Minister for Justice and Equality v Lisauskas

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 05 March 2020
• Neutral Citation: [2020] IEHC 121
• Docket Number: [2015 No. 266 EXT]
• Court: High Court
• Date: 05 March 2020

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

TOMAS LISAUSKAS

RESPONDENT

[2020] IEHC 121

Binchy J.

[2015 No. 266 EXT]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 16 – Applicant seeking an order for the surrender of the respondent pursuant to a European arrest warrant – Whether the European arrest warrant was validly issued

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking, on behalf of the Republic of Lithuania, an order for the surrender of the respondent, Mr Lisauskas, to that country pursuant to a European arrest warrant dated 18th April, 2014 (the EAW). The EAW was issued by a Mr Valys whose position was described as Prosecutor General, who issued the EAW on behalf of the Prosecutor General’s Office of the Republic of Lithuania, which was named as the judicial authority which issued the warrant.

Held by Binchy J that it was apparent from the decision of the Court of Justice of the European Union (CJEU) in YC (case C-626/19 PPU) that the establishment of a separate right of appeal against the decision to issue a European arrest warrant taken by a judicial authority other than a court offers a sufficient guarantee of the level of judicial protection required by the Framework Decision, provided that the appellate court may carry out an assessment of compliance as to the conditions for the issue of a European arrest warrant, including the proportionality of the same. Binchy J noted that the issuing state had confirmed the availability of such an appeal; accordingly, it follows that the system in Lithuania whereby a European arrest warrant is issued by the Prosecutor General’s Office meets the requirements inherent in effective judicial protection, at both the first level (the point at which the national arrest warrant is issued) and, at the second level, at which a European arrest warrant is issued, as determined by the CJEU. That being the case, Binchy J held that this point of objection must be rejected.

Binchy J held that since that was the only surviving objection to his surrender, the Court would make an order for the surrender of the respondent pursuant to the EAW, in accordance with s. 16 of the European Arrest Warrant Act 2003.

Order granted.

JUDGMENT of Mr. Justice Binchy delivered on the 5th day of March, 2020

1 By these proceedings the applicant seeks, on behalf of the Republic of Lithuania, an order for the surrender of the respondent to that country pursuant to a European arrest warrant dated 18th April, 2014, (“the EAW”). The EAW was issued by a Mr. Darius Valys whose position is described as Prosecutor General, who issued the EAW on behalf of the Prosecutor General's Office of the Republic of Lithuania, which is named as the judicial authority which issued the warrant.

2 The EAW was endorsed by the High Court on 21st December, 2015. The respondent was arrested and brought before the Court on 21st April, 2016.

3 Points of objection were delivered on behalf of the respondent on 27th May, 2016. The first objection states that the EAW is not validly issued because the Prosecutor General, who issued the EAW, is not a valid issuing judicial authority. It is also pleaded that there was no proper judicial oversight of the issuing of the EAW.

4 Four other points of objection were also raised on behalf of the respondent. However, this objection – that the Prosecutor General is not a valid issuing judicial authority – was the only objection pursued at hearing. That hearing took place on 29th January, 2020, by which time the proceedings had given rise to judgments of the High Court (on 27th February, 2017), the Court of Appeal (on 3rd November, 2017), the Supreme Court (on 31st July, 2018) and the Court of Justice of the European Union (“CJEU”) (on 27th May, 2019). The issue with which all of the judgments of all of those courts is concerned is whether or not, as a matter of law, a public prosecutor may be considered an issuing judicial authority for the purposes of issuing a European arrest warrant.

5 Before addressing that question, I will address the remaining issues, of a routine nature, about which the Court must be satisfied when considering an application under s. 16 of the European Arrest Warrant Act 2003 (as amended) (the “Act of 2003”). Firstly, I was satisfied that the person before the Court is the person to whom the EAW refers, and this was not disputed by the respondent.

