106 Article III-271









































8 CONCLUSION




















1999)























99 Waldron op cit


















106 Article III-271









































8 CONCLUSION
























99 Waldron op cit


















106 Article III-271









































8 CONCLUSION



















106 Article III-271









































8 CONCLUSION










































8 CONCLUSION


UDICIAL)NTERPRETATIONANDTHE4HIRD0ILLAR · 2005. 7. 19. · udicial)nterpretationandthe4hird0illar...

Documents

Transcript of UDICIAL)NTERPRETATIONANDTHE4HIRD0ILLAR · 2005. 7. 19. · udicial)nterpretationandthe4hird0illar...

*UDICIAL)NTERPRETATIONANDTHE4HIRD0ILLAR · 2005. 7. 19. · *udicial)nterpretationandthe4hird0illar...

Documents

Transcript of *UDICIAL)NTERPRETATIONANDTHE4HIRD0ILLAR · 2005. 7. 19. · *udicial)nterpretationandthe4hird0illar...

UDICIAL)NTERPRETATIONANDTHE4HIRD0ILLAR · 2005. 7. 19. · udicial)nterpretationandthe4hird0illar...

Transcript of UDICIAL)NTERPRETATIONANDTHE4HIRD0ILLAR · 2005. 7. 19. · udicial)nterpretationandthe4hird0illar...