Nikola Katic v Republic of Croatia (Gibraltar)

Where an European arrest warrant concerns a resident facing prosecution, article 5(3) of the Framework Decision permits the executing state to make a return undertaking mandatory. Under the European Arrest Warrant Act 2004, a required undertaking is a condition precedent to surrender and must be provided before the surrender order is made. It cannot be supplied retrospectively to cure a defective order on appeal. A person’s voluntary absence from proceedings does not justify construing the Act contrary to its express terms. An in-absentia conviction followed by a right to retrial is treated as a prosecution warrant for these purposes.

The appellant, a resident of Gibraltar, was arrested under a European arrest warrant seeking his surrender to Croatia following his conviction in absentia for conspiracy to import cocaine. The warrant stated that he would have a right to a retrial or rehearing in Croatia. The Stipendiary Magistrate ordered surrender without receiving the return undertaking required for a Gibraltar resident. The Croatian authorities supplied the undertaking later, during the appeal.

The Supreme Court of Gibraltar dismissed the appeal, holding that the undertaking was not mandatory because the appellant had voluntarily absented himself from the Croatian proceedings. The central issues before the Board were whether the Framework Decision permitted a mandatory return condition, whether the European Arrest Warrant Act 2004 imposed such a condition, and whether the omission could be cured on appeal.

Appeal allowed unanimously. The Board advised that the appellant be discharged under section 45(3) of the European Arrest Warrant Act 2004 and that the surrender order be quashed.

1. Article 5(3) of Council Framework Decision 2002/584/JHA permits an executing Member State to legislate for a mandatory condition that a national or resident surrendered for prosecution is returned to serve any sentence imposed. The provision does not require the executing court to retain a discretion. The choice whether to impose a mandatory condition belongs to the Member State.
2. In Proceedings concerning IB (Case C-306/09; [2011] 1 WLR 2227), the Court of Justice confirmed that an in-absentia sentence followed by a new trial could be subject to such a return condition. Consequently, this warrant was to be treated as a prosecution warrant. The appellant’s status as a fugitive did not disapply article 5(3).
3. The opening words of section 8A, read with section 12(2)(a), made the required undertaking a condition precedent to surrender. The phrase where appropriate identified the circumstances in which the condition applied; it did not confer a discretion to dispense with it. The undertaking therefore had to be provided before the Magistrates’ Court ordered surrender. A later undertaking could not cure the defect on appeal, although a fresh warrant supported by the undertaking could be issued.
4. The Board applied ordinary statutory interpretation principles, including the approach stated in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd ([2001] 2 AC 349). The purposive construction adopted below was contrary to the express statutory language. Poland v Pawlikowska-Zawada ([2019] EWHC 985 (Admin)) was not strictly on point and did not justify reading down the statutory condition.

• Privy Council: Appeal allowed. The appellant was ordered to be discharged and the surrender order quashed.
• Supreme Court of Gibraltar: Appeal from the Magistrates’ Court dismissed. The court held that the return undertaking was not mandatory in the circumstances.
• Stipendiary Magistrate: Ordered the appellant’s surrender to Croatia without the required undertaking having been provided before the order.