Minister for Justice and Equality v Dziugas; Dziugas v The Governor of Cloverhill

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 10 May 2018
• Neutral Citation: [2018] IEHC 271
• Date: 10 May 2018
• Court: High Court
• Docket Number: [RECORD NO. 2017 51 EXT] [RECORD NO. 2018 594 SS]

IN THE MATTER OF AN APPLICATION UNDER ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

MINISTER FOR JUSTICE AND EQUAILTY

APPLICANT

AND

ZANAS DZIUGAS

RESPONDENT

AND

BETWEEN

ZANAS DZUIGAS

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL

RESPONDENT

[2018] IEHC 271

[RECORD NO. 2017 51 EXT]

[RECORD NO. 2018 594 SS]

THE HIGH COURT

Constitution – Art. 40.4.2 of the Constitution – Extradition – Legality of detention in custody – New date for surrender – Expiry of period of stay – S. 16(1) of the European Arrest Warrant Act 2003

Facts: Two sets of proceedings were related to each other. The respondent in the first proceedings had filed an application under art. 40.4.2 of the Constitution for challenging his detention in custody. The High Court had granted a stay on the respondent's surrender pending the determination of his application for leave to appeal to the Supreme Court. The applicant/Minister sought an order for the fixation of a new date for the surrender of the respondent for making arrangements for his transportation by sea.

Ms. Justice Donnelly held that the detention of the respondent was in accordance with law. The Court held that the notice of appeal to the Supreme Court was lodged appropriately on the date on which the receipt had been recorded. The Court fixed a new date for the surrender of the respondent as it was not possible for the requesting state to obtain permission from the territories of different states within a 10-day period in relation to the travel of the respondent by sea.

JUDGMENT of Ms. Justice Donnelly delivered on the 10th day of May, 2018

1 In a judgment delivered on 2nd February 2018, I rejected the respondent's objections to his surrender to Lithuania. I adjourned the case to hear the respondent's application for a certificate for leave to appeal to the Court of Appeal. I also rejected that application. I heard an application for a stay on the Order I had made under s. 16(1) of the European Arrest Warrant Act, 2003 as amended ('the Act of 2003') so as to permit the respondent seek leave to appeal to the Supreme Court. I granted that stay for a period of 15 days pending lodgment of the notice for leave to appeal, and if that notice was lodged within that period, until the application or appeal was finally determined by the Supreme Court. The 15-day period was less than the period of time for appeal to the Supreme Court (28 days) but was deliberately chosen because of the need for expedition in surrender cases. It was considered a just and equitable period for the stay and indeed was suggested to the Court by counsel for the respondent.

2 The precise terms of the perfected Order are as follows:

' AND IT IS ORDERED pursuant to Section 16(1) of the European Arrest Warrant Act 2003 (as amended) that the said Zanas Dzuigas the Respondent be surrendered to such person duly authorised to receive him on behalf of the Republic of Lithuania

And said Counsel on behalf of the Respondent making application before the Court for a stay on the Order made pursuant to Section 16(1) of the European Arrest Warrant Act 2003 (as amended) by the foregoing paragraph pending the lodgment of an application for leave to appeal herein directly with the Supreme Court

AND IT IS ORDERED that the said Order by this Order made pursuant to Section 16(1) of the European Arrest Warrant Act 2003 (as amended) be

(i) stayed for a period of fifteen (15) days from the date hereof pending the lodgment by the Solicitor on behalf of the Respondent of an application for leave to appeal herein with the Supreme Court

and in the event of an application for leave to appeal being so lodged within the time as aforesaid

(ii) further stayed pending the determination by the Supreme Court of the application made by the Respondent for leave to appeal to that Court and in the event that leave to appeal is granted by the Supreme Court until the final determination of such appeal

AND IT IS ORDERED that the said Zanas Dzuigas the Respondent be remanded in custody for a period of not less than fifteen (15) days from the date that the said Order by this Order made pursuant to Section 16(1) of the European Arrest Warrant Act 2003 (as amended) takes effect and a further period not exceeding ten (10) days until the date of his delivery as aforesaid'

3 On 4th May 2018, the Supreme Court refused to grant leave to appeal. If the lodgment of the application for leave to appeal had been made in time, the stay ceased on that day.

