Minister for Justice and Equality v Jefisovas

JurisdictionIreland
JudgeMs Justice Donnelly
Judgment Date08 April 2019
Neutral Citation[2019] IEHC 248
CourtHigh Court
Docket Number[2017/218 EXT.]
Date08 April 2019
BETWEEN
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
NELIJUS JEFISOVAS
RESPONDENT

[2019] IEHC 248

Donnelly J.

[2017/218 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – Fair trial rights – Respondent objecting to his surrender pursuant to a European arrest warrant – Whether the respondent’s surrender was prohibited because a cassation appeal was heard in his absence

Facts: Pursuant to a European arrest warrant (EAW) dated 22nd August, 2017, an issuing judicial authority of the Republic of Lithuania sought the surrender of the respondent, Mr Jefisovas, to serve a sentence of eight years and three months’ imprisonment imposed upon him for an offence of illicit trafficking in narcotic drugs and psychotropic substances. Although the respondent had made a number of points of objection to his surrender, the most substantive one was his claim that his surrender was prohibited under the provisions of the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States and the European Arrest Warrant Act 2003, because a cassation appeal was heard in his, and his lawyer’s, absence.

Held by the High Court (Donnelly J) that, based upon the law in Hermi v Italy [2005] ECHR 428, the respondent had not established that his absence from the hearing before the court of cassation was a breach of his fair trial rights within the meaning of Article 6 of the European Convention on Human Rights. Donnelly J held that, having considered Tupikas (Case C-270/17 PPU), there was no need to make a preliminary reference to the CJEU pursuant to the provision of Article 267 of the Treaty on Functioning of the European Union. Donnelly J was satisfied that the CJEU would follow its findings in Tupikas at para. 96 (following on from its decision in Openbaar Ministerie v Pawel Dworzecki (C-108/16 PPU, 25th May 2016)), to the effect that it is a matter for an executing judicial authority to take into account other circumstances that enable it to ensure that the surrender of the person concerned does not entail a breach of his rights of defence. Donnelly J held that, in those circumstances, where no defence rights had been breached in this case, there was also no further reason to seek the preliminary reference.

Donnelly J held that, having rejected the respondent’s points of objection, she would make an order under s. 16(1) of the 2003 Act for the surrender of the respondent to such other person as was duly authorised by the issuing state to receive him.

Application granted.

JUDGMENT of Ms Justice Donnelly delivered on the 8th day of April, 2019
1

Pursuant to a European Arrest Warrant (‘EAW’) dated 22nd August, 2017, an issuing judicial authority of the Republic of Lithuania (‘Lithuania’) seeks the surrender of this respondent to serve a sentence of eight years and three months” imprisonment imposed upon him for an offence of illicit trafficking in narcotic drugs and psychotropic substances. Although the respondent has made a number of points of objection to his surrender, the most substantive one is his claim that his surrender is prohibited under the provisions of the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’) and the European Arrest Warrant Act 2003 as amended (‘the Act of 2003’), because a cassation appeal was heard in his, and his lawyer's, absence,.

2

The application for his surrender was heard over a number of dates. There has been a considerable lapse of time but this was necessitated by the obtaining of further information from the issuing judicial authority, the obtaining of information through the offices of Eurojust concerning cassation appeals throughout the European Union (‘EU’) and to allow counsel time to consider the materials and to make submissions. This has not affected the respondent's liberty or the date on which his physical surrender to Lithuania could have taken place on foot of any order for surrender that may have been made, as he has been serving a sentence in this state during this period.

3

Prior to dealing with the contested matters, this Court must consider the uncontested matters in order to establish whether the conditions under the Act of 2003 for surrender have been met.

A Member State that has given effect to the Framework Decision
4

The surrender provisions of the Act of 2003 apply to the member states of the EU that the Minister for Foreign Affairs have designated as member states having, under their national law, given effect to the 2002 Framework Decision. I am satisfied that the Minister for Foreign Affairs has designated Lithuania as a member state for the purpose of the Act of 2003.

