Minister for Justice and Equality v Dziugas
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 02 February 2018 |
| Neutral Citation | [2018] IEHC 87 |
| Court | High Court |
| Docket Number | [RECORD NO. 2017 51 EXT] |
| Date | 02 February 2018 |
[2018] IEHC 87
THE HIGH COURT
Donnelly J.
[RECORD NO. 2017 51 EXT]
International Law – Extradition – European Arrest Warrant Act, 2003, as amended – Framework decision – Breach of fundamental rights – Arts. 3 and 8 of the European Convention on Human Rights – Trial in absentia – Lack of corresponding offence
Facts: The issuing judicial authority sought the surrender of the respondent for the purpose of execution of sentence of one year and three months imposed upon him in relation to two separate sentences. The central issue was whether the act that the respondent committed in the requesting state (‘Lithuania’) was done without a claim of right made in good faith and would therefore be an offence of theft, if those acts had been committed in Ireland. The respondent contended that one of the offences for which the surrender was sought did not have the corresponding offence in the present jurisdiction and that the respondent was not present when the suspended sentence was revoked and thus, there was breach of s. 45 of the European Arrest Warrant Act 2003, as it was a trial in absentia. The respondent contended that his surrender was in breach of arts. 3 and 8 of the European Convention on Human Rights (‘ECHR’).
Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that the objections raised by the respondent were baseless. The Court found that the offence of ‘self-willed conduct’ which the EAW described corresponded to the offence of theft in the State and thus, the surrender of the respondent was not prohibited. The Court held that there was no evidence to prove that the respondent rights would be violated under art. 3 of the ECHR. The Court was satisfied that there would be no breach of the respondent's fundamental rights under s. 45 of the EAW Act, 2003 because the respondent was present at the hearing of his trial and sentencing. The Court observed that although the suspended sentence was revoked in the respondent's absence, the issuing judicial authority had guaranteed that the respondent would be entitled for the right to request a retrial or appeal upon his return.
The surrender of the respondent is sought by an issuing judicial authority of the Republic of Lithuania pursuant to a European Arrest Warrant (‘EAW’) dated 20th December, 2016. He is sought to serve a custodial sentence of one year and three months imposed upon him in respect of two separate sentences. This sentence was initially imposed on 3rd October, 2006 but it was suspended on certain conditions. The EAW states that he did not comply with the obligations imposed upon him which included a condition of residence, and on 2nd May, 2007, the suspension of the sentence was revoked.
The respondent has raised two substantive points of objection in the course of the proceedings. The first point of objection is that one of the offences for which surrender is sought does not correspond with an offence in this jurisdiction. The second point of objection is that he was not present when the suspended sentence was revoked and therefore it would either be a breach of s. 45 or a breach of his rights to surrender him in those circumstances.
The Court must ensure that all conditions are met before it can order the surrender of any person whose surrender is sought. The Court will therefore rule on all issues, even those not disputed by the respondent.
I am satisfied that the Minister for Foreign Affairs has designated the Republic of Lithuania as a Member State for the purposes of the European Arrest Warrant Act of 2003, as amended, (‘the Act of 2003’).
I am satisfied on the basis of the evidence of Garda Eoin Kane, member of An Garda Siochána, and the details set out in the EAW, that the respondent, Zanas Dziugas, who appears before me, is the person in respect of whom the EAW has issued.
I am satisfied that the EAW has been indorsed in accordance with s. 13 for execution.
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.
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 surrender of the respondent is sought for two offences. One of those offences poses no difficulty with correspondence. It is stated that the respondent, with other people, ‘in order to commit a theft’ went to the home of a named person where they removed the window frame of the house, smashed the pane and broke inside where they seized various items of property. Those acts, if committed in this jurisdiction, would correspond with an offence of burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud) Act, 2001, (‘the Act of 2001’) and the offence of theft contrary to s. 4 of the said Act of 2001. In circumstances where theft in Lithuania is punishable by imprisonment for a term of up to 6 years and he received an aggregated sentence of one year and three months of imprisonment, the provisions of minimum gravity have also been met.
The objection regarding lack of correspondence arises in respect of the second offence. If there is no correspondence of that offence with an offence in this jurisdiction, then, in accordance with the principles of the decision of Minister for Justice and Equality v. Ferenca [2008] IESC 52, the respondent cannot be surrendered on this European Arrest Warrant. This is because an aggregate sentence has been imposed in respect of both offences set out in the European Arrest Warrant.
In Part (e) of the EAW, the details of the second offence are as follows:
‘On 8 January, 2005, at about 5 p.m., Z.D. arrived at the house of V.K. in (location), in order to regain the mobile phone ‘Nokia 3310’ that belonged to him, disregarded the procedure established by the law and wilfully exercised an existing right of his own, which is disputed, though not exercised yet, and took from home of V.K. and this way seized unlawfully the victims' TV set ‘Becko 20 B9M07’ worth LTL400, thereby causing the property damage in the amount of LTL400 to V.K..’
According to the EAW, that offence is described in the Criminal Code of Lithuania as ‘self-willed conduct’. The relevant law defines such an offence as follows:
‘A person who, by disregarding the procedure established by the law, wilfully exercises an existing or alleged right of his own or another person which is disputed or recognised, though not exercised yet, and incurs major damage to the persons' rights or legitimate interests shall be punished by a fine or by arrest or by imprisonment for a term of up to three years.’
By contrast, the offence of theft relates to the open seizure of another's property and has a penalty of fine or loss of liberty for up to six years.
Counsel for the respondent submitted that the details in the EAW suggested that the respondent had a claim of right. For the act to amount to theft, it had to have been carried out dishonestly and there was no dishonesty in the facts as stated in the European Arrest Warrant. On the face of the EAW, he was wilfully exercising an existing right of his own, which was disputed, though not exercised yet. Although this was wrong in the context of the law in Lithuania, it was submitted that this was not an act which would amount to a theft in this jurisdiction.
Counsel for the minister submitted that the facts as outlined could never be honest; there was dishonesty inherent in what the respondent had done. It could never be otherwise than dishonest to go to another person's home and take their property, even when the taker of the property asserts that the second person owes them a separate item of property. Counsel submitted that there could not be a claim made in good faith in those circumstances.
Having heard submissions on the issue, the Court decided it was an appropriate case in which to seek further information from the issuing judicial authority by utilising the s. 20 procedure under the Act of 2003. A letter of request was submitted to the issuing judicial authority. That letter set out the particulars of the Irish legal provisions and the reason for the request. The Court asked that four specific issues be addressed as follows:
‘(1) Please provide full details and information about the first offence on the warrant and the respondent's state of mind in committing that offence.
(2) Please clarify the phrase ‘disregarded the procedure established by the law and wilfully exercised an existing right of his own which is disputed or recognised, though not exercised yet’ and whether that means that the respondent exercised a right that he held but did so contrary to the established procedure.
(3) Please explain in detail whether the facts in which the conviction is based, he acted ‘dishonestly’ as defined under Irish law that is in doing the act he acted ‘without a claim of right made in good faith’.
(4) Please provide any other information on the matter which would be useful to the High Court to understand the factual circumstances of the offence and the respondent's state of mind in committing the offence in order to assist it in deciding whether the act or omission constituting the offence would, if committed in Ireland, qualify as a theft offence contrary to s. 4 of...
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