Minister for Justice and Equality v Lisauskas

• Jurisdiction: Ireland
• Judge: Mr. Justice George Birmingham
• Judgment Date: 20 October 2017
• Neutral Citation: [2017] IECA 267
• Date: 20 October 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 267

MINISTER FOR JUSTICE AND EQUALITY

PLAINTIFF/RESPONDENT

AND

TOMAS LISAUSKAS

DEFENDANT/APPELLANT

[2017] IECA 267

Birmingham J.

Birmingham J.

Mahon J.

Hedigan J.

Neutral Citation Number: [2017] IECA 267

No. 2017/106

THE COURT OF APPEAL

European arrest warrant – Judicial authority – Point of law – Appellant seeking to challenge his surrender on foot of a European arrest warrant – Whether the issuing judicial authority was a valid issuing judicial authority within the meaning of the European Arrest Warrant Act 2003

Facts: Lithuania sought the surrender of the appellant, Mr Lisauskas, a Lithuanian citizen, so that he could stand trial for armed robbery. In a judgment dated 27th February, 2017, the High Court (Donnelly J) rejected various grounds of challenge to his surrender by Mr Lisauskas. A central issue in the proceedings before the High Court was whether the Office of the Prosecutor General of the Republic of Lithuania, who issued the European Arrest Warrant (EAW) could be considered a "judicial authority" within the meaning of the European Arrest Warrant Act 2003. On 9th March, 2017, Donnelly J, pursuant to s. 16(11) of the 2003 Act, certified that her decision of 27th February, 2017, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal, the point of law being the following: (i) In determining whether a prosecuting authoring is a valid issuing judicial authority for the purposes of the 2003 Act: (a) is the High Court entitled to rely on a presumption that the issuing judicial authority is a valid issuing judicial authority within the meaning of the 2003 Act?; (b) is the correct test that the prosecuting authority be independent from the executive and participate in the administration of justice?

Held by Birmingham J that the High Court was entitled to rely on a presumption that the issuing judicial authority is a valid issuing judicial authority within the meaning of the 2003 Act. In Birmingham J's view, the test applied by Donnelly J was the correct one, namely, whether the prosecuting authority was independent from the Executive and participated in the administration of justice.

Birmingham J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice George Birmingham delivered on the 20th day of October, 2017

1 Lithuania has sought the surrender of Mr. Tomas Lisauskas, a Lithuanian citizen so that he can stand trial for armed robbery. In a judgment dated 27th February, 2017, the High Court (Donnelly J.) rejected various grounds of challenge to his surrender by Mr. Lisauskas. A central issue in the proceedings before the High Court was whether the Office of the Prosecutor General of the Republic of Lithuania, who issued the European Arrest Warrant (EAW) can be considered a 'judicial authority' within the meaning of the European Arrest Warrant Act 2003, as amended (The 2003 Act).

2 On 9th March, 2017, Donnelly J., pursuant to s. 16(11) of the 2003 Act, certified that her decision of 27th February, 2017, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal, the point of law being the following:

(i) In determining whether a prosecuting authoring is a valid issuing judicial authority for the purposes of the European Arrest Warrant Act 2003 (as amended):

(a) Is the High Court entitled to rely on a presumption that the issuing judicial authority is a valid issuing judicial authority within the meaning of the European Arrest Warrant Act 2003 (as amended)?

(b) Is the correct test that the prosecuting authority be independent from the executive and participate in the administration of justice?

3 As we will shortly see, the issue of what bodies can be considered as a judicial authority is one that has been considered on a number of occasions in our courts, in the courts of the neighbouring jurisdiction and in the Court of Justice of the European Union (CJEU). In this case, it was not in dispute that Lithuanian law granted the Prosecutor General the right to issue a European Arrest Warrant but what was in contention was whether that was a valid designation having regard to the terms of the 2002 Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States and the 2003 Act. It is to be noted that the respondent, Mr. Lisauskas, put before the Court evidence by way of affidavits of Simas Tokarcakas, a Lithuanian lawyer. Before going on to discuss the legal issues to arise, it is convenient to set out his evidence at this stage. The summary that follows is taken from the judgment of Donnelly J. at para. 23 onwards. The High Court accepted that he was an expert on Lithuanian law. In an affidavit of 9th June, 2016, Mr. Tokarcakas stated that the Prosecutor General, according to the laws of Lithuania, did not constitute a part of the judiciary. Mr. Tokarcakas said that the EAW was issued exclusively by the prosecutor and none of the judiciary either approved or carried out any control or review of the issue of the European Arrest Warrant. He said that when a court makes an order for the arrest of a person suspected of having committed a criminal offence and the person is hiding or cannot be found, the Prosecutor General's Office, upon the receipt of the court order to arrest the person, issues a European Arrest Warrant. He said that there was no court judgment in respect of the respondent's 'fault' as he is only charged with a criminal offence.

