STATUTORY INSTRUMENTS

S.I. No. 725 of 2004

Extradition Act 1965 (Application of Part II) (Amendment) (No. 2) Order 2004

WHEREAS, on 15 October 2004 the State withdrew the declaration to the European Convention on Extradition done at Paris on 13 December 1957 made on 13 May 1991 for the purposes of paragraph 3 of Article 28 of that Convention;

NOW I, Dermot Ahern, Minister for Foreign Affairs, in the exercise of the powers conferred on me by section 8 (as amended by section 49 of the European Arrest Warrant Act 2003 (No. 45 of 2003)) of the Extradition Act 1965 (No. 17 of 1965) and after consultation with the Minister for Justice, Equality and Law Reform, hereby make the following order:

1          (1)        This Order may be cited as the Extradition Act 1965 (Application of Part II) (Amendment) (No. 2) Order 2004.

(2)        This Order comes into operation on 24 November 2004.

2.              The Extradition Act 1965 (Application of Part II) Order 2000 ( S.I. No. 474 of 2000 ) is amended by --

(a)       the substitution of the following Article for Article 3:

“3.      (1)        Subject to paragraphs (3) and (4) of this Article and Article 4 of this Order, Part II of the Act of 1965 shall apply in relation to the countries, places and territories set out in the Table (inserted by Article 3(c) of, and Schedule 2 to, the Extradition Act 1965 (Application of Part II) (Amendment) (No.2) Order 2004) other than a Member State designated by the Minister for Foreign Affairs under section 3 of the European Arrest Warrant Act 2003 ( No. 45 of 2003 ).

(2)        Part II of the Act of 1965 shall apply in relation to the Channel Islands and the Isle of Man.

(3)        Part II of the Act of 1965 shall apply in relation to the Republic of Austria where the offence concerned was committed or alleged to have been committed before 7 August 2002.

(4)        Part II of the Act of 1965 shall apply in relation to the French Republic where the offence concerned was committed or alleged to have been committed before 1 November 1993.”,

(b)        the substitution of the Part set out in Schedule 1 to this Order for Part B of Schedule 1, and

(c)        the substitution of the Table set out in Schedule 2 to this Order for the Table set out in Schedule 10.

SCHEDULE 1

“PART B

Reservations and Declarations made by the State to the European Convention on Extradition

Declaration contained in a letter from the Ministry of External Affairs of Ireland, dated 2 May 1966, handed to the Secretary General made at the time of signature and deposit of the instrument of ratification, on the same day:

I have the honour to declare, in accordance with Article 6 of the Convention, that the term “national” in the Convention is hereby defined as meaning “citizens of Ireland” as far as my Government is concerned.

Reservation contained in the instrument of ratification, deposited on 2 May 1966:

The Irish authorities will not grant extradition if final judgment in respect of the offence for which extradition is requested has been passed in a third State on the person claimed.

Declaration made at the time of confirmation of ratification, on 12 July 1988:

A decision of the Irish Supreme Court has made it impossible for Ireland to comply with its international obligations under the European Convention on Extradition.

The Court ruled that Ireland was not bound by its ratification of a similar extradition Treaty as the approval of Dáil Éireann of the terms of that Treaty had not been obtained prior to ratification as is required by the Constitution of Ireland. The said Supreme Court Decision serves as a binding precedent in all future extradition cases.

The same circumstance applies in the case of the European Convention on Extradition. Dáil approval of the terms thereof was not obtained prior to ratification of the said Convention on behalf of the Government of Ireland in 1966. Consequently, in the event of a court challenge, Ireland’s ratification in 1966 is likely to be declared invalid under domestic law.

In order to rectify this position, Dáil Éireann approved the terms of the European Convention on Extradition on 29 June 1988. It is now necessary, for the purposes of domestic requirements, for the Government of Ireland to confirm the earlier ratification by way of deposit of a new instrument of ratification.

Declaration contained in a Note Verbale from the Permanent Representation of Ireland, dated 14 October 2004, registered at the Secretariat General on 15 October 2004:

The Government of Ireland, in accordance with Article 28, paragraph 3, of the European Convention on Extradition, 1957, hereby notifies the Secretary General of the Council of Europe that Ireland shall apply the Framework Decision of the Council of the European Union (2002/584/JHA) of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States in relation to Member States of the European Union, insofar as the Framework Decision is applicable in relations between Ireland and the other Member State.

Declaration contained in a Note Verbale from the Permanent Representation of Ireland, dated 14 October 2004, registered at the Secretariat General on 15 October 2004:

The Government of Ireland hereby notifies the Secretary General of the Council of Europe that Ireland shall apply the European Convention on Extradition, 1957, to the United Kingdom territories of the Channel Islands and the Isle of Man.”

SCHEDULE 2

“TABLE

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

The effect of this Order is to amend the Extradition Act 1965 (Application of Part II) Order 2000 by applying the provisions of Part II of the enabling Act to the countries, places and territories (including the Channel Islands and the Isle of Man) set out in the Table, other than those Member States of the European Union designated by the Minister for Foreign Affairs under section 3 of the European Arrest Warrant Act 2003 . It also provides for the continuing application Part II of the enabling Act to Austria and France where the offence concerned was committed or alleged to have been committed before 7 August 2002 and 1 November 1993 respectively.