Minister for Justice and Equality v Gherine
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] IEHC 501 |
| Court | High Court |
| Docket Number | [2014 No. 134 Ext] |
| Date | 28 July 2016 |
[2016] IEHC 501
[2014 No. 134 Ext]
THE HIGH COURT
Extradition – The European Arrest Warrant Act, 2003 – Council Framework Decision of 13th June, 2002 (2002/584/JHA) – Defects in European Arrest Warrant (EAW) – Nature and time of commission of offence.
Facts: Following the refusal of the High Court to surrender the respondent on the basis of the execution of the first European Arrest Warrant (EAW), the requesting state again sought the surrender of the respondent on the basis of the execution of the second EAW. The respondent objected to his surrender on the ground that there was non-compliance of s. 11 (1A) (f) of the European Arrest Warrant Act, 2003 in the said EAW.
Ms. Justice Donnelly refused to grant the surrender of the respondent. The Court held that though the respondent was wanted for serving the sentence of imprisonment in relation to the commission of single offence, yet the EAW failed to describe in details the time of the commission of the alleged offence despite repeated requests. The Court observed that the time of the commission of the offence was an important aspect in any criminal charge as it enabled the accused to consider the question of alibi and plead immunity on various grounds such as age. The Court opined that there should be detailed description of the offences alleged to have been committed so that the High Court could form an opinion on whether to endorse the EAW and establish correspondence. The Court held that an accused was entitled to know the precise nature of the crime for which his surrender was sought. The Court was of the view that it would not exercise its discretion under s. 20 of the Act of 2003 to seek further information from the requesting state given the persistent failure of that state to comply with that request.
The attempt by Italy to secure the surrender from Ireland of this respondent, together with his sister, Giliola Sadiku, has a protracted history. On 30th November, 2012, the High Court (Edwards J.) refused to surrender this respondent for the purpose of the prosecution of certain drugs offences on foot of a European Arrest Warrant (‘EAW’) issued by a judicial authority of the Italian Republic on 3rd October, 2008 (‘the first EAW’). The respondent was alleged to have participated in a variety of ways in the activities of an illicit drug trafficking organisation/enterprise.
The first EAW was received in this jurisdiction in late January 2009, and that EAW was endorsed by the High Court for execution on 4th February, 2009. On 24th April, 2012, the respondent was arrested on the first EAW, brought before the High Court and granted bail thereafter.
The respondent claimed in his points of objection to the first EAW, that he was at risk of double jeopardy. In the affidavit of his solicitor, a judgment was exhibited to the effect that he had been tried in absentia in Italy on 18th January, 2011, convicted of a single offence but acquitted of several others. He had been sentenced to thirteen years imprisonment in respect of the offence for which he was convicted.
As a result of those averments, the Irish central authority immediately sought further information from the issuing judicial authority. The reply from the Italian central authority was that:
‘…[t]his Office has no jurisdiction in relation to the two above-mentioned subjects. From information gathered shows [sic] that have been convicted by a judgment of the Court of Castrovillari of 18. 1.2011, Gigliola GHERINE penalty of ten years and six months in prison and Giuliano GHERINE penalty of thirteen years in prison. The judgment was upheld by the Court of Appeal of Catanzaro and the process is currently pending before the Court of Cassation in Rome.’
In his decision with respect to the first EAW, Edwards J. held at para. 13 of his judgment in Minister for Justice and Equality v. Gherine [2012] IEHC 535:
‘A person cannot be surrendered for the purpose of serving a sentence in relation to an offence on foot of a warrant that seeks his or her rendition for the purpose of prosecuting him or her for that offence.’
