Minister for Justice and Equality v Kacevicius

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 24 May 2019
• Neutral Citation: [2019] IEHC 434
• Court: High Court
• Docket Number: Record No. 2018/247 EXT
• Date: 24 May 2019

[2019] IEHC 434

THE HIGH COURT

Binchy J.

Record No. 2018/247 EXT

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ARMANDAS KACEVICIUS

RESPONDENT

European arrest warrant – Order for surrender – Right to freedom from inhumane or degrading treatment – Applicant seeking an order for the surrender of the respondent to the Republic of Lithuania pursuant to a European arrest warrant – Whether, if surrendered, the respondent would be exposed to prison conditions and/or the risk of violence from other prisoners such as would breach his right to freedom from inhumane or degrading treatment

Facts: The applicant, Minister for Justice and Equality, sought an order for the surrender of the respondent, Mr Kacevicius, to the Republic of Lithuania pursuant to a European Arrest Warrant (EAW) dated 15th December, 2017. The EAW was endorsed by the High Court, in accordance with s. 13(2) of the European Arrest Warrant Act 2003 on on 30th July, 2018. It was issued by a judicial authority, namely Kaunas Regional Court, and was signed on its behalf by Judge Gražys. The respondent made four objections to his surrender as follows: (1) it was not established that the offences of which the respondent was convicted corresponded to offences in Ireland’s jurisdiction, and specifically they failed to meet the constituent elements of the offence of theft under Irish law as set out in s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001; (2) the surrender of the respondent would constitute a disproportionate interference with his right to respect for his private and family life as protected by Article 41 of the Constitution and/or Article 8 of the European Convention on Human Rights, having regard to the nature of the offences, the length of the custodial sentence and the personal and family connections of the respondent in the State; (3) the EAW was ambiguous and unclear in that (i) it referred to two different offences, one pursuant to Article 178(1) of the Criminal Code of the Republic of Lithuania and the other referring to Article 178(2) of that Code, (ii) it was unclear about the domestic court order which it purported to be based on and which was said to be enforceable as against the respondent, and (iii) it did not specify the nature of the breaches that led to the respondent’s suspended sentence being revoked; (4) if surrendered, the respondent would be exposed to prison conditions and/or the risk of violence from other prisoners such as would breach his right to freedom from inhumane or degrading treatment under Article 40.3.1 of the Constitution and/or Article 3 of the European Convention on Human Rights.

Held by the High Court (Binchy J) that the applicant had established correspondence between the offences committed by the respondent in Lithuania, and s. 4(1) of the 2001 Act. Binchy J held that there was nothing out of the ordinary about the respondent’s circumstances such as to elevate his rights under Article 8 of the Convention over and above the public interest in his surrender. Binchy J was satisfied that the reference to Article 178(2) in the EAW was in the nature of a typographical error which had no bearing upon the substantive merits of the application. Binchy J noted that the respondent’s appeal was unsuccessful, leaving the decision of the District Court of 4th September, 2017, intact and that the EAW correctly stated that this was the decision on which the EAW was based. Binchy J held that if a convicted person wishes to challenge the circumstances in which a suspended sentence has become activated, that is a challenge that must be brought in the jurisdiction of the issuing State.

Binchy J held that, based on the information made available to the Court, there was a very real risk that a person incarcerated in either Alytus or Marijampolë Prisons would be subjected to inhuman or degrading treatment. Accordingly, while he had otherwise been satisfied to make an order for the surrender of the respondent, he was not prepared to do so unless the Lithuanian authorities could address to his satisfaction the concerns raised by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment about the conditions in and management of Alytus and Marijampolë Prisons or alternatively, confirm that the respondent would not be required to serve his sentence in either of those prisons. Binchy J held that he would adjourn the matter to allow the applicant to liaise with the issuing judicial authority in that regard. Further, if the respondent wished to name those who he claimed assaulted him previously, Binchy J held that he would consider seeking assurances that he would not be incarcerated in the same facility as those individuals.

Matter adjourned.

