French v Public Prosecutor of the Central Department of Investigation and Prosecution in Lisbon Portugal (Gibraltar)

Exceeding the 60-day period for deciding whether to execute a European arrest warrant does not, by itself, entitle the requested person to release. Under the European Arrest Warrant Act 2004, sections 12(6) and 12(7) require notification of the issuing authority, but do not terminate the proceedings or remove the power to remand in custody. The Framework Decision contains no automatic-release rule for delay in making the surrender decision. Article 17(5) may require continued custody to preserve effective surrender. This differs from the express release rule where surrender itself is delayed. Excessive judicial delay may nevertheless make detention unlawful under article 5(1)(f) of the European Convention on Human Rights.

The appellant was arrested in Gibraltar on 18 January 2012 under a European arrest warrant issued by the Portuguese prosecuting authority. On 23 March 2012, after 65 days, the Magistrates’ Court ordered his surrender. The Supreme Court of Gibraltar dismissed his appeal on 16 April 2012.

The Board permitted one ground of further appeal: whether the expiry of 60 days without a surrender decision made the order unlawful and required the appellant’s release. The issue concerned the interaction between the Framework Decision, the European Arrest Warrant Act 2004, and Gibraltar’s constitutional and human-rights protections.

The Board dismissed the appeal.

1. Section 12(6) of the European Arrest Warrant Act 2004 identifies the consequence of failing to decide within 60 days. The court must direct the Governor to inform the issuing judicial authority of the reasons for delay. Although the direction should be made immediately, failure to make it did not confer a right to release. The breach was minor in the circumstances.
2. Section 12(7) confirms the same position after 90 days. The proceedings continue and the court retains its power under section 10(a) to remand the person in custody. Section 12(4), by contrast, expressly requires release where the court decides not to make a surrender order. Parliament therefore knew how to create an automatic-release consequence.
3. The Framework Decision did not alter that conclusion. Articles 15(1) and 17(1) strongly encourage urgency. Article 17(4) permits an extension where the decision cannot be made within 60 days, provided the issuing authority is informed, while article 17(7) recognises exceptional delay. Article 17 contains no automatic-release provision after 60 or 90 days. Article 17(5) instead requires the executing authority to maintain the conditions necessary for effective surrender, which may require continued custody. Article 23(5), dealing with delay after a surrender order, expressly provides for release and demonstrates the contrast.
4. The Board respectfully agreed with the analysis of the Irish Supreme Court in Dundon v The Governor of Cloverhill Prison [2006] 1 IR 518. The corresponding Irish provisions did not create an automatic right to release, and the Framework Decision’s time limits did not confer individual rights of that kind.
5. As a postscript, the Board explained that excessive delay may still require release under article 5(1)(f) of the ECHR. Detention can become unlawful if extradition proceedings are not pursued with due diligence, or if detention exceeds what is reasonably required for the purpose pursued. The appellant did not contend that the delays in this case reached that threshold.

The Board advised that the appeal be dismissed and, subject to any contrary submissions within 14 days, that the appellant pay the respondent’s costs.

• Privy Council. On 13 June 2013, the Board dismissed the appeal and advised that costs be paid by the appellant.
• Supreme Court of Gibraltar. On 16 April 2012, the court dismissed the appellant’s appeal against the surrender order.
• Magistrates’ Court of Gibraltar. On 23 March 2012, the court ordered the appellant’s surrender to Portugal under the European arrest warrant.