Minister for Justice and Equality v Danas Kairys

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 31 January 2022
• Neutral Citation: [2022] IEHC 57
• Docket Number: [2016 No. 97 EXT]
• Court: High Court

Between

Minister for Justice and Equality

Applicant

and

Danas Kairys

Respondent

[2022] IEHC 57

[2016 No. 97 EXT]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 31st day of January, 2022

1 By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Lithuania (“Lithuania”) pursuant to a European arrest warrant dated 2nd May, 2016 (“the EAW”). The EAW was issued by Sigitas Bagdonavicius, of the Panevezys Regional Court, as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent in order to enforce a sentence of 3 years and 7 months' imprisonment imposed upon the respondent on 16th April, 2015 and upheld on appeal on 23rd June, 2015, of which 3 years, 6 months and 28 days remain to be served.

3 The EAW was endorsed by the High Court on 13th June, 2016 and the respondent was arrested and brought before the High Court on 30th March, 2021 on foot of same.

4 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued.

5 I am 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 for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of 4 months' imprisonment.

7 It is clear from the EAW that the sentence of 3 years and 7 months' imprisonment imposed upon the respondent incorporates a number of previous sentences imposed on the respondent into a single sentence. At part D of the EAW, it is indicated that the respondent appeared in person at the trial resulting in the decision which is sought to be enforced. By way of additional information dated 24th May, 2016, the issuing judicial authority confirms that the respondent appeared in each trial that resulted in a sentence which was consequently combined with another sentence to constitute the sentence, the balance of which the respondent is sought to serve. In such circumstances, I am satisfied that no issue arises under s. 45 of the Act of 2003 and this was conceded by the respondent.

8 The EAW refers to 13 offences. As regards one of the offences, being an offence of unlawful possession of drugs supplied to another, the issuing judicial authority has certified that the offence is an offence to which Article 2.2. of the European 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, that same is punishable by a maximum penalty of at least 3 years' imprisonment and has indicated the appropriate box for “ illicit trafficking in narcotic drugs and psychotropic substances”. There is no manifest error or ambiguity in respect of the aforesaid certification such as would justify this Court in looking beyond same. In any event, I am satisfied that, if necessary, correspondence could be established between that offence and the offence in this State of unlawful possession of drugs for supply contrary to s. 15 of the Misuse of Drugs Act, 1977.

9 As regards the other 12 offences to which the EAW refers, I am satisfied that correspondence can be established between such offences and offences under the law of this State as follows:-

Correspondence was not contested.

• (i) Theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001;

• (ii) Theft;

• (iii) This offence is covered by Article 2.2. of the Framework Decision as indicated above;

• (iv) Theft;

• (v) Theft;

• (vi) Theft;

• (vii) Theft;

• (viii) Criminal damage contrary to s. 2 of the Criminal Damage Act, 1991;

• (ix) Perjury and/or perverting the course of justice contrary to common law;

• (x) Theft;

• (xi) Theft;

• (xii) Criminal damage; and

• (xiii) Assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997 and/or assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997.

10 The respondent initially objected to surrender on the grounds that same was precluded by reason of s. 37 of the Act of 2003 insofar as it would amount to exposing the respondent to a real risk of a breach of his fundamental rights and, in particular, his right pursuant to Article 3 of the European Convention on Human Rights (“the ECHR”) not to be subjected to inhuman or degrading treatment or punishment and his right to a private and family life pursuant to Article 8 ECHR.

11 The respondent swore an affidavit in which he acknowledges having committed the offences to which the EAW refers and admits that he fled Lithuania in 2014 to avoid imprisonment due to a fear on his part that he would be subjected to sexual and physical assault while in prison. He exhibits a number of reports from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Ombudsman's Office of Lithuania as well as the European Prison Rules. As regards his personal circumstances, he avers that in or about September 2016, he entered into a “marital type relationship” in the State with his partner, they have formed a family unit in the State and have two young children. He avers it is their intention to continue to live on a permanent basis as a family unit within the State. He avers that if he is surrendered to Lithuania, the family unit would be under severe pressure to survive and that his prospects of social rehabilitation would be greatly harmed by the break-up of the family unit.

12 The respondent's partner, Samata Beinarauskite, swore an affidavit on similar lines to that of the respondent as regards the family's circumstances. She says that if the respondent is required to serve a prison sentence in Lithuania, it would be difficult to arrange family visits. She suggests that the respondent should be allowed to serve his outstanding prison sentence in this State.

Prison Conditions

13 The High Court has considered prison conditions in Lithuania in a number of recent decisions including Minister for Justice and Equality v. Jarokovas [2021] IEHC 270, Minister for Justice and Equality v. Markauskas [2021] IEHC 90, Minister...