Minister for Justice and Equality v Dunauskis

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 28 July 2016
• Neutral Citation: [2016] IECA 245
• Docket Number: Record No: CA 2016/318
• Court: Court of Appeal (Ireland)
• Date: 28 July 2016

[2016] IECA 245

THE COURT OF APPEAL

Edwards J.

Record No: CA 2016/318

Sheehan J J.

Mahon J.

Edwards J.

THE MINISTER FOR JUSTICE & EQUALITY

Respondent

V

VYTAUTAS DUNAUSKIS

Respondent

Bail – Murder – Surrender – Appellant seeking bail – Whether the possibility of flight was enough to justify denial of bail

Facts: The appellant, Mr Dunauskis, was arrested on foot of a European Arrest Warrant issued by a judicial authority in Würzburg in the Federal Republic of Germany for the purpose of securing his rendition to Germany so that he might be prosecuted for the crime of murder. On the 24th of June 2016, the High Court (Donnelly J) refused to admit the appellant to bail, and remanded him in custody pending his surrender hearing. The appellant appealed to the Court of Appeal against that judgment and order of the High Court. Bail had been objected to on The People (Attorney General) v O’Callaghan [1966] IR 501 grounds and specifically on the basis of a concern that the appellant would fail to turn up for his surrender hearing, which was expressed by a witness from the extradition unit of An Garda Siochána (Detective Sergeant Kirwan), who gave evidence on behalf of the respondent, the Minister for Justice and Equality. Following an appeal hearing before the Court of Appeal on the 19th of July 2016 the Court decided that the appellant could be admitted to bail in principle, subject to conditions. The Court stated that they would give their reasons later in a written judgment.

Held by Edwards J that mere possibility of flight was not enough to justify denial of bail, though it may require that any bail allowed should be subject to stringent conditions. In the Court’s view, the evidence offered by the respondent in support of the objection to bail, while establishing a reasonably significant risk of flight at the level of possibility, did not go so far as to establish that that risk existed at the level of probability; bail should not therefore have been denied absolutely, and in doing so the judge in the court below was in error. Edwards J held that it would have been appropriate on the evidence to grant bail in principle subject to stringent conditions designed both to disincentivise and deter flight, and to place obstacles in the way of possible flight.

Edwards J held that he would allow the appeal and approve in principle a regime of bail.

Appeal allowed.

Judgment delivered on the 28th day of July, 2016 by Mr. Justice Edwards

Introduction

1 This appeal is against the judgment and order of the High Court (Donnelly J.) dated the 24th of June 2016 refusing to admit the appellant to bail, and remanding him in custody pending his surrender hearing, following the appellant's arrest on foot of a European Arrest Warrant issued by a judicial authority in Würzburg in the Federal Republic of Germany for the purpose of securing his rendition to Germany so that he might be prosecuted for the crime of murder.

2 Bail had been objected to on O'Callaghan grounds and specifically on the basis of a concern that the appellant would fail to turn up for his surrender hearing, which was expressed by a witness from the extradition unit of An Garda Siochána (Detective Sergeant James Kirwan), who gave evidence on behalf of the respondent.

3 Following an appeal hearing before this Court on the 19th of July 2016 we decided that the applicant could be admitted to bail in principle, subject to conditions, notwithstanding the objection raised by the respondent. We determined that any bail to be afforded to the appellant should be subject to the following conditions:

• The appellant should enter into his own bond in the sum of €10,000 alternatively provide two independent sureties of €5,000 each; and in either case the full sum of €10,000 to be lodged.

• The appellant should reside during the currency of his bail at a nominated address to be approved by An Garda Siochana;

• The appellant should sign on daily at a nominated Garda Station;

• The appellant should surrender his passport and National Identity Card (if any) and undertake not to apply for any new or replacement passport, or for any travel documents (to include tickets and electronic boarding passes), during the currency of his bail;

• The appellant should remain within the jurisdiction during the currency of his bail;

• The appellant should engage with the European arrest warrant proceedings and diligently prosecute with due expedition any defence to his surrender that he intends raising, and further turn up in court on all occasions on which he is required to do so;

• The appellant should equip himself with a mobile phone which he should keep switched on and charged at all times, and provide the phone number to An Garda Siochána so that he can be checked up on as to his whereabouts;

• The appellant should keep the peace and be of good behaviour.

4 Having determined that the appellant might be admitted to bail on those terms, we stated we would give our reasons later in a written judgment. We now give our reasons.

The European Arrest Warrant

5 The Federal Republic of Germany seeks the rendition of the appellant, a Lithuanian citizen, on foot of a European Arrest Warrant dated the 13th of May 2016 in respect of a homicide offence allegedly committed by him on 02/03 July 1995. The issuing state has invoked paragraph 2 of Article 2 of the Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/J.H.A.), O.J. L190/1 of 18.7.2002 (‘the Framework Decision’) and has ticked the box in Part (e). I of the warrant relating to ‘murder, grevious bodily injury’. Accordingly correspondence will not have to be demonstrated in the surrender proceedings.

6 The circumstances of the alleged offence as described in Part (e) of the warrant are that: ‘[A named person] and Vytautas Dunauskis are strongly suspected of having jointly killed another person out of greed. At the time of commission of the crime [the named person] and Vytautas Dunauskis went in the apartment of Hamadi Khalladi in Schützenstraße 61 in Lübeck and consciously and intentionally killed him by means of multiple stabs, with one of the suspects using a knife and the other one a screwdriver, in order to subsequently search the clothes and the apartment of the victim for goods worth stealing.’

7 According to Part (c) of the warrant the offence of murder carries a potential sentence of up to life imprisonment in Germany.

8 The European Arrest Warrant was based on a German domestic arrest warrant ordering his detention pending trial. Part (b) of the European Arrest Warrant states that the grounds for detention were ‘danger of absconding’ and ‘gravity of the crime’.

9 The warrant was accompanied by an undertaking from the issuing authority dated the the 13th of May 2016 that if the appellant was surrendered to Germany he would be placed on trial. It seems reasonable to infer that this undertaking was proffered in anticipation that the appellant might seek to rely on s.21A of the European Arrest Warrant Act 2003 (the Act of 2003) to resist his surrender.

10 It requires to be noted that at the time that the German domestic warrant issued the appellant was already out of that jurisdiction, and in...