Attorney General v Renaldas Pocevicius

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Edwards
• Judgment Date: 09 April 2013
• Neutral Citation: [2013] IEHC 229
• Date: 09 April 2013

[2013] IEHC 229

THE HIGH COURT

Record No. 311 EXT / 2011

AG v Pocevicius

No Redaction Needed

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EXTRADITION ACTS 1965 to 2001

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

AND

RENALDAS POCEVICIUS

RESPONDENT

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S8

EXTRADITION ACT 1965 S8(1)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S57

EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000

EXTRADITION ACT 1965 S23

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 12

EXTRADITION ACT 1965 S26(1)

EXTRADITION (AMDT) ACT 1994 S7

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20

EXTRADITION ACT 1965 S3

EXTRADITION ACT 1965 S29(1)

EXTRADITION ACT 1965 S25

EXTRADITION ACT 1965 S26(1)(A)

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 2

EXTRADITION ACT 1965 S25(1)(D)

EXTRADITION ACT 1965 S25(1)(E)

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 1

EXTRADITION ACT 1965 S9

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 12(2)(B)

EXTRADITION ACT 1965 S25(1)(B)

EXTRADITION ACT 1965 S15

EXTRADITION ACT 1965 S10

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S11

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

EXTRADITION ACT 1965 S10(3)

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

CONVENTION IMPLEMENTING THE SCHENGEN AGREEMENT 14.6.1985 ART 95

OLSSON v MIN FOR JUSTICE 2011 1 IR 384 2011 2 ILRM 395 2011/43/12423 2011 IESC 1

ISMAIL, IN RE 1999 1 AC 320 1998 3 WLR 495 1998 3 AER 1007

CRIMINAL JUSTICE ACT 1999 S42

CRIMINAL JUSTICE ACT 1984 S10

BRIEN v JUDGE KING & ORS 1997 1 ILRM 338 1996/9/2765

EXTRADITION ACT 1965 PART III

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

EUROPEAN ARREST WARRANT ACT 2003 S21A

AG, PEOPLE v O'CALLAGHAN 1966 IR 501 1968 102 ILTR 45

MISUSE OF DRUGS ACT 1977 S20

ASSANGE v SWEDISH PROSECUTION AUTHORITY UNREP 2.11.2011 2011 EWHC 2849 (ADMIN)

MIN FOR JUSTICE v MCARDLE 2005 4 IR 260 2006 1 ILRM 263 2005/38/7955 2005 IESC 76

MIN FOR JUSTICE v CONNOLLY UNREP EDWARDS 6.12.2012 2012 IEHC 575

Extradition - Arrest warrant - Warrant to face prosecution or investigation - Abuse of process - Undue delay - Proportionality - Relevant jurisdiction - Extradition Act 1965 - European Convention on Extradition 1957 - Constitution of Ireland

Facts: The respondent was the subject of extradition proceedings following an application by the Kingdom of Norway for him to be extradited to face prosecution in relation to a charge of importing 5 kilograms of methamphetamine into Norway from Lithuania on the 25th September 2008. It was the respondents” contention that he should not be surrendered to Norway because the aim of the arrest warrant was to bring him before a Norwegian police authority for questioning. In those circumstances, it was alleged he was wanted in relation to an investigation and not a prosecution. He claimed this was evident in the fact that the application from Norway failed to furnish the information required by Article 12(2)(b) of the European Convention on Extradition 1957 and Section 25(b) of the Extradition Act 1965, particularly where the offence had allegedly occurred.

The respondent further argued that the arrest warrant was not immediately enforceable, and should therefore be refused. Another point of objection was that since the respondent was wanted specifically for questioning by police, his extradition would be a disproportionate measure and a breach of his rights pursuant to the Constitution of Ireland. It was further claimed that the requesting statement had unduly delayed seeking his surrender or notifying him of the existence of the serious criminal allegations being made against him. Finally, he argued that he was in Ireland on the date of the alleged offence and so if he was to face criminal charges, he should do so in Ireland.

