Min for Justice v Koncis

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 29 July 2011
• Neutral Citation: [2011] IESC 37
• Date: 29 July 2011
• Court: Supreme Court

[2011] IESC 37

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

[Appeal No: 368/08]

Min for Justice v Koncis

In the matter of the European Arrest Warrant Act, 2003

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Kaspars Koncis

Respondent/Appellant

CONSTITUTION ART 40.4.2

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 23

CONSTITUTION ART 40

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 23.2

MIN FOR JUSTICE v O FALLUIN ORSE FALLON 2011 2 ILRM 1 2010/35/8816 2010 IESC 37

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN ARREST WARRANT ACT 2003 S20

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S78

EUROPEAN ARREST WARRANT ACT 2003 S20(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 5

EXTRADITION LAW

European arrest warrant

Third warrant - Same offences - Extant High Court order - Unlawful arrest and detention pursuant to previous order - Fair procedures - Constitutional justice - Abuse of process - Res judicata - Prejudice - Habeas corpus - Onus of proof - Time limits - Admissibility of letter from prosecutor - Whether prohibition against surrender where second warrant extant - Whether earlier order operated as bar to proceedings - Whether third warrant should have been issued - Whether error of law - Whether fair procedures denied - Whether letter from body other than issuing judicial authority admissible - Minister for Justice, Equality and Law Reform v Falluin [2010] IESC 37, [2011] 2 IRLM 1 and S(D) v Judges of the Cork Circuit Court [2008] IESC 37, [2008] 4 IR 379 considered - European Arrest Warrant Act 2003 (No 45), ss 10, 16, 20, 23, 37 and 45 - Criminal Justice (Terrorist Offences) Act 2005 (No 2), s 78 - Constitution of Ireland 1937, Art 40.4.2 - Council Framework Decision (13/6/02), art 23 - Appeal dismissed (368/2008 - SC - 29/07/2011) [2011] IESC 37

Min for Justis v Koncis

Facts An order of surrender had been made in respect of the respondent/appellant pursuant to the European Arrest Warrant Act, 2003. There had been a number of issues with previous warrants and these had been set aside. The appellant had been arrested on foot of a third warrant and an order for his surrender had been made on foot of this warrant by the High Court (Peart J, 12/11/08). It was submitted by the appellant that there was already an extant order of surrender in existence in respect of the same offences. The appellant had been denied fair procedures and the warrant in question had not been duly issued. The High Court had erred in placing the onus regarding the applicability of the legislation in question and the relevant time limits had not been complied with. Issue was also taken with the admissibility of a letter received from the prosecutor's office in Latvia and reliance by the High Court on statements contained in the letter.

Held by the Supreme Court (Denham CJ delivering judgment) in dismissing the appeal. Provided fair procedures had been complied with there was nothing to prevent a subsequent warrant being issued in respect of the same offences. The subsequent warrant had superseded the previous warrants. The European Arrest Warrant Scheme sought to implement the principle the mutual recognition between different States. The High Court had admitted the disputed evidence on the basis of mutual recognition and judicial cooperation.

Reporter: R.F.

1 This is an appeal on behalf of Kaspars Koncis, the respondent/appellant, referred to as "the appellant", against the judgment and order of the High Court (Peart J.), of the 12 ^th November, 2008, wherein the appellant was ordered to be surrendered to Latvia pursuant to the terms of the European Arrest Warrant Act, 2003.

2 There is a history behind the order of the High Court.

3 On the 4 ^th December, 2004, the Latvian authorities first issued a European arrest warrant seeking the appellant so that he might be prosecuted for four offences allegedly committed in 2004. That warrant was sent to Ireland but it was never endorsed for execution.

4 A second warrant for the same offences was issued on the 21 ^st September, 2005 and was endorsed by the High Court on the 3 ^rd August, 2006.

5 The appellant was arrested on the 23 ^rd August, 2006 and having been refused bail he was remanded in custody in Cloverhill Prison where he remained for six months.

6 On the 24 ^th November, 2006, the High Court made an order for his surrender to Latvia under this second warrant so that he could be prosecuted there for the offences in the warrant.

7 The appellant appealed against that surrender order. However, he discovered that he had been convicted and sentenced in Latvia in his absence for the offences for which the Latvian authorities sought on the European arrest warrant to prosecute him.