4 The minister requested that the surrender proceedings be re-entered before the High Court and I issued a production order for the respondent to appear on 9th May 2018.

5 The minister sought an Order pursuant to s.16(5) fixing a new date for the surrender of the respondent to Lithuania. According to the minister, there were two reasons necessitating this application. In the first place, this respondent had informed the minister that he was afraid of flying and arrangements had to be made to transport him by sea and land and that this involved transit permission from four other countries, as well as making appropriate ferry arrangements. Secondly, the minister contended that these arrangements could not be put in place prior to the expiry of the time for his surrender pursuant to subsection 3A of s. 16 of the Act of 2003 i.e. within 10 days from 4th May 2018.

6 If the Order of 23rd February 2018 stayed the taking effect of the Order which had been made under s. 16(1), then no order for extension was required by this Court. This is because his surrender could be effected within 25 days from the determination of the Supreme Court on 4th May 2018. However, the minister submitted that it appeared that the stay was only on that part of the surrender pursuant to s. 3A of the Act of 2003 rather than the taking effect of the Order pursuant to s.16(3) of the said Act.

7 In the course of counsel's submissions, a significant legal issue arose as to whether the application for leave to appeal had been lodged within the 15 days. If there had been no lodgment within the 15 days, the stay on surrender lapsed. In those circumstances, it would appear that the respondent was in unlawful custody as he had not been surrendered within 25 days of the date that the stay had ceased to be effective. In a number of cases involving the non-adherence to time limits for surrender as set out in the Act of 2003 in the absence of a stay on orders of surrenders, the Supreme Court released persons from custody pursuant to applications under Article 40.4.2 of the Constitution. These are Ó Fallúin v The Governor of Cloverhill [2007] IESC 20, Rimsa v The Governor of Cloverhill [2010] IESC 47, and Voznuka v Governor of Dochas Centre Mountjoy Prison [2013] IESC 33. While none of those cases deal with the precise question arising in this case, namely when the stay lapsed, the cases are good authority for the principle that unless there is clear authority permitting the continued detention of a requested person, that person must be released from custody.

8 Although s. 16(4)(c)(i) permits an application to fix a new date for surrender, even if surrender has not been made within 25 days, the subsection clearly envisages that such an application be made 'as soon as practicable after that expiration.' The minister, quite correctly, did not pursue an argument that this should be deemed to be an application made as soon as practicable. Therefore, if the stay came to an end on 9th March 2018, there being no other legal authority to keep him in custody, the respondent has to be released from custody if an application is made pursuant to Article 40.4.2 of the Constitution.

9 During the course of the hearing pursuant to s.16(5) of the Act of 2003, the respondent made such an application under Article 40.4.2 of the Constitution for his release on the ground that he was in unlawful custody. He argued that the time for surrender had long since expired and that he should now be released. Counsel for the minister did not object to such an application being made and I believe the minister was right not to so object. The High Court has specific duties under the Constitution and is under a duty to make an enquiry. I do not make any comment about the effect that an abuse of process might have on the duty of the High Court since it is entirely unnecessary. In the present case, even if there had been a misunderstanding as to the legal position, there was no abuse of process. I therefore made the enquiry and order that the respondent be produced before me later in the day and that the Governor of Cloverhill certify in writing the grounds of his detention. Ultimately, the same counsel for the minister was instructed to appear for the Governor and he adopted the arguments that the minister had made. I will hereafter refer to the submissions of counsel for the minister but where relevant these encompass the submissions of the Governor. In light of the urgency of the matter, a combined judgment is given in respect of both applications before me. Some of the following submissions were made prior to the formal order directing the enquiry, but I will deal with these as a single set.

10 Initially, counsel for the minister appeared to urge the Court that the fact that the Supreme Court had heard the appeal meant that he came within the second section of this Court's Order which had granted the stay. That part of the stay was clearly predicated on the lodgment of the application for leave to appeal being made on time. I am quite satisfied that unless the application for leave to appeal was lodged on or before 9th March 2018 then the stay lapsed.

11 Mr. Tony Hughes, solicitor for the respondent, gave evidence. He stated that on 9th March 2018 he went to the Supreme Court office with 4 copies of the application for leave to appeal. He said that the Registrar read the papers and said the form was wrong; that some...