Minister for Justice and Equality v Ziznevskis

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 16 June 2020
• Neutral Citation: [2020] IEHC 415
• Docket Number: [2019 No. 282 EXT]
• Court: High Court
• Date: 16 June 2020

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

TOMAS ZIZNEVSKIS

RESPONDENT

[2020] IEHC 415

Binchy J.

[2019 No. 282 EXT]

THE HIGH COURT

European arrest warrant – Correspondence – Due process – Applicant seeking an order for the surrender of the respondent to the Republic of Lithuania pursuant to a European arrest warrant – Whether the actions of the respondent correspond to an offence in the State

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Ziznevskis, to the Republic of Lithuania pursuant to a European Arrest Warrant dated 12th January, 2012 (the EAW). The objections pursued at the hearing of the application were as follows: (1) it was not clear that a decision had been made to charge and try the respondent with the offences described in the EAW, and, accordingly, the presumption to this effect contained in s. 21A(2) of the European Arrest Warrant Act 2003 does not apply, and the Court was on enquiry as to whether or not there was, at the date of issue of the EAW, an intention to charge and try the respondent; (2) in relation to the offences described in the EAW in respect of which ticked box offences were not invoked, there was no correspondence with offences in the State; (3) there had been a failure to guard the due process rights of the respondent arising from “culpable and blameworthy prosecutorial delay” in circumstances where the original allegations date back to a period between 2008 and 2010; (4) the surrender of the respondent would be contrary to s. 37 of the 2003 Act, in that it would interfere with his right to respect for his private and family life as guaranteed by Article 8 of the Convention, because since the alleged offences the respondent had formed a family in the State and had a six-year-old child; (5) in the event of his surrender the respondent would be exposed to a risk of serious violence or death and as such this would violate his right to freedom from inhuman or degrading treatment as guaranteed by Article 3 of the Convention and/or Article 40.3.1 of the Constitution.

Held by Binchy J that, having considered all the grounds of objection pleaded and argued for on behalf of the respondent, he rejected all bar one of the arguments made on his behalf. The argument that Binchy J upheld was that concerning the lack of correspondence as regards one of the incidents described in offence number five with any offence in the State.

Binchy J held that he would order, pursuant to s. 16 of the 2003 Act, that the respondent is surrendered to the Republic of Lithuania for prosecution of all offences described in the EAW, save those activities referred to at para. E.5 of the EAW that are alleged to have occurred between 7th April and 9th April, 2010, and 15th May 2010, in the garden community Lokomotyvas.

Application granted.

JUDGMENT of Mr. Justice Binchy delivered on the 16th day of June, 2020

1 By this application the applicant seeks an order for the surrender of the respondent to the Republic of Lithuania pursuant to a European Arrest Warrant dated 12th January, 2012 (“the EAW”). The EAW was endorsed by the High Court on 18th September, 2019 and the respondent was arrested and brought before this Court on 19th December, 2019.

2 The EAW was issued by a Deputy Prosecutor General of the Prosecutor General's Office of the Republic of Lithuania, the latter being the issuing judicial authority (the “IJA”). This gave rise to an objection, in the notice of objection filed on behalf of the respondent on 16th February, 2020, that the EAW had not been issued by a judicial authority in accordance with the Council Framework Decision of 13th June, 2002, on the European arrest warrant and the surrender procedure between Member States (2002/584/JHA) (the “Framework Decision”). However, by the time of the hearing of this application, this Court had handed down its decision in the matter of Minister for Justice and Equality v. Lisauskas [2020] IEHC 121, by which decision this Court determined that the Prosecutor General's Office of the Republic of Lithuania fulfilled the requirements of an issuing judicial authority, for the purposes of the Framework Decision, as so interpreted by the Court of Justice of the European Union in its decisions in the cases of PF ( case C-509/18), YC ( case C-626/19 PPU) and XD ( case C-625/19 PPU).

3 At the hearing of the application, I was satisfied that the person before the Court is the person in respect of whom the EAW was issued, and no issue was raised in this regard in opposition to this application. I was further satisfied that the surrender of the respondent is not prohibited by reason of any of the matters referred to in ss. 22, 23 and 24 of the European Arrest Warrant Act 2003 (as amended) (hereinafter “the Act of 2003”).

