Kairys v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 05 January 2023
• Neutral Citation: [2023] IECA 2
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2023/4

In the Matter of an Application Pursuant to Article 40.4.20 of the Constitution, and in the Matter of an Appeal:

Between/

Danas Kairys

Applicant/Appellant

and

The Governor of Cloverhill Prison

Respondent

[2023] IECA 2

Edwards J.

Donnelly J.

Binchy J.

Record No. 2023/4

THE COURT OF APPEAL

Unlawful detention – European arrest warrant – Citizenship Directive – Appellant appealing against the refusal to order the respondent to produce the body of the appellant and to certify the grounds of his detention – Whether the appellant’s application was misconceived

Facts: The appellant, Mr Kairys, appealed to the Court of Appeal against the judgment and order of the High Court (Stack J) of the 4th of January 2023, to whom a complaint was made pursuant to Article 40.4.20 of the Constitution by or on behalf of the appellant, that the appellant was being unlawfully detained, and which following an ex parte inquiry conducted forthwith into the said complaint, refused to order the respondent, the Governor of Cloverhill Prison, in whose custody the appellant was detained, to produce the body of the appellant before the High Court on a named day and to certify in writing the grounds of his detention, and to further, upon the body of the appellant being produced before the High Court, and after giving the respondent an opportunity of justifying the detention, to order the release of the appellant from such detention unless satisfied that he was being detained in accordance with the law. The appellant’s complaint was that the High Court judge erred in closing the inquiry she had opened at the end of the ex parte stage, and in failing to require the respondent at a second stage hearing to produce the appellant before the court and justify the appellant’s continued detention, notwithstanding that the High Court judge was satisfied at the conclusion of the ex parte stage that the application was misconceived, and in effect unstateable, and had expressed herself as having “no doubts about the lawfulness of the detention of the applicant”.

Held by Edwards J that the High Court judge was entirely correct in regarding the appellant’s application as being misconceived. Edwards J did not consider that there was any entitlement on the appellant’s part to resist his surrender on foot of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 (the Citizenship Directive). Edwards J held that the Citizenship Directive does not impact at all on a European arrest warrant (EAW). He considered that there was a valid order for the detention and surrender of the appellant. Edwards J held that there was no basis for impugning that order and the Court’s approach in regard to it must be guided by long-established jurisprudence such as that enunciated in FX v Clinical Director of the CMH [2014] 1 IR 280 and Ryan v Governor of Midlands Prison [2014] IESC 54. He held that there was nothing to suggest that there had been any denial of justice or fundamental flaw in the process by means of which the underlying European Arrest Warrant Act 2003 s. 16 order was made. He was satisfied that the High Court judge was correct in closing her inquiry at the end of the ex parte stage and in refusing to require the respondent to produce the body of the appellant and to certify and justify the grounds of his continued detention. Edwards J found that she gave cogent reasons for the views that she had arrived at. The orders made by her were entirely appropriate in his assessment.

Edwards J dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered ( ex tempore) byMr Justice Edwardson the 5 ^th of January, 2023.

Introduction:

1 This is an appeal against the judgment and order of the High Court (Stack J.) of the 4 ^th of January 2023, to whom a complaint was made pursuant to Article 40.4.20 of the Constitution by or on behalf of the applicant/appellant (hereinafter the appellant), that the appellant was being unlawfully detained, and which following an ex-parte inquiry conducted forthwith into the said complaint, refused to order the person, i.e., the respondent, in whose custody the appellant was detained, to produce the body of the appellant before the High Court on a named day and to certify in writing the grounds of his detention, and to further, upon the body of the appellant being produced before the High Court, and after giving the respondent an opportunity of justifying the detention, to order the release of the appellant from such detention unless satisfied that he is being detained in accordance with the law.

2 Briefly put, the appellant's complaint is that the High Court judge erred in closing the inquiry she had opened at the end of the ex-parte stage, and in failing to require the respondent at a second stage hearing to produce the appellant before the court and justify the appellant's continued detention, notwithstanding that the High Court judge was satisfied at the conclusion of the ex-parte stage that the application was misconceived, and in effect unstateable, and had expressed herself as having “no doubts about the lawfulness of the detention of the applicant.”.

Background to the application

3 The appellant is a Lithuanian citizen whom it is contended has established residency and has put down roots in Ireland. The appellant is wanted in the Republic of Lithuania to serve the outstanding balance of a sentence of three years and seven months imposed upon him in respect of 13 offences of which he was convicted by a court in that state. The Panevezys Regional Court in Lithuania issued a European arrest warrant (EAW) on the 2 ^nd of May 2016 seeking the rendition of the appellant to the Republic of Lithuania so as to have him serve the outstanding portion of his sentence. That warrant was endorsed for execution in this jurisdiction on the 13 ^th of June 2016 and the appellant was arrested and brought before the High Court on the 30 ^th of March 2021 on foot of same.

4 The appellant unsuccessfully contested his surrender before the High Court, and that is the subject matter of the judgement of Burns (Paul) J. issued on the 31 ^st of January 2022 and bearing the neutral citation [2022] IEHC 57. Amongst the points relied upon by the appellant was his contention that he should not be surrendered because of the failure of the Irish State to implement Council Framework Decision 2008/909/JHA of the 27 ^th of November 2008, on the application of the principle of mutual recognition of judgments in criminal matters, imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. Following the dismissal of the appellant's objections to his surrender, the High Court duly made an order pursuant to s.16 of the European Arrest Warrant Act 2003 directing that the appellant should be surrendered to such person as was duly authorised by the Republic of Lithuania to receive him.

5 The appellant then unsuccessfully applied to the High Court judge for a certificate allowing him to appeal the order for his surrender on the basis that the case involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to an appellate court. The appellant later persuaded the Supreme Court to accept the case and the Supreme Court's determination in that regard bears the neutral citation [2022] IESCDET 75. The appellant also secured a stay on the s.16 order pending the outcome of the appeal. The matter was in due course heard before the Supreme Court which dismissed the appellant's appeal, giving its reasons for doing so in a judgment (delivered by Baker J. on behalf of that court) on the 22 ^nd of December 2022, and which bears the neutral citation [2022] IESC 53.

6 Following the dismissal of the appellant's appeal to the Supreme Court, the High Court...