Minister for Justice and Another v Gherine

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 30 November 2012
• Neutral Citation: [2012] IEHC 535
• Court: High Court
• Date: 30 November 2012

[2012] IEHC 535

THE HIGH COURT

Record No 25 EXT/2009

Record No 26 EXT/2009

Min for Justice v Gherine

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEW/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

GILIOLA GHERINE

Respondent

ALSO/

THE MINISTER FOR JUSTICE AND EQUALITY

GIULIANO GHERINE

EUROPEAN ARREST WARRANT ACT 2003 S16(7)

EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 6

EUROPEAN ARREST WARRANT ACT 2003 S16(10)

Extradition - European arrest warrant - Warrant to face prosecution - Conviction and acquittal - In absentia - European Arrest Warrant Act 2003 - Abuse of process

Facts: The respondents were siblings who were the subject of European arrest warrants that were issued by Italy on the 3rd March 2008 due to alleged drugs offences they had been committed with each charge carrying a maximum sentence of 30 years imprisonment. They refused to surrender to Italian authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003.

It was the respondents' contention that they should not be surrendered to Italy because they had already been tried in absentia and been acquitted of most of the offences alleged on the European arrest warrant, leaving one conviction each. For the remaining convictions, they had been sentenced to 10 years and 6 months imprisonment and 13 years imprisonment respectively. They contended that the purpose of the European arrest warrant was to render them before the court to face prosecution, something that was now unavailable to them. The Irish Central Authority made attempts to confirm these claims and were informed that the respondents had indeed been convicted.

Held by Edwards J that the jurisdiction of the court had been undermined as it was not open to the court to surrender a person in order for them to serve a sentence on foot of a European arrest warrant that originally sought their rendition so they could be prosecuted.

The respondents had been tried in absentia in Italy almost 2 years previously and it was the Italian authorities' responsibility to withdraw the European arrest warrant and issue a new warrant taking into account the developments before the Italian courts. In the circumstances, to grant the orders sought could potentially amount to an abuse of process.

It was further directed that the Irish Central Authority communicate the decision and provide a copy of the judgement to the issuing judicial authority and Eurojust pursuant to s. 16(10) of the European Arrest Warrant Act 2003.

Order of surrender pursuant to s. 16 of the European Arrest Warrant Act 2003 to the issuing state refused for each respondent.

1 JUDGMENT of Mr Justice Edwards delivered on the 30th day of November, 2012

Introduction:

2 This judgment is issued pursuant to s. 16(7) of the European Arrest Warrant Act, 2003 as amended by the European Arrest Warrant (Application to ThirdCountries and Amendment) and Extradition (Amendment) Act 2012 (hereinafter "the Act of 2003 as amended") giving the Court's reasons for refusing to make Orders in each of the above entitled proceedings under s. 16(1) of the Act of 2003 as amended.

The circumstances of these cases

3 The respondents in these proceedings are each the subject of separate European Arrest Warrants issued by the Italian Republic on the 3 ^rd of October 2008 and transmitted to this State under the name, signature and seal of an issuing judicial authority for the purposes of the European Arrest Warrant, namely., "Giudice Per Le Indagini Preliminari Presso II Tribunale Di Catanzaro", [Judge for preliminary investigations at the court of Catanzaro], whose representative was identified in Part (I) of the warrant in each case as Antonio Battaglia, Judge for Preliminary Investigations.

4 These warrants were transmitted to the Irish Central Authority by the Italian Central Authority, namely "Ministero della Giustizi - Direzione Generale delle Giustizia Penale - Ufficio II" [ Ministry of Justice - General Directorate for Criminal Justice - Office 2], whose representative was also identified in Part (I) of the warrant in each case as Ms Anna Gravina, Office Director. They were transmitted under cover of a letter dated the 19 ^th of January 2009 from the Italian Central Authority addressed both to the Irish Central Authority and to SIRENE, and the letters were signed by one Antonio Laudati who is described as "General Director" and also as "Delegated by the Minister of Justice".

5 The warrant relating to each respondent, respectively, seeks the rendition of that respondent for the purpose of prosecuting him or her for the offences particularised in Part (E) of the warrant. The respondents are understood to be siblings. Although their warrants are not identical in all respects the offences to which their individual warrants relate are underpinned by a common factual matrix i.e., the respondents are each alleged to have participated in various ways in the activities of a illicit drug trafficking organisation/enterprise. In the case of the respondent Giliola Gherine, the warrant seeking her rendition relates to two drugs offences, each carrying a potential sentence of up to 30 years imprisonment under the law of the issuing State, and in respect of...