6 I was further satisfied that none of the matters referred to ss. 21A, 22, 23 and 24 of the Act of 2003 arise for consideration on this application, and that the surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.

7 At para. (B) of the EAW, it is stated that the EAW is based upon an arrest warrant described as a “ruling dated 28th May 2013 of the District Court of Druskininkai Town” to “replace the measures of constraint – the written pledge not to leave and the obligation to periodically register at a police station – with arrest (criminal case number 1-18-182/2014).”

8 At para. (C) of the EAW it is stated that the maximum length of the custodial sentence or detention order which may be imposed for the offence to which the warrant relates is imprisonment for a term of between two and seven years. Accordingly, minimum gravity is established for the purpose of the Act of 2003.

9 At para. (E), on p. 5 of the EAW it is stated that the warrant relates to one offence, described in the following terms:

“On 22 August 2012, at approximately 11:30pm on a cycle track between Druskininkai Bus Station and Druskininkai Tourism Centre, in Gardino Street, Druskininkai Town, Tomas Lisauskas put a knife to the left side of the neck of victim Mindaugas Salciunas, thus depriving the victim of a possibility of resistance, and seized a metal chain of white colour worth LTL 250 from the victim's neck.

Tomas Lisauskas is charged with a criminal act provided for in paragraph 2 of Article 180 of the Criminal Code of the Republic of Lithuania.”

10 Article 180(2) of the Criminal Code of the Republic of Lithuania is then set out, and it provides:

“A person who commits the robbery by breaking into premises or using a weapon other than a firearm, a knife or another item specially designed to injure a person shall be punished by imprisonment for a term of up to seven years.”

11 At para. (E)(I) the issuing judicial authority has ticked the offence of “organised or armed robbery”. Accordingly, it is not necessary to examine the acts of the respondent described in the EAW, as comprising the offence, for correspondence with an equivalent offence in this jurisdiction.

12 On 31st July, 2018, the Supreme Court made a request to the CJEU for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. The following questions were referred by the Supreme Court to the CJEU:

i. Are the criteria according to which to decide whether a public prosecutor designated as an issuing judicial authority for the purposes of Art. 6(1) is a judicial authority within the autonomous meaning of that phrase in Art. 6(1) of the Framework Decision of 2002 on European arrest warrant and surrender proceedings between Member States that (1) the public prosecutor is independent from the executive and (2) considered in his own legal system to administer justice or participate in the administration of justice?

ii. If not, what are the criteria according to which a national court should determine whether a public prosecutor who is designated as an issuing judicial authority for the purposes of Art. 6(1) of the Framework Decision is a judicial authority for the purposes of Art. 6(1)?

iii. Insofar as the criteria include a requirement that the public prosecutor administer justice or participate in the administration of justice is that to be determined in accordance with the status he holds in his own legal system or in accordance with certain objective criteria? If, objective criteria what are those criteria?

iv. Is the Public Prosecutor of the Republic of Lithuania a judicial authority within the autonomous meaning of that phrase in Art. 6(1) of the Framework Decision of 2002 on European arrest warrant and surrender proceedings between Member States?

13 The CJEU answered these questions in its decision handed down on 27th May, 2019, under the title of PF, case C-509/18. It concluded that the concept of a “judicial authority” within the meaning of Article 6(1) of the Framework Decision is capable of including authorities of a Member State which, although not necessarily judges or courts, participate in the administration of criminal justice in that Member State. It further concluded that an authority such as a Public Prosecutor's Office, which is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before court must be regarded as participating in the administration of justice of the relevant Member State. It also held that having regard to the importance of the role of the issuing judicial authority in the issue of European arrest warrants, that authority must act independently of the Executive in arriving at that decision. In turn, that independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the Executive [see para. 52 of the judgment in PF].

14 In answer to the specific question as to whether the Public Prosecutor of the Republic of Lithuania is a judicial authority within the autonomous meaning of that phrase in Article 6(1) of the Framework Decision, the CJEU answered the question in...