Edwards J. then stated at paras. 16-18 of the same judgment:
‘The Court wishes to state, however, that it regards what has occurred in this case as disconcerting and very serious. Even though the respondents were tried, and verdicts were rendered, in the issuing State as far back as the 18th of January 2011, neither the issuing judicial authority, nor the Italian Central Authority, saw fit to communicate that fact to the Irish Central Authority, or to cause it to be communicated to this Court as the executing judicial authority, until the 7th of November 2012, in excess of twenty two months later and only the day before the respondents' surrender hearings. They allowed the respondents to be arrested and deprived of their liberty (albeit only briefly) on foot of jurisdictionally flawed warrants, and they allowed this Court to unwittingly deal with the respondents for the last 7 months, as though they were fugitives, in respect of matters for which they had in fact been acquitted. Moreover, in respect of the single offence for which they have both been convicted, neither the issuing judicial authority, nor the Italian Central Authority, saw fit to ensure that this Court was advised that the respondents were no longer wanted for prosecution. The Irish Central Authority should have been advised immediately (if it had been so advised it would in turn immediately have advised this Court); the existing warrants should have been withdrawn; and if it was desired to pursue the respondents further it was incumbent on the Italian authorities to issue new European arrest warrants covering only the offence for which the respondents have each, respectively, been convicted and seeking their rendition for the purposes of having them serve the sentences of imprisonment imposed upon them.
The European arrest warrant system depends upon member states having mutual trust and confidence in each other. Moreover, it is predicated upon the principle of mutual recognition, which is described in recital no 6 to the Framework Decision as “the cornerstone of judicial co-operation”. This Court was asked to “recognise” the European arrest warrants in this case on the basis of mutual recognition, and further, on the basis of trust and confidence between member states, to give effect to European arrest warrants that purported to seek the respondents for the purpose of prosecuting them, in circumstances where they had already been tried!
While there may not have been a deliberate attempt to abuse this Court's process, what occurred in the present case, if replicated, could potentially have implications for the trust and confidence which this Court currently has in relation to the Italian State, its Court and institutions.’
Edwards J. was so concerned about the matter that he directed the central authority in the State to inform both the issuing judicial authority and Eurojust of the reasons for the court's refusal to order surrender in each of the cases. That information was passed on through the relevant channel.
On 10th May, 2013, the Office of the State Prosecutor General of Catanzaro, an issuing judicial authority of Italy, issued an EAW (‘the second EAW’) seeking the surrender of the respondent to serve the thirteen years sentence of imprisonment which had been imposed upon him by the Court of Appeal of Catanzaro on 20th February, 2012 and enforceable on 20th March, 2013 (which was stated on the second EAW to be an amendment of the judgment of 18th January, 2011 by the Court of Castrovillari). The second EAW was endorsed by the High Court on 1st July, 2014. It had been received in this jurisdiction under covering letter dated 13th May, 2013. The delay in the endorsement of the warrant is a matter of relevance to the proceedings herein. The circumstances leading to that delay will be outlined later in this judgment.
This second EAW was received under covering letter from the Ministry of Justice in Italy (‘the Ministry’), which is the designated central authority under the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedure between Member States (‘the 2002 Framework Decision’). The Ministry for Justice stated that it was very regretful for the ‘ disconcertment expressed by the Irish High Court since it is based on erroneous information.’ The Ministry pointed out that the first EAW had been sent to the Irish authorities on 19th January, 2009 when the respondent and his sister were under investigation in Dublin. The Ministry's view was that the Italian authorities had always been very collaborative with the Irish authorities. The Ministry said that is must be pointed out, contrary to what was stated in the judgment of the Irish court, that when the Ministry sent the EAWs on 19th January, 2009 after the respondent and his sister as wanted persons had been located in Dublin, that neither this respondent nor his sister had been convicted yet by a final judgment. That judgment only became final in the weeks prior to the issue of this first EAW.
The Ministry stated that the fact that the respondent and his sister had been acquitted of the offence contained in the EAW did not invalidate the arrest warrant issued by the Italian judicial authority. It was stated that the judgment was only final on 20th March, 2013 and that was why, at the time the Irish High Court rendered its judgment, the order for preliminary custody issued against the respondent was still effective, although the said order was restricted to the only count for which he and his sister had been convicted. The...
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