The Supreme Court has ruled that the High Court retains an inherent discretion to grant bail to a person whose surrender to another state has been ordered under the European Arrest Warrant Act 2003. It dismissed Algimantas Butenas’s appeal seeking release under Article 40 of the Constitution, leaving any bail application for the High Court to decide.
Mr Butenas had been arrested under a European Arrest Warrant issued by a judicial authority in Lithuania. On 24 November 2006, the High Court ordered his surrender to Lithuania for trial and, under section 16(4) of the 2003 Act, committed him to prison pending surrender. He did not appeal either order.
He later argued that section 16(4) required detention in every case and prevented the High Court from releasing a person on bail subject to conditions. He said that made the detention order unlawful and the provision unconstitutional. The State argued that the section did not clearly remove the High Court’s inherent power to grant bail.
The Supreme Court rejected the constitutional challenge, but on grounds different from those given by the High Court. It held that section 16(4) does not oust the High Court’s discretion to grant bail pending surrender. The section’s purpose is to ensure that a person is available for transfer to the requesting state; in an appropriate case, the Court said, that purpose may be met through bail with conditions.
The Court said that if the Oireachtas intended to remove the bail jurisdiction in all cases, it would have had to do so explicitly and unambiguously. It found that the section did not show such an intention. The Court therefore found Mr Butenas’s claim that section 16(4) was unconstitutional to be unfounded.
The ruling did not itself grant bail or direct Mr Butenas’s release. The Court said he could apply to the High Court for bail, where the decision would be discretionary and the State would have an opportunity to make submissions. It refused his Article 40 application and dismissed the appeal.