Minister for Justice and Equality v Smits

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 14 July 2020
• Neutral Citation: [2020] IEHC 389
• Docket Number: RECORD NUMBER 2018/136 EXT
• Court: High Court
• Date: 14 July 2020

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

IVO SMITS

RESPONDENT

[2020] IEHC 389

Paul Burns

RECORD NUMBER 2018/136 EXT

THE HIGH COURT

Judgment of Mr. Justice Paul Burns delivered on 14th July, 2020.

1 By this application, the applicant seeks an order for the surrender of the respondent to The Republic of Latvia (“Latvia”) pursuant to a European arrest warrant (“the warrant”) dated 8th June, 2015, issued by the Prosecutor General's Office of the Republic of Latvia (“the Prosecutor General's Office”) as the issuing judicial authority. The surrender of the respondent is sought for the purpose of serving a sentence of 2 years’ imprisonment less time in custody from 15th January, 2008 to 16th January, 2008 (two days).

2 The warrant was endorsed by the High Court on 30th April, 2020 and the respondent was arrested and brought before this Court 13th July, 2020.

3 I am satisfied that the person before the Court is the person in respect of whom the warrant was issued. This was not put in issue by the respondent.

4 I am further satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003, as amended (“the Act of 2003”), arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

5 I am satisfied that correspondence exists between the offences in respect of which the sentence was imposed and offences under Irish law and no issue was taken by the respondent in that regard.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 are met. The term of imprisonment in respect of which the respondent's surrender is sought is in excess of four months.

7 The respondent delivered points of objection dated 10th September, 2018 which listed a large number of grounds. At hearing, Counsel for the respondent pursued three grounds of objection which can be summarised as follows:-

(a) there was a lack of effective judicial involvement or protection in respect of the issuing of the warrant;

(b) surrender was prohibited by s. 37 of the Act of 2003 as it would involve a breach of the respondent's rights under article 8 of the European Convention on Human Rights (“the Convention”); and

(c) surrender was prohibited by s. 37 of the Act of 2003 as it would involve a breach of the respondent's rights under article 6 of the Convention.

The submissions on behalf of the respondent interlinked these objections, particularly with reference to article 8 rights under the Convention being referenced in respect of objections (a) and (b) above.

Issuing of the European Arrest Warrant

8 Counsel for the respondent submitted that the warrant was issued by the Prosecutor General's Office and, on its face, did not indicate any judicial oversight in respect of its issue. Reliance was placed upon the decision of the Court of Justice of the European Union (“the CJEU”) in PF ( Case C-509/18), 27th May, 2019 as well as the decision of the High Court in Minister for Justice and Equality v. Lisauskas [2020] IEHC 121. It was submitted that on foot of those cases, where the warrant was not issued by a judge, in order to meet the necessary criteria of an issuing judicial authority, an entity such as the Prosecutor General's Office had to be both independent of the executive and subject to judicial oversight, such as by way of right to an appeal to a judge regarding the issuing of the warrant. He submitted that it was important that the issue of the warrant be proportionate and that the assessment of proportionality should be subject to judicial input or oversight. Counsel for the respondent conceded that where the warrant was issued simultaneously or almost immediately after the issue of a national arrest warrant by a judge, then there is little risk that the assessment of proportionality would be out of date, but if the warrant was issued long after the national arrest warrant, the proportionality assessment originally made by the Court could have become obsolete and the circumstances arising subsequently may be sufficient to warrant its amendment or revocation. In this regard, he relied upon the opinion of the Advocate General in JR and YC (Joined Cases C-566/19 and C-626/19), 12th December, 2019 which, at para. 80 thereof, contained a statement to that effect. Counsel did however concede that this aspect of the Advocate General's opinion did not appear to have been expressly adopted by the CJEU in its decision.

9 The respondent relied upon a report from a Latvian lawyer, Jelena Kvjatkovska, to the effect that under Latvian law, it is not possible to review or appeal to a court a decision taken by the Prosecutor General's Office to issue a European arrest warrant.

