Minister for Justice and Equality v Ebaid (Approved)

Factual and Procedural Background

The Applicant seeks the surrender of the Respondent to The Kingdom of Spain pursuant to a European Arrest Warrant ("EAW") dated 31 July 2014. The EAW was issued by a Judge of the National High Court of Spain to prosecute the Respondent for alleged drug trafficking offences. The Respondent was arrested on 14 April 2021 following a Schengen Information System II alert and brought before the High Court. The court confirmed the identity of the Respondent as the person named in the EAW and found no statutory bars to surrender under the European Arrest Warrant Act 2003 ("the Act of 2003"). The offence meets the minimum gravity requirements, carrying a maximum penalty exceeding twelve months' imprisonment. The Respondent objected to surrender primarily on grounds of double jeopardy, asserting he had already been tried and acquitted of the offence in Egypt. The Court examined the chronology of events, including the Respondent's detention in Spain, subsequent release, travel to Ireland and Egypt, detention and acquittal in Egypt, and the ongoing prosecution sought by Spain. The Court also considered affidavits, translations, and correspondence with Spanish and Egyptian authorities to determine whether surrender was permissible.

Legal Issues Presented

1. Whether surrender of the Respondent to Spain is prohibited under Section 41(2) of the European Arrest Warrant Act 2003 on the basis of double jeopardy (ne bis in idem) because the Respondent has been finally judged by a third country (Egypt) for the same acts.
2. Whether the Respondent’s surrender is otherwise prohibited by the Act of 2003 (including any abuse of process arguments).

Arguments of the Parties

Respondent's Arguments

• The Respondent contends that he has already been tried and acquitted of the alleged offence in Egypt, which constitutes a bar to surrender under Section 41(2) of the Act of 2003.
• The Respondent initially raised an objection regarding the extra-territorial nature of the offence under Section 44 of the Act but later abandoned this point.
• The Respondent argued that surrender would amount to an abuse of process when considering all relevant factors cumulatively.

Applicant's Arguments

• The Applicant maintains that the Respondent has not been finally judged in a manner that bars surrender, asserting that the Spanish authorities still intend to prosecute the Respondent.
• The Applicant disputes the Respondent’s claim that the Egyptian acquittal bars surrender, noting that the Respondent was never surrendered to Egypt and that the Spanish investigation and prosecution remain independent.
• The Applicant does not contest that if the Court finds a final judgment in a third country for the same acts, surrender would be prohibited without discretion.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the legislative framework under the European Arrest Warrant Act 2003, particularly Section 41(2), which prohibits surrender if the person has already been finally judged for the same acts in a third country, provided any sentence has been served or is no longer enforceable. The Court analyzed the concept of "same acts" as defined by CJEU jurisprudence, focusing on the identity of material facts rather than legal classification.

The Court reviewed the chronology of events, including the Respondent’s detention in Spain, the Spanish courts’ rulings on jurisdiction, the issuance of the EAW, and the Respondent’s subsequent detention and acquittal in Egypt. Affidavits and translated documents from the Respondent’s Egyptian lawyer confirmed a final acquittal by the Egyptian court on 23 June 2019, which could not be appealed and was approved by the Attorney General. The Court found the authenticity and bona fides of these documents credible and undisputed.

The Spanish issuing judicial authority denied knowledge of the Egyptian proceedings and asserted the Respondent was never surrendered to Egypt for trial, emphasizing that the Spanish investigation and prosecution remained independent. Despite multiple requests, the Egyptian authorities did not respond, and Interpol confirmed the outstanding Spanish red notice.

Applying the legal principles, the Court concluded that the Respondent had been finally judged in Egypt for the same acts as those for which Spain seeks surrender. The Egyptian judgment was final and barred further prosecution. Consequently, the Court held that surrender is prohibited under Section 41(2) of the 2003 Act.

The Court noted that it had not adjudicated on the Respondent’s abuse of process argument due to lack of submissions from the Applicant and absence of oral argument on this point.

Holding and Implications

The Court’s final ruling is that the surrender of the Respondent to The Kingdom of Spain is REFUSED pursuant to Section 41(2) of the European Arrest Warrant Act 2003 on the basis of double jeopardy.

The direct effect of this decision is that the Respondent will not be surrendered to Spain for the alleged drug trafficking offences due to a final acquittal in Egypt for the same acts. The Court did not set any new precedent and expressly declined to rule on other potential bars such as abuse of process in the absence of submissions.