Minister for Justice and Equality v Gray
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 07 March 2016 |
| Neutral Citation | [2016] IEHC 128 |
| Docket Number | [Record No. 2013/225 EXT] |
| Court | High Court |
| Date | 07 March 2016 |
[2016] IEHC 128
Donnelly J.
[Record No. 2013/225 EXT]
THE HIGH COURT
International law – Extradition – S. 21A The European Arrest Warrant Act, 2003 – European Convention on Human Rights – Precautionary custody in prison
Facts: The applicant sought an order for the surrender of the respondent to the requesting State pursuant to the execution of the European Arrest Warrant (EAW) in relation to certain offences. The respondent contended that since there had been no decision to charge and try the respondent, his surrender was prohibited under s. 21A of the European Arrest Warrant Act, 2003.
Ms. Justice Donnelly refused to grant an order for the surrender of the respondent on the sole ground that no decision had been made in the requesting state to charge and try the respondent. The Court found that in the present case, the respondent's presence was required for the purpose of facilitating the preliminary investigation led by the public prosecutor under the supervision of the judge and that trial would not commence until the completion of said investigation and specific request made by the public prosecutor for initiating the trial of the respondent in that regard. The Court observed that in cases where there had been change in circumstances surrounding the issuance of an EAW, the issuing judicial authority must issue a new EAW and should not rely on the already issued EAW for a purpose other than it was issued. The Court found that the request to try and charge the respondent in the present case was made after the issuance of the EAW and hence, it was contrary to its original purpose, namely, to carry out criminal investigation as opposed to charging and trying the respondent, and therefore, it was in contravention of art. 21A of the Act of 2003.
On 31st July, 2013, the section of the Judge in charge of Preliminary Investigations in the Court of Genoa, Italy, issued a European Arrest Warrant (‘EAW’) for the above respondent. The EAW seeks the surrender of respondent for the purpose of a criminal prosecution in relation to the alleged offences of:
(a) Aggravated smuggling of foreign finished tobacco; and,
(b) False swearing by a public officer and public documents by mistake determined by someone else's cheating.
The respondent's case was linked to, and heard with, the case of Minister for Justice and Equality v. Patrick Meegan in which I will also deliver judgment today. The respondent in that case and the respondent herein were represented by the same solicitor and junior and senior counsel and identical arguments were made in each case.
A number of points of objection were filed in this case. At the hearing of the applications for surrender, counsel for the respondent indicated that he was confining his opposition to two points. The major point of objection was that no decision had been made to charge and try the respondent in Italy and that surrender is therefore prohibited under s. 21A of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’). A second objection concerned the putative lack of availability of bail in Italy.
I am satisfied that the Minister for Foreign Affairs has by the European Arrest Warrant Act 2003 (Designated Member States) (No. 2) Order 2005 ( SI. No. 240 of 2005), designated Italy as a member state that has, under its national law, given affect to the Framework Decision of 13th June, 2002 on the European Arrest Warrant and surrender procedures between Member States (‘the 2002 Framework Decision’).
I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.
Having scrutinised the EAW and the affidavit of Seán Fallon, member of An Garda Síochána, I am satisfied that Alan Gray is the person in respect of whom the EAW has been issued.
I am satisfied that the provisions of s. 45 of the Act of 2003 are not applicable to this EAW as it has been issued for the purpose of criminal prosecution.
I am satisfied that I am not required to refuse the respondent's surrender under s. 22, s. 23 or s. 24 of the Act of 2003, as amended.
In each case, the Italian judicial authority has ticked the box ‘forgery of administrative documents and trafficking therein’, thereby indicating that the offences are offences to which Article 2 para. 2 of the 2002 Framework Decision on the EAW applies. The EAW sets out the circumstances of the offences as follows:
‘[a, b, c, d, e, f, and g] associated to commit more than one offence involving the smuggling of foreign finished tobacco; the cigarettes were imported from the Arab Emirates in containers, and were concealed by covering hauls. [The respondent] participated also as purchaser in the import of 9.890 kilograms of foreign finished tobacco on 13/12/2011, as a result a false customs statement was issued:
the fact took place on 13/12/2011
the fact was established in Genoa, where the container containing the cigarettes, subjected to the control of the Customs Agency, arrived.’
