Superior Court Rules

ORDER 98

EUROPEAN ARREST WARRANT ACT, 2003
EXTRADITION ACTS, 1965 to 2001
INTERNATIONAL CRIMINAL COURT ACT, 2006, PART 3

I. Preliminary

1. (1) In this Order–

the ‘1965 Act’ means the Extradition Act, 1965, as amended;

the ‘2003 Act’ means the European Arrest Warrant Act, 2003;

the ‘2006 Act’ means the International Criminal Court Act, 2006;

‘Convention country’ shall have the same meaning as in the 1965 Act;

‘ICC’ means the International Criminal Court established by Article 1 of the Statute of the International Criminal Court, done at Rome on 17 July 1998;

‘Minister’ means the Minister for Justice and Equality;

‘Rome Statute’ means the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998.

(2) Words and expressions contained in rules 2 to 9 inclusive of this Order shall, where the context so admits, have the same meaning as in the 2003 Act.

(3) Words and expressions contained in rules 18 to 25 inclusive of this Order shall, where the context so admits, have the same meaning as in the 2006 Act.

[SI 117/13]

II. Endorsement of European arrest warrant and procedure following arrest on foot of European Arrest Warrant

2.(1) An application by the Central Authority in the State pursuant to section 13 of the 2003 Act for the endorsement of a European arrest warrant shall be made to the court by motion ex parte.

(2) On making such application, the Central Authority in the State shall produce for the court the European arrest warrant concerned, or a facsimile copy or a true copy thereof.

(3) Where a European arrest warrant (or, where section 13(2)(b) of the 2003 Act applies, a facsimile copy or a true copy of a European arrest warrant, as the case may be) is endorsed for execution pursuant to section 13 of the 2003 Act the endorsement shall be in the following form:

‘This warrant is endorsed for execution pursuant to Order of the High Court.

Dated the day of 2

Signed:

 

________________

Registrar’

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3. (1) Where a person arrested under a European arrest warrant is brought before the court in accordance with section 13(5) of the 2003 Act, the court shall fix a date for the purposes of section 16 of the 2003 Act not later than 21 days from the date of the person’s arrest, and shall remand the person in custody or on bail to that date or to such earlier date as the court shall direct.

(2) The provisions of rule 15 of Order 84 shall apply to an application for bail made by a person arrested under a European arrest warrant.

(3) Where in any case the court remands the person in custody in accordance with the provisions of the 2003 Act the committal warrant shall be in writing in the Form No 1, Appendix AA.

[SI 23/05]

III. Consent to surrender under the 2003 Act

4. Where a person arrested under a European arrest warrant endorsed by the court consents to being surrendered to the issuing State pursuant to section 15 of the 2003 Act, the consent to surrender given by the person shall be in writing in the Form No 2, Appendix AA. Where the court considers it appropriate, it may direct that a translation of that form in a language specified by the court be provided to the person for signature.

[SI 23/05]

IV. Procedure on refusal or withdrawal of consent to surrender under the 2003 Act

5. (1) Where a person does not consent to his or her surrender to the issuing State, or withdraws his or her consent under section 15(9) of the 2003 Act, he shall be at liberty, not later than four days before the date fixed for the purposes of section 16 of the 2003 Act, to deliver to the solicitor for the Central Authority in the State and file in the Central Office, Points of Objection to his or her surrender.

(2) Points of Objection shall contain a statement in summary form of the grounds and of the material facts on which the person relies to resist the execution of the European arrest warrant but not the evidence by which such material facts are to be proved.

(3) Where a person withdraws his or her consent to surrender, such withdrawal shall be notified in writing by on behalf of the person as soon as may be to the governor or person in charge of the prison or other place where the person is detained or to the solicitor for the Central Authority in the State and thereafter the person shall be brought before the court on the date fixed for the purposes of section 16 of the 2003 Act.

[SI 23/05]

6. On the date fixed pursuant to rule 3(1) of this Order the court shall make an order directing that the person be surrendered to such other person as is duly authorised by the issuing State to receive him or her or, where Points of Objection have been delivered, shall fix a date for the purpose of a hearing of the Points of Objection and shall remand the person for that purpose and shall make such directions as to the delivery of affidavits and otherwise as seem appropriate.

[SI 23/05]

V. Evidence and discovery of documents under the 2003 Act

7. Evidence at the hearing fixed for the purposes of section 16 of the 2003 Act shall be adduced on affidavit save where the court, in urgent cases or if the interests of justice so require, otherwise directs.