Held by Edwards J that on consideration of the evidence before him, it was clear that the respondent”s extradition was sought with a view to prosecution. Further investigations may be required before he would be indicted but it was at least evident that the investigation of the crime was not the primary reason for his surrender. It was also noted that the Norwegian police prosecuting authority and the public prosecutor both agreed that there would be a prosecution and that the evidence currently gathered would be sufficient to seek a prosecution at that stage if necessary. The court had some concerns that there was no evidence from the Director General of Public Prosecutions, who the only body competent to issue an indictment, whether a prosecution was inevitable. However, it was held that that the public prosecutor was part of the same service as the Director General of Public Prosecutions and the recommendation of the public prosecutor would have a great influence in determining whether an indictment would be issued. On that basis, it was determined that the respondent was wanted primarily for prosecution and that his surrender would not constitute a breach of any rights held under the Constitution of Ireland, notably his right to liberty. His objection to this point was rejected.

As it had been held that the respondent”s surrender was primarily for the purpose of prosecution, the issue of proportionality was held to be moot as it was made on the premise that the sole reason for his extradition was investigation. Similarly, the respondent”s argument that the arrest warrant was not immediate enforceable was rejected on the same basis. In terms of the respondent”s assertion he was in Ireland at the time of the offence, it was held that at present that claim was being investigated by Norwegian authorities. However, there didn”t appear to be any allegation that any act was committed by the respondent when he was in Ireland in relation to his involvement in the attempted drug smuggling operation. The Court was therefore not satisfied that the offence in question should be regarded under the law of Ireland as having been committed in this state.

Order pursuant to section 29(1) of the Extradition Act 1965 made.

1 JUDGMENT of Mr. Justice Edwards delivered on the 9th day of April 2013.

Introduction

2 In these proceedings the Kingdom of Norway (hereinafter Norway) seeks the extradition of the respondent with a view to prosecuting him in Norway for the offence of importing approximately 5 kilograms of methamphetamine to Norway from Lithuania on the 25 ^th September, 2008, contrary to section 162(1) cf. subsection 3, first sentence of the Norwegian General Civil Penal Code, an Act of the 22 ^nd May, 1902, No.10 with subsequent amendments, the latest made by Act of the 21 ^st December, 2005m No.131 (hereafter "the Norwegian General Civil Penal Code").

3 It is alleged that the respondent was due to receive this methamphetamine at Stavanger from a man called Michail Oleinik. He was the person who had physically brought the drugs into Norway via the Swedish frontier with Norway just before 4pm on the 24 ^th September, 2008. Mr. Oleinik was arrested in Stavanger on the 25 ^th September, 2008.

Legislation and international agreements

4 The application of Part II of the Extradition Act 1965 (hereinafter the Act of 1965) is governed by s.8 thereof.

5 S.8 (1) (as substituted by s. 57 of the Criminal Justice (Terrorist Offences) Act, 2005) provides:

"Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Minister is satisfied that reciprocal facilities to that effect will be afforded by another country, the Minister for Foreign Affairs may, after consultation with the Minister, by order apply this Part-"

(a) in relation to that country, or

(b) in relation to a place or territory for whose external relations that country is (in whole or in part) responsible."

6 Norway is a party to the European Convention on Extradition 1957 and the Minister for Foreign Affairs has applied Part II of the Act of 1965 to Norway by means of the Extradition Act 1965 (Application of Part II) Order, 2000 ( S.I. No. 474 of 2000).

7 S.23 of the Act of 1965 provides that:

"…a request for the extradition of any person shall be made in writing and shall be communicated by (a) a diplomatic agent of the requesting country, accredited to the State, or (b) any other means provided in the relevant extradition provisions."

8 Article 12 of the European Convention on Extradition 1957 provides:

9 2 "1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.

10 2. The request shall be supported by:

11 a a. the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;

12 b b. a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and

13 c c. a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality."

14 Under s. 26(1) of the Act of 1965 (as amended by s. 7 of the Extradition (Amendment) Act 1994, and by s.20 of the Extradition...