JUDGMENT of Mr. Justice Binchy delivered on the 24th day of May, 2019

1 By these proceedings, the applicant seeks an order for the surrender of the respondent to the Republic of Lithuania pursuant to a European Arrest Warrant (‘EAW’) dated 15th December, 2017. The EAW was endorsed by this Court, in accordance with s. 13(2) of the European Arrest Warrant Act 2003 (as amended) (‘the Act of 2003’) on 30th July, 2018. It was issued by a judicial authority, namely Kaunas Regional Court, and was signed on its behalf by Judge Evaldas Gražys. I am satisfied that the EAW contains all the information required by the Act of 2013.

2 At the hearing of these proceedings on 14th May, 2019, I was satisfied that the respondent is the person in respect of whom the EAW was issued. Furthermore, the respondent did not place his identity in issue at the hearing of this application.

3 Additional information was sought by the applicant from Kaunas Regional Court by letter dated 29th June, 2018. A reply issued in the name of Kaunas Regional Court by letter dated 3rd July, 2018.

4 The respondent was arrested and brought before this Court on 6th April, 2019. Points of objection were delivered on behalf of the applicant on 1st May, 2019, grounded upon an affidavit of the respondent (although this was not sworn until 18th May). The hearing of this application took place on 14th May, 2019.

5 At para. B of the EAW, it is stated that the warrant is based on a decision of the District Court of Marijampolë region of 4th September, 2017. This was the third of three court decisions concerning the respondent. The first of these decisions was handed down by the same District Court on 14th June, 2016, at which the respondent appeared in person and at which he was sentenced to six months” imprisonment for theft offences. That sentence was suspended for a period of one year.

6 The second court order was handed down by the same court on 21st February, 2017. He was sentenced to a further six months” imprisonment, again in relation to theft offences. This sentence was combined with the earlier sentence of six months so that the respondent was given a combined sentence of imprisonment for a term of one year, which was suspended for a period of two years, subject to certain conditions that are set out in the EAW.

7 The EAW then states that the respondent failed to comply with the requirements as to the suspension of his sentence, and so on 4th September, 2017, the District Court at Marijampolë reversed the suspension of penalty and activated the sentence of one year. The EAW states that the respondent appeared in person at the trials resulting in conviction and imposition of penalty. It further states that he appealed the decision of 4th September, 2017, but that appeal was dismissed by the Kaunas Regional Court on 6th October, 2017. The respondent was not in Court on 4th September, 2017 when the suspension of sentence was revoked, but he was aware of that decision because he appealed it, albeit unsuccessfully.

8 In para. C of the EAW, it is stated that the maximum custodial sentence or detention order which may be imposed for the offences with which the EAW is concerned, is punishment by way of imprisonment for a term of up to three years. It is apparent from the foregoing therefore that the requirement as to minimum gravity for the purposes of the Act of 2003 and the Framework Decision is established.

9 The EAW relates to two offences set out at para. E of the same. In the following terms:-

‘Pursuant to the judgment of the District Court of Marijampolë region of 14 June 2016:

(1) Armandas Kacevicius has committed theft acting with an accomplice, namely: on 16 September 2015, at around 10.00 p.m. in the house belonging to J. Z. at Sodu Str. 2 in Kazlu Ruda, acting together they seized from the room the red telephone belonging to R.K., valued at EUR 10, also they seized from the pocket of the jacket belonging to R.K. the black telephone NOKIA, valued at EUR 20, also from the house they seized various things belonging to J.Z. for the total value of EUR 160,5. Total damage caused to the victims during this criminal act amounted to EUR 190,5. The described acts of Armandas Kacevicius conformed the attributes of the criminal offences provided for in Art. 178 (2) of the Criminal Code of the Republic of Lithuania.

Pursuant to the judgment of the District Court of Marijampolë region of 21 February 2017:

(3) Armandas Kacevicius seized another's property, namely: on 30 October 2016, at around 4.00 a.m., from the homestead belonging to V.M. at Silo Str. 19, village Bagotosios, Kazlu, Ruda Municipality, he seized 26 planted thujas, valued at EUR 8 each, thereby causing property damage to V.M., valued at EUR 208.

The described acts of Armandas Kacevicius conformed the attributes of the criminal offences provided for in Art. 178 (2) of the Criminal Code of the Republic of Lithuania.’

10 At the hearing of this application it was agreed that the number 3 opposite the second paragraph was an error, and this should have been numbered 2.

11 However, there is what appears on the face of it to be a more...