The offences carry a custodial sentence or detention order of a maximum of at least three years. In all the circumstances, I am satisfied that there has been no manifest error in the ticking of the box. I am therefore satisfied that the provisions of s. 38 of the Act of 2003 do not prohibit the surrender of this respondent.
I am satisfied that the respondent's surrender is not prohibited by any section contained in Part 3 of the Act of 2003, as amended, subject to further consideration of s. 37 below in respect of the right to bail.
In his points of objection, the respondent asserted he would be held in custody for the purpose of facilitating investigation with no right to apply for bail and that this would be in breach of his rights under Article 5 and Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) and that his constitutional rights would also be breached in that respect. He submitted that surrender was therefore prohibited under the provisions of s. 37(1) of the Act of 2003.
This objection was based upon a reply of the Italian issuing judicial authority to a request for information by the central authority as to whether this respondent could apply for bail if surrendered. The reply was as follows:
‘In case of surrender the Italian system does not provide for a bail or the equivalent of a bail while a trial for the offences contained in the Arrest Warrant is ongoing.’
It was a curious feature of this case that the opinion of the Italian lawyer obtained by the respondent, had in fact stated that the respondent might submit an application for release or for the reduction of the precautionary measure and that such a decision would be up to the relevant judge. As this Court has observed in the case of Minister for Justice and Equality v. W.B. [2015] IEHC 805, there can be a difficulty with the use of the word ‘bail’. The word can imply a system of monetary recognisances that must be set before a person may be released pending trial. In the circumstances, where there may have been some confusion over the understanding of the word ‘bail’, I was of the opinion that the documentation was not sufficient to enable me to perform my functions and I exercised my discretion to make a request under s. 20 seeking the following information:
‘Is there a system of pre-trial release in Italy where a person charged with an offence can apply to be released while awaiting trial, subject to travel restrictions or an obligation to report to the police or other such restrictions as are deemed to be necessary, and where a Court will consider whether it is appropriate to release a person charged with an offence with conditions, or to remand that person in custody?’.
On 27th November, 2015, the Italian judicial authority replied as follows:
‘In Italy, the judge can decide during the whole course of the proceedings whether to revoke the precautionary custody in prison or convert it into a less restrictive measure (house arrest - also using the electronic bracelet -; obligation or prohibition to reside at a given address; obligation to report to the Law enforcement authorities; prohibition to leave the country). The suspect/defendant can in any moment ask to revoke or convert the precautionary measure imposed on him/her, but the decision lies with the prosecuting judge (see Articles 272 and following of the code of criminal procedure).’
When the matter came back for further hearing on 14th December, 2015, counsel for the respondent accepted that this indication by the Italian judicial authority was in accord with his own expert's view. In short, he accepted what was being stated therein and this was no longer a point of contention. In the circumstances, I am satisfied that there is a system of pre-trial release in Italy and there are no grounds for believing that this respondent is at real risk of having his right to liberty violated on surrender.
The respondent submitted that no decision has been made to charge him with and try him for the offences set out in the EAW and therefore his surrender is prohibited under s. 21A of the Act of 2003. It is necessary to give context to the submissions of the respondent by detailing the contents of the communications of the issuing judicial authority, together with the opinion of the expert in Italian law relied upon by the respondents. In the first place, the EAW states that the decision on which the EAW is based is an order for precautionary custody in prison...
To continue reading
Request your trial
-
Daniel Harty v Mary Nestor
...Justice & Equality v. WB [2016] IECA 347, a decision of Edwards J. in the Court of Appeal, and Minister for Justice & Equality v. Gray [2016] IEHC 128, a decision of Donnelly J. in this Court, and also Minister for Justice & Equality v. Meegan [2016] IEHC 129, also a decision of Donnelly J.......
-
Minister for Justice and Equality v Tache
...upon the opinion of Dr. Holger Matt and the decision of this Court (Donnelly J.) in Minister for Justice and Equality v. Alan Gray [2016] IEHC 128. In order to succeed with this argument, the respondent must produce cogent evidence that no decision to charge and try the person whose surrend......