Minister for Justice and Equality v Velicko

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 16 December 2020
• Neutral Citation: [2020] IEHC 694
• Docket Number: [2020 No. 157 EXT.]
• Court: High Court
• Date: 16 December 2020

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

VĒSMA VEĻIČKO

RESPONDENT

[2020] IEHC 694

Paul Burns

[2020 No. 157 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 44 – Applicant seeking an order for the surrender of the respondent to the Republic of Latvia pursuant to a European arrest warrant – Whether surrender was precluded by reason of s. 44 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court pursuant to the European Arrest Warrant Act 2003, as amended, seeking an order for the surrender of the respondent, Ms Veļičko, to the Republic of Latvia on foot of a European arrest warrant dated 27th May, 2008 (the EAW) issued by Mr Kalniņš of the Office of the Prosecutor General of the Republic of Latvia as the issuing authority. The surrender of the respondent was sought to prosecute her in respect of three offences, one alleged offence relating to the arrangement of sham marriages in order to facilitate illegal entry or residence within the European Union and two alleged offences of human trafficking. Counsel for the respondent indicated at the hearing of this matter that there were two grounds of objection to surrender being pursued as follows: (i) that the EAW did not adequately set out the particulars required by s. 11(1A) of the 2003 Act; and (ii) that surrender was precluded by reason of s. 44 of the 2003 Act.

Held by Burns J that the EAW adequately set out the matters required by s. 11(1A) of the 2003 Act and that there was no significant lack of clarity therein; the respondent’s surrender was sought to face prosecution for three offences only, and sufficient particulars thereof had been set out to allow the respondent to know what was alleged against her, the potential penalties she faced and such information as she might require for the purposes of the rule of specialty. Burns J held that, as regards each of the three offences referred to in the EAW, some of the acts alleged to constitute each offence were committed in Latvia and it was therefore not alleged that the offences took place in a place other than the issuing state; it follows that the respondent had failed to satisfy the first requirement of s. 44 of the 2003 Act, and as the two requirements of the section are conjunctive, the respondent had failed to meet the conditions set out in the section. Burns J held that, in such circumstances, s. 44 of the 2003 Act did not arise for consideration and he dismissed the respondent’s objection in that regard.

Burns J held that, having dismissed the respondent’s objections, the Court would make an order pursuant to s. 16(1) of the 2003 Act for the surrender of the respondent to Latvia.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 16th day of December, 2020

1 By an application pursuant to the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), the applicant seeks an order for the surrender of the respondent to the Republic of Latvia (“Latvia”) on foot of a European arrest warrant dated 27th May, 2008 (“the EAW”) issued by Mr. K. Kalniņš of the Office of the Prosecutor General of the Republic of Latvia (“the Prosecutor General's Office”) as the issuing authority. The surrender of the respondent is sought to prosecute her in respect of three offences, one alleged offence relating to the arrangement of sham marriages in order to facilitate illegal entry or residence within the European Union (“the EU”) and two alleged offences of human trafficking.

2 The EAW was endorsed by the High Court on 20th July, 2020. The respondent was arrested and brought before the High Court on 29th September, 2020.

3 I am satisfied that the person before the Court is the person in respect of whom the EAW was issued and no issue was taken in respect of this.

4 I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the Act of 2003 arise and that the surrender of the respondent is not prohibited for the reasons set forth therein. No issue was taken in respect of those sections.

5 I am satisfied that the minimum gravity requirements as set out in the Act of 2003 are met as the offences in question carry maximum terms of 12 years’, 15 years’ and 5 years’ imprisonment, respectively.

6 At part (e) of the EAW, the issuing authority has certified that each of the offences carries a maximum penalty of at least 3 years’ detention and has ticked the relevant boxes for “trafficking in human beings” and “facilitation of unauthorized entry and residence”. This indicates that article 2(2) of 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”), applies to the offences so that by virtue of s. 38(1)(b) of the Act of 2003, it is not necessary for the applicant to establish correspondence between the offences referred to in the EAW and any offence under the law of Ireland. I am satisfied that there is no reason to believe that the said certification is in error, and so there is no need for the applicant to establish correspondence. No issue was taken in respect of this certification and in any event I am satisfied that, if necessary, correspondence could be established.

7 Counsel for the respondent indicated at the hearing of this matter that there were two grounds of objection to surrender being pursued as follows:-

(i) that the EAW did not adequately set out the particulars required by s. 11(1A) of the Act of 2003; and

(ii) that surrender was precluded by reason of s. 44 of the Act of 2003.

Section 11 of the Act of 2003

8 The three offences in respect of which surrender is sought are set out at part (e) of the EAW which states:-

“This warrant relates to in total: 3 (three) offences.”

The offences are stated to be:-

“1) Vēsma Veļičko in the group of persons with covetous purpose committed malicious ensuring for person a possibility to acquire legally the right to reside in the Republic of Latvia, other Member State of the European Union, Member State of the European Economic Area or Swiss Confederation, and such a possibility was ensured for two or more persons. … By her actions Vēsma Veļičko committed the criminal offence provided for by the Section 2852(2) of the Criminal Law.

2) Vēsma Veļičko committed the human trafficking in the group of persons pursuant to prior agreement, …. By her actions Vēsma Veļičko committed the criminal offence provided for by the Section 1541(2) of the Criminal Law.

3) Vēsma Veļičko committed the human trafficking in the organized group, …. By her actions Vēsma Veļičko committed the criminal offence provided for by the Section 1541(3) of the Criminal Law.”

Within each such statement, a lengthy and detailed description of each of the offences was set out.

9 Counsel for the respondent submitted that there was an unacceptable lack of clarity in the description of the offences. In particular, he submitted that offence 1) appeared to consist of five separate allegations of wrongdoing involving different allegations of fact, including different timeframes, different persons and different sums. He submitted that it was not clear if the respondent was in fact being prosecuted for five separate offences in this regard so that she would face five different sentences in respect of offence 1). The Court was referred to the Supreme Court decision in Minister for Justice, Equality and Law Reform v. Connolly [2014] IESC 34, [2014] 1 IR 720 as well as the High Court decisions in Minister for Justice and Equality v. Sevik [2017] IEHC 421 and Minister for Justice and Equality v. Pozgay [2020] IEHC 17. The last of these authorities is most apposite as it relates to a matter where the European arrest warrant referred to two offences but one of those offences appeared to consist of twelve separate incidents of wrongdoing. In that case, the court sought additional information and was assured by the issuing judicial authority that there were only two offences to be prosecuted.

10 From experience in dealing with European arrest warrants, the Court is aware that in several member states, a process exists whereby several offences of a similar nature committed within a certain timeframe may be prosecuted as a single offence and that upon conviction, a single sentence is handed down in respect of same. However, for the purposes of clarity the Court sought additional information in this regard and by reply dated 17th November, 2020, the issuing authority confirmed that the respondent was only to be prosecuted in respect of three offences and that the alleged offence under s. 2852(2) of the Criminal Law was being treated as one continued criminal offence in respect of which only one sentence may be imposed.

11 I am satisfied that the EAW adequately sets out the matters required by s. 11(1A) of the Act of 2003 and that there is no significant lack of clarity therein. The respondent's surrender is sought to face prosecution for three offences only, and sufficient...