[SI 23/05]

8. (1) A party to proceedings under the 2003 Act may apply to the court on notice for an order directing any other party or other person to make discovery of the documents which are or have been in his possession or power, relating to any matter in question therein.

(2) On an application made under sub-rule (1), the court may, on such terms as it thinks fit, order that the party or other person from whom discovery is sought shall deliver to the opposite party a list of the documents which are or have been, in his possession, custody or power, relating to the matters in question in such proceedings, or to such matters in question as are specified in the court’s order.

(3) An order shall not be made under this rule if and so far as the court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

(4) An application for an order under sub-rule (1) directing any party or other person to make discovery shall not be made unless (a) the applicant for same shall, not later than seven days before making the application, have previously applied by letter in writing requesting that discovery be made voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered and (b) the party or person requested has, as of the time the application is made, failed, refused or neglected to make such discovery or has ignored such request. Provided that in any case where by reason of the urgency of the matter or the consent of the parties, the nature of the case or any other circumstances which to the court seem appropriate, the court may make such order as appears proper, without the necessity for such prior application in writing.

[SI 23/05]

VI. Application for issue of European arrest warrant

9. (1) Subject to sub-rule (2), an application under section 33(1) of the 2003 Act by or on behalf of the Director of Public Prosecutions to the court to issue a European arrest warrant in respect of a person shall be made ex parte grounded on an affidavit of a person duly authorised on behalf of the applicant. A European arrest warrant issued pursuant to such application shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision and shall contain the information therein set out and such information as is required by section 33(2) of the 2003 Act or, where it is not practicable for the European arrest warrant to be in such form, shall contain the information set out in section 33(3) of the 2003 Act.

(2) The court may, in cases of urgency, hear an application under section 33(1) of the 2003 Act on oral evidence.

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VII. Proceedings under the 1965 Act

10. A warrant issued by the court under section 26(1)(b) of the 1965 Act for the arrest of the person therein named shall be in writing in the Form No 3, Appendix AA.

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11. An information sworn before the court under section 27(1) of the 1965 Act shall be in the Form No 4, Appendix AA.

[SI 23/05]

12. A warrant issued by the court under section 27(1) of the 1965 Act for the arrest of the person therein named shall be in writing in the Form No 5, Appendix AA. Where a Judge issues a warrant under section 27(1) of the 1965 Act, the Registrar shall forthwith notify the Minister of the issue of the warrant.

[SI 23/05]

13. A notice under section 27(5) of the 1965 Act informing the Minister of the issue of a warrant under section 27 of the 1965 Act shall be in the Form No 6, Appendix AA.

[SI 23/05]

14. A warrant issued by the court under section 27(6) of the 1965 Act remanding a person in custody pending the production of a certificate of the Minister under section 26(1)(a) of the 1965 Act shall be in writing in the Form No 7, Appendix AA.

[SI 23/05]

15. Where a person arrested under a warrant issued under section 26 or section 27 of the 1965 Act is before the court in accordance with that Act, and the court makes an order pursuant to section 29(1) of the 1965 Act, the committal warrant shall be in writing in the Form No 8, Appendix AA. Where the court makes such order, or makes an order pursuant to section 27(6) of the 1965 Act, the Registrar shall forthwith notify the Minister of the making of same.

[SI 23/05]

16. The certificate of committal required under section 29(3)(b) of the 1965 Act to be sent to the Minister shall be in the Form No 9, Appendix AA.

[SI 23/05]

17. (1) Where a person brought before the court pursuant to a warrant issued under section 26 or section 27 of the 1965 Act consents to being surrendered pursuant to section 31 of the 1965 Act, the consent to surrender given by a person shall be in writing in the Form No 10, Appendix AA. Where the court considers it appropriate, it may direct that a translation of that form in a language specified by the court be provided to the person for signature.

(2) Where a person brought before the court pursuant to a warrant issued under section 26 or section 27 of the 1965 Act, on foot of a request from a Convention country, consents to being surrendered pursuant to section 29A(3) of the 1965 Act, the consent to surrender given by a person shall be in writing in the Form No 11, Appendix AA. Where such a person consents to the Minister giving his consent under section 20(1)(a)(i) of the 1965 Act, such consent may be endorsed on the form of consent as given pursuant to section 29A(3) of the 1965 Act in the Form No 12, Appendix AA. Where the court considers it appropriate, it may direct that a translation of Form No 11 or Form No 12 in a language specified by the court be provided to the person for signature.

