Minister for Justice and Equality v Lisauskas

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 27 February 2017
• Neutral Citation: [2017] IEHC 232
• Court: High Court
• Docket Number: Record No. 2015/266 EXT
• Date: 27 February 2017

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

TOMAS LISAUSKAS

RESPONDENT

[2017] IEHC 232

Donnelly J.

Record No. 2015/266 EXT

THE HIGH COURT

Extradition – The European Arrest Warrant ("EAW") Act 2003 – Execution of EAW – Meaning of issuing judicial authority – Council Framework Decision (2002/584/JHA)

Facts: The surrender of the respondent was sought by the requesting state on foot of the execution of the EAW for the trial of the respondent for armed robbery. The key issue was whether the Prosecutor General's office of the requesting state that issued the EAW could be considered a judicial authority within the meaning of the European Arrest Warrant Act, 2003. The respondent argued that the Prosecutor General did not constitute a part of the judiciary and that the EAW was exclusively issued by the prosecutor without the approval or any review from the Court. The applicant submitted that it was a settled law that a judicial authority need not have to be a Court or tribunal; however, it had to be an independent body entrusted with the administration of justice.

Ms. Justice Donnelly granted an order for the surrender of the respondent to the requesting state. The Court, in conformity with the decision of the Court of Justice of European Union (CJEU) in Ozcelik (CaseC-453/16PPU, Fourth Chamber, November 10, 2016, stated that the issuance of a national arrest warrant by a public prosecutor was a judicial decision under art. 8(1) (c) of the Council Framework Decision (2002/584/JHA) and thus, such a prosecutor was capable of issuing an EAW under art. 6(1) of the 2002 Framework Decision. The Court held that the independence of the prosecutor's office from the executive and not from the prosecutorial process must be considered under art. 6 and art. 8 of the 2002 Framework Decision.

JUDGMENT of Ms. Justice Donnelly delivered this 27th day of February, 2017.

1 The surrender of the respondent is sought by the Republic of Lithuania to face trial for armed robbery pursuant to a European arrest warrant ('EAW') dated 18th April 2014. A central issue in these proceedings is whether the Prosecutor General's Office of the Republic of Lithuania, who issued the EAW, can be considered a judicial authority within the meaning of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003').

The background to the EAW

A Member State that has given effect to the Framework Decision

2 The surrender provisions of the Act of 2003 apply to those member states of the European Union ('E.U.') that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States ('the 2002 Framework Decision'). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) (No. 3) Order 2004 ( S.I. 206 of 2004), the Minister for Foreign Affairs has designated Lithuania as a Member State for the purposes of the Act of 2003.

Identity

3 I am satisfied on the basis of the affidavit of James Kirwan, member of An Garda Síochána, and the details set out in the EAW, that the respondent, Tomas Lisauskas, who appears before me is the person in respect of whom the EAW has issued.

Endorsement

4 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Sections 22, 23 and 24 of the Act of 2003

5 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse his surrender under the above provisions of the Act of 2003, as amended.

Part 3 of the Act of 2003

6 Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003, as amended, and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

The provisions of s. 38 of the Act of 2003

7 The issuing judicial authority has indicated that this is an offence to which Article 2 para. 2 of the 2002 Framework Decision applies. This is an offence which has been indicated as 'armed robbery' in the ticked box in point E.I of the European arrest warrant. He is liable to imprisonment 'for a term of two up to seven years.' This complies with the requirement of minimum gravity in respect of sentencing provisions. From the details provided in point (e) of the EAW, I am satisfied there is no manifest irregularity with the designation of this offence as a list offence. Therefore, the terms of s. 38 of the Act of 2003 have been satisfied.

Section 45 of the Act of 2003

8 This respondent has been sought for the purpose of prosecution. The EAW is therefore not required to state the matters required by s. 45 of the Act of 2003.

Points of Objection

9 This respondent objected to his surrender on a number of grounds. The main objection was the alleged invalidity of the EAW as it had not been issued by a judicial authority. It was also claimed that there had been no decision to charge and try the respondent in respect of the offence and that his surrender was prohibited under the terms of s. 21A of the Act of 2003. He also submitted that the prison conditions in Lithuania were such that to surrender him would amount to a violation of his right not to be subjected to inhuman and degrading conditions.

Section 21A of the Act of 2003

10 The respondent claimed that his proposed surrender would constitute a breach of s. 21A of the Act of 2003, as there had been no decision to charge and try him in respect of the offence for which his surrender is sought. The respondent did not present any evidence in relation to this matter nor did he make submissions at the hearing.

11 Section 21A(1) of the Act of 2003 prohibits surrender of a person in respect of an offence for which they have not been convicted, if the High Court is satisfied that a decision has not been made to charge the persons with, and try him or her for, that offence in the issuing state. The Supreme Court (O'Donnell J.) in Minister for Justice, Equality and Law Reform v. Olsson[2011] 1 I.R. 384 (and approved in Minister for Justice, Equality and Law Reform v. Bailey[2012] 4 I.R. 1) stated at pp. 399-400 that '[...] the concept of the "decision" in s. 21A should be understood in the light of the "intention" referred to in s. 10 of the Act of 2003 and the "purpose" referred to in art. 1 of the Framework Decision. [...] Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s. 10 of the Act of 2003). Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of s. 21A'.

12 In the present case, the EAW states that the respondent's arrest and surrender is for the 'purposes of conducting a criminal prosecution.' The EAW refers to him being charged with a criminal offence. In those circumstances, and relying on Bailey, the Court can be satisfied that a decision has been made to charge and try him with this offence.

13 Furthermore, there is a presumption in s. 21A(2) of the Act of 2003 that such a decision has been made, unless the contrary is proven. The respondent has not proved that no decision has been made to charge him with and try him for the offence set out in the European arrest warrant.

14 For the above reasons, I am satisfied that his surrender is not prohibited under the provisions of s. 21A of the Act of 2003.

Section 37 of the Act of 2003

15 The respondent claimed that his surrender was prohibited as surrender would violate his right to bodily integrity and freedom from inhuman and degrading treatment as guaranteed by Article 40.3.1 of the Constitution and Article 3 of the European Convention on Human Rights ('ECHR') owing to the current prison conditions in Lithuania for both remand and convicted prisoners (which inter alia create a substantial risk of inter-prisoner violence) and the conditions of police detention in Lithuania.

16 Although the respondent did not place any evidence before the Court or make submissions on this aspect of the case, he nonetheless requested that the Court rule upon this matter. The approach the Court must adopt to a claim such as this is set out by the Supreme Court in Minister for Justice, Equality and Law Reform v. Rettinger[2010] 3 I.R. 783. The respondent bears an evidential burden of adducing cogent evidence capable of proving that there are substantial grounds for believing that if he were returned to the issuing state, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the European Convention on Human Rights. That evidence can be supplied in a number of ways, including relevant material from international treaty bodies, courts and non-governmental organisations. The Court of Justice of the European Union ('CJEU') in Aranyosi and Caldararu v. Generalstaatsanwaltschaft Bremen ( C-404/15 and C-659/15 PPU, Grand Chamber, 5th April 2016) has recently adopted an approach which is broadly similar.

17 This Court has already ruled on a fully argued case in respect of prison conditions in Lithuania (See Minister for Justice and Equality v. Tagijevas[2015] IEHC 455). The Court rejected the point of objection in that case. Nothing has been placed before the Court that requires this Court to reconsider its findings in that case.

18 In light of the foregoing, the Court rejects this point of objection of the respondent.

19 The respondent also objected to his surrender on the basis that his right to respect for his personal and family rights would be...