Minister for Justice and Equality v M.v
|Ms. Justice Donnelly
|28 July 2015
| IEHC 524
|28 July 2015
|[2011 No. 197 EXT]
 IEHC 524
[2011 No. 197 EXT]
THE HIGH COURT
International law – Surrender – Crime & Sentencing – Art. 1 (a) and art. 6 of the Council Framework Decision 2002/584/JHA – European Arrest Warrant Act 2003 – Validity of European Arrest Warrant – Execution of European Arrest Warrant – Art. 69 of the Criminal Procedure Code of Lithuania
Facts: In the proceedings, the Republic of Lithuania sought the surrender of the respondent for serving a custodial sentence imposed upon him. The respondent contended various grounds of his surrender, the prominent being that the European Arrest Warrant (EAW) was issued by the Ministry of Justice of Lithuania which was not a competent judicial authority under art. 6 of the Council Framework Decision 2002/584/JHA.
Ms. Justice Donnelly refused to grant an order for the surrender of the respondent on the sole ground that the Ministry of Justice of Lithuania was not a judicial authority under European Arrest Warrant Act 2003 r/w the Council Framework Decision. The Court however, observed that the surrender of the respondent was not prohibited on any other grounds as alleged by the respondent. The Court after discussing the dicta of the Supreme Court in that the provisions of the Act of 2003 should be construed positively with the Council Framework Decision and that public prosecutors could be the issuing authority if permitted under the legislative framework of a member state, observed that it was implicit that the judicial authority should be autonomous as mandated by the Framework Decision. The Court after citing that the independence of judiciary was a part of rule of law, the objectives of the Framework Decisions calling for free movement of judicial decisions, and art. 267 of the Treaty on the Functioning of the European Union (TFEU), concluded that a Minister for Justice could not be said to have sufficient independence to be considered a part of the judiciary and it would not be a court or tribunal for the purposes of art. 267 of TFEU. The Court found that there had been no judicial involvement in the issuance of subject EAW, which was a prerequisite if a person was to be considered an 'issuing judicial authority' within European Arrest Warrant Act 2003 when interpreted in the light of the Framework Decision. The Court held that in the subject case, the Minister was discharging executive functions of the government and the impugned warrant had been issued at the request of the Prison Department of the issuing state.
The Republic of Lithuania seeks the surrender of the respondent to serve a custodial sentence of five years and six months imprisonment imposed upon him. The warrant is dated 17th September, 2007, and is signed by Petras Baguska who, at that time, was the Minister for Justice in Lithuania. The main point of objection in this case is that the European arrest warrant ('EAW') was not issued by a competent judicial authority as required by Article 1 and Article 6 of the Council Framework Decision 2002/584/JHA of 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States ('the Framework Decision'). The points of objection go on to say that as the warrant was issued by the Minister of Justice, it is not therefore a judicial decision issued by a Member State as required by Article 1 of the Framework Decision.
This main point of objection was contained in an amended point of objection which the Court permitted to be filed in this case on hearing that the respondent now wished to rely upon a decision from the United Kingdom ('U.K.') Supreme Court given on 20th November, 2013, in three separate cases. The judgment, referable to all three cases, is cited as . In the intervening time between the amendment of the points of objection and the s. 16 hearing, the Supreme Court in this jurisdiction gave its decision in . Both of these judgments will be discussed below.
The respondent sought and received a legal opinion from an attorney-at-law in Lithuania. This legal opinion was proffered to the Court in the form of a letter to the respondent's solicitors, headed 'Legal Opinion' and signed by the attorney-at-law. There is no affidavit verifying the document. Edwards J. in has stated that verification of the contents of a document is necessary where the contents are being relied upon as constituting testimonial evidence. Murray C.J. stated in that counsel for the appellant properly acknowledged that extradition proceedings are neither strictly criminal nor civil in nature but the ordinary rules of evidence apply. In this case, it is quite unsatisfactory that a document was simply placed before the Court and the Court was being asked to treat this as admissible evidence. Indeed, when the matter was raised by the Court, there was no explanation for the absence of the affidavit and no attempt to seek time to put one before the Court.
The Minister sought further information from the Lithuanian authorities having received the legal opinion mentioned above. The Lithuanian authorities stated that the EAW had 'been issued on the basis of the application of Prison Department under the Ministry of Justice of the Republic of Lithuania.' In light of the fact that the Minister did not seek to object to the proffering of the document in evidence but more particularly on the basis of the additional information received from the issuing state which forms part of the information that the Court must consider, it is necessary and appropriate to address the issue raised in the amended points of objection.
The legal opinion confirms that in accordance with:-
'Article 69 of the Criminal Procedure Code of Lithuania, which was in force in September 2007, European arrest warrants regarding ... persons who have been sentenced to imprisonment by enforceable judgments in the Republic of Lithuania and who have absconded from serving the sentence in another Member State of the European Union shall be issued and competent authorities of that state shall be contacted by the Ministry of Justice of the Republic of Lithuania. In these cases EAW has to be signed by the representative of the Ministry of Justice. Back then Mr. Petras Ragauskas was the head (the minister) of the Ministry of Justice of Lithuania, so the procedure of issuing EAW was carried out correctly.'
This is clear confirmation that the Ministry of Lithuania was the designated issuing judicial authority under Lithuanian law for the purpose of issuing EAWs.
The legal opinion then states that having sent an official request to the Ministry of Justice of the Republic of Lithuania, the law firm was informed that the warrant was issued by the Ministry of Justice at the request of the Prison Department. The lawyer confirms that the applicable rules in the Republic of Lithuania are that if a convicted person, who has not been arrested until the court judgment becomes enforceable, absconds from the execution of the custodial sentence imposed upon him by the court's judgment, or if the convicted person while serving his custodial sentence runs away from the correctional institution or fails to return there, the request to issue the EAW shall be submitted to the Ministry of Justice by the institution executing the sentence after taking into consideration the criteria for issuing an EAW laid down in the rules.
The legal opinion further states that the Prison Department is an executive agency charged with the execution of the sentence. It is not a judicial body considering and ruling upon the question of whether the person wanted has absconded. It is stated that the Prison Department has discretion as to whether to apply to the Minister to issue the warrant. The attorney then says '...the evident oddity in the context of a European arrest warrant of such a discretion being entrusted to a Prison Department merely underlines the fact that it cannot be regarded as a judicial authority.' The Ministry of Justice having received the request also has to consider for itself whether formal preconditions have been met but also has to take into consideration the severity and type of the offence and the convicted person's personality. The legal opinion continues:-
'assuming again that this connotes an element of discretion, even in the case of a conviction, as to whether it issues a warrant, the mere fact that the Ministry of Justice is given a discretion does not make it a judicial body.'
Those parts of the legal opinion referring to the evident oddity of the discretion being entrusted to a prison department underlying the fact that it cannot be regarded as a judicial authority and to the 'mere fact that the Ministry of Justice is given a discretion does not make it a judicial body' are taken word for word from the judgment of Lord Mance in . The legal opinion establishes that the Prison Department is an executive agency, the Prison Department makes the request to the Minister for the issue of an EAW, the Minister has a discretion but he cannot be regarded as a judicial body by that fact. On the other hand, the Lithuanian authorities accept the request came from the Prison authorities. The Minister for Justice in Lithuania is, self-evidently, a member of the executive branch of government.
The legal opinion then goes on to refer to the courts of the U.K. having made certain determinations. The...
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