(3) The record in writing of a consent to surrender made by the court in accordance with section 29A(4) of the 1965 Act shall be in the Form No 13, Appendix AA.

[SI 23/05]

IX. Requests by International Criminal Court for Arrest and Surrender of Persons under Part 3 of the 2006 Act

18. (1) In this rule, ‘surrender proceedings’ has the same meaning as in section 18 of the 2006 Act.

(2) A notification by the Minister under section 18(2), section 18(3) or section 18(4) of the 2006 Act shall be in writing addressed to the Registrar.

(3) Where a notification under section 18(2) of the 2006 Act is received, the Registrar shall cause the surrender proceedings concerned to be listed before the Court on notice to the applicant in the surrender proceedings and to the person to whom the surrender proceedings and the request relates for the purpose of considering the making of an order in accordance with section 18(2) of the 2006 Act pending a decision by the Minister in accordance with Art 90 of the Rome Statute.

(4) Where a notification under section 18(3) of the 2006 Act is received, the Registrar shall cause the surrender proceedings concerned to be listed before the Court on notice to the applicant in the surrender proceedings and to the person to whom the surrender proceedings and the request relates for the purpose of considering the making of an order in accordance with section 18(3) of the 2006 Act.

(5) Where a notification under section 18(4) of the 2006 Act is received, the Registrar shall copy the notification to the applicant in the surrender proceedings and to the person to whom the surrender proceedings relates.

[SI 117/13]

19. A warrant of the Court issued pursuant to section 20 of the 2006 Act for a person’s arrest shall be in writing in the Form No 14, Appendix AA. Where the Court issues a warrant pursuant to section 20 of the 2006 Act, the Registrar shall forthwith notify the Minister in writing of the issue of the warrant.

[SI 117/13]

20. (1) The sworn information of a member of the Garda Síochána for the purposes of an application for a provisional arrest warrant pursuant to section 22 of the 2006 Act shall be in writing in the Form No 15, Appendix AA.

(2) A provisional arrest warrant issued pursuant to ssection 22 of the 2006 Act for a person’s arrest shall be in writing in the Form No 16, Appendix AA. Where the Court issues a provisional arrest warrant pursuant to section 22 of the 2006 Act, the Registrar shall forthwith notify the Minister in writing of the issue of the warrant.

(3) A notification by the Minister under section 22(3) of the 2006 Act shall be in writing addressed to the Registrar.

(4) Where in any case the Court remands a person in custody in accordance with the provisions of section 24(1) of the 2006 Act, the committal warrant shall be in writing in the Form No 17, Appendix AA.

[SI 117/13]

Surrender under the 2006 Act

21. (1) Where a person has been arrested in accordance with a warrant issued under section 20 or section 22 of the 2006 Act and:

(a) the person consents to being surrendered to the custody of the International Criminal Court or, as the case may be, the person shall notify the Registrar in writing of his or her intention to consent to surrender, or

(b) the consent to surrender is given by a person who is deemed appropriate for that purpose by the Court in accordance with section 29(4) of the 2006 Act,

the consent to surrender shall be recorded in writing before the Court in the Form No 18, Appendix AA.

(2) The Registrar shall forthwith notify the Minister in writing of any notification pursuant to sub-rule (1)(a) and shall forthwith provide the Minister with a copy of every consent given before the Court pursuant to sub-rule (1).

(3) Where a person who has consented to his or her surrender withdraws his or her consent to surrender, such withdrawal shall be notified in writing by or on behalf of the person as soon as may be to the governor or person in charge of the prison or other place where the person is detained or to the Minister and thereafter the person shall be brought before the Court on the date fixed for the purposes of section 25 of the 2006 Act or, if no such date has yet been fixed, shall be brought before the Court as soon as practicable for the purpose of fixing such a date.

[SI 117/13]

22. (1) Where a person arrested under section 23 of the 2006 Act is brought before the Court in accordance with section 23 of the 2006 Act, and the Court is satisfied that the requirements of section 23(4) and section 23(5) of that Act have been satisfied, the Court:

(a) may receive a consent referred to in rule 21 and make a surrender order accordingly, or

(b) in any other case, shall fix a date for the purposes of section 25 of the 2006 Act not later than 21 days from the date of the person’s arrest, and shall remand the person in custody or on bail to that date or to such earlier date as the Court shall direct.