4 At para. B.1 of the EAW, it is stated that it is based upon three orders of the Kaunas city District Court, the first being an order of 15th March, 2011, the second being an order of 9th May, 2011, and the third being an order of 3rd January, 2012. The first and third of these orders relate to the same matter and comprise an order to impose a provisional arrest measure on the respondent in connection with criminal case reference number: 20-9-00020-11. The second order is also an order to impose a provisional measure of arrest in a criminal case reference number: 20-2-00477-10.

5 At para. C of the EAW, particulars of the maximum length of sentence that may be imposed in respect of the offences for which the surrender of the respondent is sought are provided. These range from a maximum period of three years to a maximum period of eight years and accordingly minimum gravity is established in relation to each of the offences.

6 At the very beginning of the EAW, it is stated that the surrender of the respondent is required for the purposes of conducting a criminal prosecution. Accordingly, para. D of the EAW is not relevant in this application.

7 At para. E of the EAW, it is stated that the warrant relates to a total of eleven offences. These events are broken down into two groups under the reference numbers refers to in paragraph 4 above. There are eight offences within the first of these reference numbers (i.e. reference number: 20-9-00020-11) and three offences within the second reference number (i.e. 20-2-00477-10). The boxes relating to fraud and extortion have been ticked at para. E.I of the EAW, in relation to the eight offences dealt with under the first of these reference numbers, and so it is not necessary to prove correspondence in relation to the same. However, it is necessary to prove correspondence in relation to the remaining three offences.

8 There were two requests for additional information made of the IJA. The first of these was sent by letter of 21st August, 2019, by which confirmation was sought that the eleven offences were being dealt with by way of two separate criminal cases under the above reference numbers, and this was confirmed. The second request for information was by way of letter dated 24th February, 2020, after the filing of the notice of objection on behalf of the respondent, on 16th February, 2020. Three questions were asked in this second request:-

1. The IJA was asked to confirm that the respondent was sought for prosecution, in circumstances where para. F of the EAW refers to pre-trial investigation. In its reply of 26th February, 2020, the IJA stated as follows:

“1. In the Republic of Lithuania the criminal procedure is defined by the Criminal Procedure Code. It was approved by 14 March 2002 Law No. IX-7S5 and went into force on 1 May 2003. The said Code specifies the following procedural stages of the criminal prosecution: 1) pre-trial investigation; 2) trial procedure at the courts of first instance; 3) procedure of appeal; 4) enforcement of rulings and judgements; 5) procedure of cassation.

The criminal matters No. 20-2-00477-10 and No. 20-9-00020-11, in which the request for the surrender under EA W of Tomas Ziznevskis is made, are currently in the first stage of criminal procedure. In the Republic of Lithuania the said stage is referred to as the pre-trial investigation.”

2. Clarification was sought in relation to an offence described as “mental coercion” and the date or dates on which that offence was alleged to have been committed. The reply stated that the offence was alleged to have been committed on two separate occasions, one on 15th May 2010, when it is alleged that the respondent forced a person to sign a promissory note, and secondly, in June 2010, when the respondent used physical and mental coercion in the purported exercise of the right of another person in relation to the recovery of a debt. It is stated that one offence is charged, but it is made up of two dates when “different criminal elements of the same crime were committed”.

3 The IJA was asked to clarify why the EAW, which issued in January 2012, was not transmitted to Ireland until July 2019. This query was raised in light of one of the objections of the respondent, by which the respondent claims that his surrender is prohibited by reason of the culpable and blameworthy prosecutorial delay on the part of the authorities in Lithuania. In reply to this enquiry it is stated that the EAW was placed on the Schengen Information System on the same date that it was issued. However, it was not until 18th June, 2019 that the IJA became aware that the respondent resided in Ireland, and the EAW was sent here soon thereafter.

Points of Objection

9 As I mentioned above, points of objection were filed on behalf of the respondent on 16th February, 2020. Nine points of objection were raised. The objections, as pursued at the hearing of this application, were as follows:-

1. Throughout the EAW, the respondent is described as being a “suspect” in relation to the...