10 Counsel for the respondent accepted that, on first reading, the decision of the CJEU in ZB ( Case C-627/19 PPU), 12th December, 2019 appeared to be against him insofar as it seemed to decide that in cases where surrender is sought on foot of a European arrest warrant for the purposes of serving a sentence, as opposed to prosecution for an offence, it is not necessary that there be a separate judicial remedy in respect of the issuing of the European arrest warrant by an authority which is not itself a court. However, he sought to distinguish or limit the reasoning of the CJEU in ZB to cases where the requested person had been brought before a court in the executing member state within a short period of the imposition of the sentence of imprisonment and the issuing of the European arrest warrant. In the present case, the respondent had been sentenced to a two-year term of imprisonment on 29th May, 2008 which was suspended in its entirety but which was activated on 20th October, 2008 due to a breach of the conditions of the suspended sentence. The activation of the suspended sentence was appealed but the appeal court affirmed the activation on 17th December, 2008. Thus, the national arrest warrant was issued and affirmed on appeal in December 2008, but the European arrest warrant was not issued until 8th June, 2015 and the respondent was not arrested until 13th July, 2018.

11 It was submitted that whatever proportionality assessment took place in 2008 when the national arrest warrant was issued, the respondent's circumstances had changed in the interim and a further proportionality assessment should have been made when the European arrest warrant was issued in 2015. It was further submitted that even if one assumed that a proportionality assessment had taken place in 2015, the respondent's circumstances had changed between 2015 and 2018, and in particular the respondent had married an Irish national in Ireland and established a family life here, so that a further proportionality assessment was necessary at the time of execution of the warrant. It was submitted that as there was no right of review or appeal of the decision to issue the European arrest warrant before the Latvian courts upon the respondent's surrender, there was a lack of effective judicial supervision as required under the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States, as amended (“the Framework Decision”), and that surrender should be refused.

12 Counsel for the applicant submitted that public prosecutors are competent to issue European arrest warrants once a legal framework is in place; (a) to prevent the risk of prosecutors being subjected to individual instructions from the executive, and (b) to ensure there is effective judicial protection in consideration of the necessity and proportionality of issuing the European arrest warrant. He relied upon the decisions of the CJEU in PF, and also in OG and PI (Joined Cases C-508/18 and C-82/19), 27th May, 2019. He also relied upon the decision of the High Court in Lisauskas. It was further submitted that the CJEU held in JR and YC that effective judicial protection was ensured where the judge who issued the national arrest warrant also requested the Public Prosecutor to issue a European arrest warrant at the same time or subsequently. It was submitted that at this point in the procedure, the judge assessed that the conditions for issuing the European arrest warrant were met, including its proportionality.

13 It was submitted on behalf of the applicant that effective judicial protection was ensured despite the lack of a mechanism to appeal the decision to issue the warrant. It was pointed out that in the present case, additional information received from the issuing member state dated 17th May, 2019 indicated that the Prosecutor General's Office had issued the European arrest warrant on foot of a proposal from the Court. It stated:-

“On 17 April 2015, the court provided the Prosecutor General's Office of the Republic of Latvia (hereinafter referred to as – the Prosecutor General's Office) with the proposal on the issuance of European arrest warrant in respect of I, Šmits.”

14 In light of this, it was submitted that there had been judicial input into the issuing of the warrant in such manner, and at such time as to meet the requirements for effective judicial protection and judicial oversight as set out in JR and YC.

15 Counsel on behalf of the applicant also submitted that there was an important distinction to be drawn between European arrest warrants seeking surrender for the purposes of prosecution and European arrest warrants seeking surrender for the purposes of serving a sentence. It was submitted that on foot of the decision of the CJEU in ZB, in cases seeking surrender for the purposes of serving a sentence, it was not necessary that there be a separate judicial remedy against the decision of a non-judicial authority to issue a European arrest warrant and that the question of proportionality was answered by a demonstration that the minimum gravity requirement had been met by the sentence of not...