Minister for Justice and Equality v Dunauskis

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 20 March 2017
• Neutral Citation: [2017] IEHC 231
• Court: High Court
• Docket Number: Record No. 2016/75 EXT
• Date: 20 March 2017

[2017] IEHC 231

THE HIGH COURT

Donnelly J.

Record No. 2016/75 EXT

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

VYTAUTAS DUNAUSKIS

RESPONDENT

Extradition – The European Arrest Warrant ("EAW") Act 2003 – Execution of EAW – Breach of fair procedures – 2002 Framework Decision – Whether public prosecutor had authority to issue EAW

Facts: The surrender of the respondent was sought by the requesting state for the trial of the respondent on charges of murder. The key issue was whether the public prosecutor, who issued the arrest warrant, could be considered the judicial authority within the meaning of the EAW Act 2003. The respondent claimed that his surrender was prohibited under s. 21A of the 2003 Act as there was no decision to place him on trial. The respondent argued that the investigation pertaining to the alleged incident was still ongoing and no formal decision was made to charge him of the alleged offences. The respondent also objected to his surrender under s. 37 of the 2003 Act on account of inordinate delay.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that the respondent had failed to prove that there was no decision to place him on trial. The Court held that the surrender of the respondent was not prohibited under s. 21 and s. 37 of the 2003 Act. The Court held that it was bound to apply the principles of mutual trust and confidence in the judicial system of the issuing judicial authority. The Court found that the information received from the issuing state had made it clear that public prosecutors were an organ of the criminal justice system at the same level as the Court. The Court held that the issuance of the EAW by the public prosecutor against the respondent was a judicial decision and the office of public prosecutor was governed by the Constitution Act of the requesting state. The Court held that public interest in prosecution of those accused of serious crimes would outweigh the respondent's claim for breach of fair procedures under s. 37 of the 2003 Act.

JUDGMENT of Ms. Justice Donnelly delivered this 20th day of March, 2017.

1 The surrender of the respondent is sought by the Federal Republic of Germany to face trial for murder pursuant to a European Arrest Warrant ('EAW') dated 13th May 2016. A central issue in these proceedings is whether the Public Prosecutor, who issued this warrant, can be considered a judicial authority within the meaning of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003'). The respondent also objected to his surrender on the basis that it is prohibited by s.21A of the Act of 2003 as no decision had been made to charge and try him with the offence. Other points of objection were also raised by the respondent to his surrender.

Uncontroversial Issues

A Member State that has given effect to the Framework Decision

2 The surrender provisions of the Act of 2003 apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States ('the 2002 Framework Decision'). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) (No. 6) Order 2004 ( S.I. No. 532 of 2004), the Minister for Foreign Affairs has designated Germany as a Member State for the purposes of the Act of 2003.

Identity

3 I am satisfied on the basis of the affidavit Seán Fallon, a member of An Garda Síochána, the affidavit of the respondent, and the details set out in the EAW, that the respondent, Vytautas Dunauskis, who appears before me, is the person in respect of whom the EAW has issued.

Endorsement

4 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Sections 22, 23 and 24 of the Act of 2003

5 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the respondent's surrender under the above provisions of the Act of 2003, as amended.

Part 3 of the Act of 2003

6 Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003, as amended, and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

The provisions of s. 38 of the Act of 2003

7 The issuing judicial authority has indicated that this is an offence to which Article 2 para. 2 of the 2002 Framework Decision applies. This is an offence which has been indicated as murder in the ticked box in point E.I of the European arrest warrant. He is liable to a sentence of life imprisonment. This exceeds the minimum gravity requirement in respect of length of sentence. From the details provided in point (e) of the EAW, I am satisfied there is no manifest irregularity with the designation of this offence as a list offence. Therefore, the terms of s. 38 of the Act of 2003 have been satisfied and the respondent's surrender is not prohibited thereunder.

Section 45 of the Act of 2003

8 This respondent has been sought for the purpose of prosecution. The EAW is not required to state the matters required by s. 45 of the Act of 2003 as the respondent is not sought for the purpose of executing a custodial sentence or order of detention.

Points of Objection

Section 21A of the Act of 2003

9 The respondent claimed that his surrender was prohibited by s. 21A of the Act of 2003 in that there was no decision to place him on trial. Section 21A of the Act requires the High Court to refuse to surrender a person, if the High Court is satisfied that a decision has not been made to charge the person with, and try him or her for, the offence for which he or she is sought in the issuing state. Section 21A (2) of the Act of 2003 states that:-

'[...] it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.'

10 Unusually, the issuing judicial authority sent with the EAW, a document headed 'confirmation undertaking'. This document was dated the same day as the EAW had issued, namely 13th May, 2016. The document stated as follows:-

'The responsible representative of the Public Prosecutor's Office, Public Prosecutor Ms. Sondag, who also issued the enclosed European Arrest Warrant dated 13th May, 2016 – file number: 703 AR 610/16 RH – concerning the [respondent] [...] hereby confirms that the [respondent] is to be charged for the crime specified in the European Arrest Warrant and that the decision has been made to try the [respondent].'

The undertaking is signed and sealed by the Public Prosecutor, i.e. by the issuing judicial authority.

11 The respondent relied on the affidavit evidence of Prof. Dr. Hans-Walter Forkel who stated his belief that 'a formal decision has not been made by the public prosecutor to charge the Respondent with murder, and to try him for that offence.' Prof. Dr. Forkel said that according to the documents he had seen, in particular the Public Prosecutor's letter dated 29th August, 2016, it was not settled 'that the above person is to be charged for the crime specified in the EAW, here murder, and that the decision has been made to try the above person'. The Prosecutor's letter stated that:-

'According to your requested inspection of records I would like to inform you that the records are still at the State Office of Criminal Investigations where the Memorandum which concludes the police investigation is made. A contemporary return of the files is expected. Copies will be prompted thereupon and you will be allowed to examine the files.'

12 Prof. Dr. Forkel went on to state that at the present time, there was a preliminary investigation by the Public Prosecution authorities. He said that the Public Prosecution Office must formally end this preliminary investigation with the final report, part of which is a recommendation whether to formally charge the suspect with the supposed crime. He said that 'then a decision is taken within the public prosecution office whether or not to indict the suspect, then a formal indictment must be worked out and presented to the respective court of law which has to decide whether to accept the indictment for public trial'. He went on to say that none of those steps with the respective documents has yet been shown by the Lubeck Prosecution Office. He referred to a telephone confirmation of 12th September, 2016 (the same date as his expert report) by the prosecutor in charge that these documents have not yet been produced. He concluded that the proceedings were still in the investigative phase and the formal and formally required determination whether to charge a client with murder would be made at a later stage.

13 The central authority sent a request seeking the approximate date on which the respondent became a suspect in relation to the murder referred to in the European arrest warrant. The issuing judicial authority replied saying that he was identified as a suspect on 22nd January, 2016 on the basis of the comprehensive investigations of the Lithuanian authorities in the framework of legal assistance and was moved to the status of an accused person on 25th January, 2016.

Submissions

14 Counsel for the respondent recognised that in light of the presumption under s. 21A(2) of the Act of 2003 and by virtue of the information provided by the issuing judicial authority, he had a 'steep hill to climb'. He referred the Court to the documentation which had accompanied the EAW, namely the letter of request. He said that that letter referred to the Public Prosecutor's Office of Lubeck 'conducting preliminary investigation...