4 A second affidavit was sworn by Mr. Tokarcakas some days later, verifying information contained in a supplemental report. On this occasion, Mr. Tokarcakas explained that the Constitution of the Republic of Lithuania was an integral and directly applicable piece of legislation – a supreme law providing the essential mechanism of the state organisation and legislation enforcement guidelines. The Constitution regulates the three branches of government: legislative, executive and judicial. The Constitutional Court of Lithuania interprets the norms of the Constitution and thereby creates a 'living constitution' which is considered to be an integral part of the Constitution. Section IX of the Constitution is called 'The Court' and this article regulates the exclusive constitutional competence of the Prosecutor. Mr. Tokarcakas stated that at first glance it might seem that the Prosecutor was part of the judiciary. However, an in-depth analysis of the legislation and the doctrine that emerged from the rulings of the Constitutional Court rejected such an erroneous conclusion. The 'Law on the Prosecutor's Office' sets out that a Prosecutor is appointed to his or her post in accordance with the Law on the Prosecutor's Office. Mr. Tokarcakas concluded, upon systematic analysis of the Lithuanian regulatory legislation, that in the constitutional sense, the Prosecutor is any state official of the Republic of Lithuania appointed to the Prosecutor's Office and assigned the special powers of the Prosecutor. Mr. Tokarcakas stated that all Prosecutors have to be classified:

'as part of the same system of the Prosecutor's Office which, as it has been discussed above, is independent and cannot be equated to the judicial or let alone be considered as part of the judicial.'

5 The Constitutional Court has repeatedly held that the constitutional principle of the separation of powers means that the legislative, executive and judicial powers are to be separated and to be sufficiently independent from one another. There has to be a balance between the three branches of government. The judiciary (or 'the courts' as it is referred to in the Lithuanian Constitution) is one of the branches of the government provided for in the constitution. The constitutional purpose and competence of the judiciary is to administer justice. In accordance with Article 109, para. 1 of the Lithuanian Constitution, justice in Lithuania shall only be administered by the courts.

6 The Constitutional Court, in rulings of 13th May, 2004, 16th January, 2006, 28th May, 2008 and 7th April, 2011, has stated that according to the Constitution, a prosecutor does not administer justice. Justice is also not being administered during the pre-trail investigation which is organised by a prosecutor. According to the Constitution, the administration of justice is solely the function of the courts (i.e. the judiciary) and this function determines the special place of the judiciary in the government system. The Constitutional Court in its rulings has repeatedly stated that no other institution or public authority other than the courts may perform this function, i.e. administer justice. Mr. Tokarcakas then goes on to deal with the Constitutional Court's case law referring to a court's duty in criminal proceedings to be an impartial arbiter objectively evaluating data. Under Art. 118, para. 1 of the Lithuanian Constitution, the pre-trial investigation is organised and directed by a Prosecutor. The fundamental constitutional function of the Prosecutor is to accuse. Mr. Tokarcakas expresses the view:

'This subject of the criminal proceedings is per se biased because its main task and purpose is to prove the guilt of the suspected/accused person(s).'

He says that the courts' constitutional function of administering justice is fundamentally different from that of leading and controlling a pre-trial investigation, pressing charges etc. In administering justice, courts examine an already prepared criminal case and decide on the question of culpability of the accused and then sentence or acquit the accused. Mr. Tokarcakas stated that the Office of the Prosecutor of the Republic of Lithuania is a centralised public authority with specific authoritative powers but it does...