(2) Where a person does not consent to his or her surrender to the custody of the International Criminal Court (or, as the case may be, of the state of enforcement) in accordance with section 29(1) of the 2006 Act, or withdraws his or her consent under section 29(6)(a) of the 2006 Act before a surrender order has been made by the Court:

(a) he shall be at liberty, not later than 4 days before the date fixed for the purposes of section 25 of the 2006 Act, to deliver to the Minister and file in the Central Office, Points of Objection to his or her surrender, and

(b) where he or she intends to make a challenge to admissibility before the Court on the basis of the principle of ne bis in idem as provided for in Article 89(2) of the Rome Statute (and as referred to in section 25(2)(a)(ii) of the 2006 Act), he shall immediately notify the Minister and the Registrar in writing of such intention, and the Registrar shall forthwith copy such written notification to the Minister.

(3) Points of Objection shall:

(a) contain a statement in summary form of the grounds and the material facts on which the person relies to resist the making of a surrender order under section 25 of the 2006 Act, but not the evidence by which such material facts are to be proved, and

(b) where any determination or declaration under section 25(3) of the 2006 Act is sought, specify the determination or declaration sought by the person.

(4) Without prejudice to the generality of sub-rule (3):

(a) where the person has made a challenge before the International Criminal Court to the admissibility of a case on grounds referred to in Article 17 or 89(2) of the Rome Statute or to the International Criminal Court’s jurisdiction in the case, the Points of Objection shall include particulars of the challenge (or supplementary Points of Objection shall be delivered and lodged including such particulars), and

(b) where the person intends to make a challenge to admissibility before the Court on the basis of the principle of ne bis in idem, as provided for in Article 89(2), the Points of Objection shall contain a summary statement of the grounds for such challenge and the material facts on which the person relies in support of such challenge, but not the evidence by which such material facts are to be proved (or supplementary Points of Objection shall be delivered and lodged including such statement).

[SI 117/13]

23. (1) On the date fixed pursuant to rule 22(1), or any adjournment from that date, the Court may:

(a) receive a consent referred to in rule 21 and make a surrender order accordingly;

(b) where Points of Objection have been delivered, fix a date for the purpose of a hearing of the Points of Objection and in such case, shall remand the person for that purpose and shall make such directions as to the delivery of affidavits and otherwise as seem appropriate;

(c) whether or not Points of Objection have been delivered, adjourn the proceedings in any case in which it is satisfied that a challenge referred to in section 25(2)(a)(i) of the 2006 Act has been made and not determined;

(d) whether or not Points of Objection have been delivered, hear and determine a challenge referred to in section 25(2)(a)(ii) of the 2006 Act, or adjourn the proceedings pending the determination by the Court of such a challenge;

(e) hear and determine an application for any determination or declaration under section 25(3) of the 2006 Act;

(f) make a surrender order for the surrender of the person into the custody of the International Criminal Court or, as the case may be, of the state of enforcement.

(2) The Registrar shall forthwith send a written notification to the Minister of the making of any determination or declaration in accordance with section 25(3) of the 2006 Act.

(3) The Registrar shall forthwith send a copy of any surrender order made by the Court to the Minister in accordance with section 25(4)(c) of the 2006 Act.

[SI 117/13]

24. An application pursuant to section 33(2) of the 2006 Act by or on behalf of a person awaiting surrender who has not been surrendered and conveyed out of the State in accordance with section 33(1) of the 2006 Act shall, unless the Court otherwise directs or permits, be by motion on two clear days’ notice to the Minister.

[SI 117/13]

25. (1) An application for bail by a person in custody pursuant to the 2006 Act shall be by motion on notice to the Minister grounded on the affidavit of the applicant.

(2) The Registrar shall send a copy of any motion lodged for issue under sub-rule (1) to the Pre-Trial Chamber of the International Criminal Court for the purposes of section 26(2)(a)(i) of the 2006 Act.

(3) The application shall be entitled:

THE HIGH COURT

IN THE MATTER OF A REQUEST BY THEINTERNATIONAL CRIMINAL COURT FOR THESURRENDER OF ......................................

BAIL APPLICATION

or to the appropriate effect.

(4) Where an applicant has no solicitor, the Court may dispense with the necessity for a notice of motion (provided it is satisfied that notice of the application has been given to the Minister and the Pre-Trial Chamber) and affidavit, and in lieu thereof shall give all appropriate directions including a direction that the applicant be brought before the Court on a date and at a time to be specified, of which the Minister and the Pre-Trial Chamber shall be notified, and for the purpose of giving such directions, the Court may hear the applicant.”;

[SI 117/13]

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