Section 16 (1) of the Act of 2003
5

Under the provisions of s.16(1) of the Act of 2003, the High Court may make an order directing that the person be surrendered to the issuing state provided that:

(a) The High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,

(b) the EAW has been endorsed in accordance with s.13 for execution in this jurisdiction,

(c) the EAW states, where appropriate, the matters required by s.45,

(d) the High Court is not required under s.21(a), s. 22, s.23 or s.24 of the Act of 2003 to refuse surrender,

(e) the surrender is not prohibited by part 3 of the Act of 2003.

Identity
6

I am satisfied on the basis of the affidavit of Sergeant James Kirwan, member of An Garda Síochána, the affidavit of the respondent and the details set out in the EAW, that the respondent, Nelijus Jefisovas who appears before me, is the person in respect of whom the EAW has issued.

Endorsement
7

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 21(a), 22, 23 & 24 of the Act of 2003
8

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.

Part 3 of the Act of 2003
9

Subject to further considerations of s. 37, s.38, and s.45 of the Act of 2003 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.

Section 38 of the Act of 2003
10

Section 38 of the Act of 2003 provides for two situations in which surrender may be ordered for specific offences. If the offence in the EAW is an offence referred to in Article 2 para 2 of the Framework Decision then, provided the requirements of minimum gravity in terms of available sentencing powers have been met, there is no requirement to find correspondence/double criminality of the offence with an offence in this jurisdiction.

11

In the present case, the issuing judicial authority has ticked the box of illicit trafficking in narcotic drugs and psychotropic substances under point (e) of the European Arrest Warrant. In so doing they rely on Article 2 para. 2 of the Framework Decision. The respondent has been given an eight years and three month sentence for this offence. The facts set out that he transported and sold large quantities of a narcotic substance. In those circumstances, there is no manifestly incorrect designation of the box in point (e). His surrender is therefore not prohibited under the provisions of s.38 of the Act of 2003.

Section 11 of the Act of 2003
12

The respondent claimed that there was a lack of clarity in the warrant; in particular, he submitted as to the number of offences for which his surrender was sought. In those circumstances, he submitted that surrender was prohibited.

13

The submission can only be understood by reference to an earlier EAW that had issued for this respondent. That earlier EAW issued on the 22nd July, 2014. It stated the respondent was sought in respect of two offences for which he had been sentenced by Klaipẻda Regional Court. The main difference between the present EAW and the original EAW was a reference to a subsequent ruling by the Supreme Court of Lithuania. What is stated in the present EAW is that the ruling of Klaipẻda District Court and the ruling of Klaipẻda Regional Court were changed by the ruling of the Supreme Court of Lithuania on the 9th December, 2014. This decision of the Supreme Court post-dated the issuance of the earlier warrant.

14

After the respondent's points of objection were received, the central authority made further requests of the issuing judicial authority. The letter queried the sentences he had received in the various courts. Confirmation was also sought that the facts set out at point (e) of the warrant were the same facts which the Supreme Court took into account when making its decision on the 9th of December, 2014.

15

The issuing judicial authority replied on the 30th January, 2018, stating that the Klaipẻda City District Court had imposed ‘ a punishment of imprisonment of eight years and three months in respect of part 2 of Article 260 of the Criminal Code of the Republic of Lithuania and a punishment of imprisonment for two years six months pursuant to part one of Article 265 of the Criminal Code of the Republic of Lithuania. These penalties were cumulated by adding them partially and a final penalty of imprisonment for eight years and six months was imposed on N. Jefisovas. By its ruling of 20th March, 2014 Klaipẻda regional court did not change the punishment to N. Jefisovas. On the 9th of December 2014, the Supreme Court of Lithuania annulled the sentence of N. Jefisovas pursuant to part 1 of Article 265 of the Criminal Code of the Republic of Lithuania; therefore, he stayed sentenced for eight years three months imprisonment, pursuant to part 2 of Article 260 of the Criminal Code of the Republic of Lithuania’. The issuing judicial authority also stated that the facts...

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1 cases
  • Minister for Justice & Equality v Minierski
    • Ireland
    • High Court
    • 24 Octubre 2022
    ...not amount to a direct statement that the instructions were actually withdrawn.” (vii) In Minister for Justice and Equality v. Jefisovas [2019] IEHC 248, Donnelly J. concluded at para. 61; - “[61] In the present case, based upon the law in Hermi, the respondent has not established that his ......

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