8 The appellant applied for his release under Article 40.4.2 of the Constitution. On the 20 ^th February, 2007 the appellant was released by the High Court (Peart J.).

9 It appears that the Latvian convictions were set aside on the 27 ^th April, 2007. He was once more sought to be prosecuted on the offences alleged in the second warrant. The Minister was informed of this on the 22 ^nd June, 2007. The warrant was not withdrawn and the Latvian authorities maintained their surrender request.

10 On the 13 ^th November, 2007, on the advice of the Minister, the Latvian authorities issued a third warrant. The Minister received that warrant on the 3 ^rd December, 2007.

11 On the 21 ^st December, 2007 the appellant withdrew his appeal against the surrender order on the second warrant. The Supreme Court struck out the appeal, on consent.

12 On the 13 ^th February, 2008, the Minister applied ex parte to the High Court to vacate the indorsement and surrender orders made by that court on the second warrant on the 3 ^rd August, 2006, and the 24 ^th November, 2006. That application was granted by the High Court (McKechnie J.).

13 The High Court (McKechnie J.) then indorsed the third warrant for execution.

14 On the 11 ^th March, 2008 the appellant was arrested and brought before the High Court on the third warrant.

15 On the 29 ^th July, 2008, the High Court (McKechnie J.), by consent, vacated his previous order and thereby restored the indorsement of Peart J.'s previous order for surrender on the second warrant.

16 On the 14 ^th October, 2008, the Minister brought another motion on notice to set aside the indorsement and surrender orders on the second warrant. This application was opposed but Peart J. dealt with it in conjunction with the s.16 hearing on the third warrant.

17 On the 12 ^th November, 2008, Peart J. made a surrender order against the appellant on the third warrant and made no order on the Minister's motion to set aside the earlier surrender order.

18 This is an appeal by the appellant from the said order in relation to the third warrant.

Warrants

19 All three warrants have been in relation to the same offences. The offences are described in the third warrant as:-

"This warrant relates on four offences."

1 On May 9, 2004, at 16.50 Kaspars Koncis being previously punished about committing the steal, being in the influence of alcoholic drinks, in the group of persons with previous agreement - with Ritvars Kupcs, guided by avaricious motives, being in the bar "Oga" of SIA "Ilva Club" at 3, Upes street, Madona, with the aim to acquire alien property, using force attacked the barwoman Linda Vismane. At first R. Kupcs came to barwoman and deliberately with hand seized her throat and dragged her to the warehouse premise, giving the possibility to K. Koncis to get alien property. There R. Kupcs continued use violence to L. Vismane, deliberately straggling her throat with hand. When L. Vismane had the opportunity to push back R. Kupcs from herself, R. Kupcs deliberately not less than once kicked, L. Vismane on head with hand. During R. Kupcs used violence against L. Vismane, K. Koncis went to cash desk, which was near bar and robbed from there the property of SIA "Ilva Club" - money totally in amount of 125,25 LVL, from the bar robbed the bottle of 1 litre of cognac "Otard", worth 60 LVL, one bottle of volume 0.5 l of cognac "Baltais Starkis" 9,- LVL worth and opened bottle of volume 11 of cognac "Metaxa" -18 LVL worth, as well robbed the change money of play machines of SIA "Barklajs Speles" totally in amount of 400, -LVL, and the money collected for playing - in amount of 16,35 LVL.

Thus K. Koncis using violence in the group of persons committed the robbery of alien property totally in amount of 628,60 LVL, committing to the victims SIA "Ilva Club" and SIA "Barklajs Speles" material loss in the mentioned amount.

2 Kaspars Koncis on May 29, 2004, at 2.00 in Madona, near the bridge of song platform, which is Situated between song platform of Madona and Akmenu street, in the city conditions, in the place, where is the transition of people, kicked Normund Reiniks two times with the fist on head near the face. K. Koncis kicked N. Reiniks after Edgars Koncis had asked Normund Reiniks to give to smoke. Getting the answer from N. Reiniks, that he does not smoke, K. Koncis kicked the victim with such violence, that from the first hit the eyes of N. Reiniks begun to water, but from the second hit N. Reiniks fell down on the earth in the lawn near the bridge. Kaspars Koncis in the group of persons with Edgars Koncis together kicked to the victim, who layed on the earth, not less than ten times, kicked on head and body. Thus K. Koncis in the...