Minister for Justice and Equality v Pagoje

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 27 July 2022
• Neutral Citation: [2022] IEHC 492
• Court: High Court
• Docket Number: [2020 No. 152 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Sandra Pagoje

Respondent

[2022] IEHC 492

[2020 No. 152 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 Lithuania 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 seeking an order for the surrender of the respondent, Mr Pagoje, to the Republic of Lithuania pursuant to a European arrest warrant dated 9th March, 2020 (the EAW). The EAW was issued by Mr Krusna, Chief Prosecutor of the Department for Criminal Prosecution of the Prosecutor General’s Office of the Republic of Lithuania, as the issuing judicial authority. The EAW sought the surrender of the respondent for the purposes of conducting a criminal prosecution in respect of four offences relating to participation in a criminal organisation, trafficking in human beings, illegal drug trafficking and money laundering. The respondent had a number of grounds of objection to surrender: (i) surrender in respect of the drug trafficking offence was precluded by reason of s. 44 of the European Arrest Warrant Act 2003, as amended, as the offences had been committed outside the territory of the issuing state and the requirements of s. 44 of the 2003 Act had not been met; (ii) sufficient particulars had not been furnished by the issuing state in order to comply with the requirements of s. 11(1A) of the 2003 Act; and (iii) surrender was precluded by reason of s. 37 of the 2003 Act due to the respondent’s personal and family circumstances.

Held by Burns J that he was satisfied that it was alleged that the narcotics offence specified in the EAW was committed in the issuing state as well as in Ireland and the United Kingdom. He held 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 s. 44. In such circumstances, Burns J dismissed the respondent’s objection to surrender grounded in s. 44. Burns J was satisfied that sufficient details had been furnished by the issuing judicial authority in accordance with s. 11(1A) of the 2003 Act. He was further satisfied that the absence of any further details other than those already provided in the EAW and in the additional information provided, would not result in any injustice caused to the respondent either in terms of contesting the application for surrender, or following surrender, adequately dealing with the case against him in the issuing state. Burns J was satisfied that the applicant’s personal circumstances were not so “truly exceptional” as to justify a refusal of surrender. Burns J dismissed the respondent’s objections to surrender based upon either delay or his right to a private and family life. Burns J was satisfied that surrender would not be incompatible with the obligations of the State and nor would it contravene any provision of the Constitution. Burns J dismissed the respondent’s objection that surrender was precluded by virtue of s. 37 of the 2003 Act.

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

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 27th day of July, 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 9th March, 2020 (“the EAW”). The EAW was issued by Mr. Tomas Krusna, Chief Prosecutor of the Department for Criminal Prosecution of the Prosecutor General's Office of the Republic of Lithuania, as the issuing judicial authority. The EAW seeks the surrender of the respondent for the purposes of conducting a criminal prosecution in respect of four offences relating to participation in a criminal organisation, trafficking in human beings, illegal drug trafficking and money laundering.

2 . The EAW was endorsed by the High Court on 13th July, 2020 and the respondent was arrested and brought before the High Court on 26th August, 2020.

3 . I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in this respect.

4 . 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. I note that the respondent maintained an objection to surrender on the basis that same was precluded by s. 21A of the Act of 2003, but in light of the judgment of the Supreme Court in The Minister for Justice and Equality v. Campbell [2022] IESC 21, this objection was withdrawn.

5 . I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. Each of the offences in respect of which surrender is sought carries a maximum penalty in excess of 12 months' imprisonment. Minimum gravity was not contested.

6 . At Part E of the EAW, a description is given of the circumstances in which the offences are alleged to have been committed. In essence, it is alleged that the respondent participated in a criminal organisation involved in trafficking human beings and the distribution of narcotics. It is alleged that the criminal organisation would target vulnerable people in Lithuania and traffic them to Ireland where they would be required by the criminal organisation to unlawfully deal in narcotics on behalf of the criminal organisation. Some members of the criminal organisation were in Lithuania while others were in Ireland and the UK.

7 . By virtue of s. 38(1)(b) of the Act of 2003, it is not necessary for the applicant to show correspondence between an offence in the EAW and an offence under Irish law where the offence in the EAW 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 and under the law of the issuing state, the offence is punishable by imprisonment for a maximum period of not less than 3 years. At Part E of the EAW it is certified that the offences referred to therein fall within Article 2.2. of the Framework Decision and are punishable with a maximum penalty of at least 3 years' imprisonment and the relevant boxes are ticked for “participation in a criminal organisation”, “trafficking in human beings”, “illicit trafficking in narcotic drugs and psychotropic substances” and “laundering of the proceeds of crime”. There is nothing in the EAW that gives rise to any ambiguity or perceived manifest error such as would justify this Court in looking behind the certification in the EAW. In any event, I am satisfied on reading the documentation before the Court that, if necessary, correspondence could be established between the offences in the EAW and offences under Irish law. No issue was raised in respect of correspondence.

8 . The respondent had a number of grounds of objection to surrender:-

• (i) Surrender in respect of the drug trafficking offence is precluded by reason of s. 44 of the Act of 2003 as the offences had been committed outside the territory of the issuing state and the requirements of s. 44 of the Act of 2003 had not been met;

• (ii) Sufficient particulars had not been furnished by the issuing state in order to comply with the requirements of s. 11(1A) of the Act of 2003;

• (iii) Surrender is precluded by reason of s. 37 of the Act of 2003 due to the respondent's personal and family circumstances;

• (iv) Surrender is precluded by reason of s. 37 of the Act of 2003 due to prison conditions in Lithuania (this objection was not maintained);

• (v) The EAW had not been issued by an issuing judicial authority within the meaning of the Act of 2003 or the Framework Decision (this objection was not maintained);

• (vi) Surrender is precluded by reason of s. 21A of the Act of 2003 as there had been no decision to charge and try the respondent with the offences at the time of the issue of the EAW (this objection was not maintained).

9 . The respondent swore an affidavit dated 25th November, 2020 in which she avers that she arrived in Ireland in November 2013, returned to Lithuania in January 2014 and has been living in Ireland since around March 2014. She states she has been in full-time residence in Ireland since early 2014. She avers that her 2-year-old son was put into the temporary care of the HSE/Tusla upon her arrest. She avers that one of the co-suspects in the investigation [J.R.] is in remand in custody in Lithuania and that pre-trial arrest has been extended although no charges have been preferred against her as yet. In a supplemental affidavit dated 26th January, 2021, the respondent avers that her husband [A.P.] died in custody on 1st January, 2021, possibly from a heart-related complaint. Her son was returned to her care on 31st August, 2020. She avers that she has no family who could assist with the care of her child. She avers that her husband's niece [G.J.] has been living with her since 1st September, 2020, is 18 years old and is hoping to begin third-level education in Autumn 2021. She avers that her son depends upon her for his care.

Section 44 of the Act of 2003

10 . Section 44 of the Act of 2003 provides as follows:-

“44.–A person shall not be surrendered under this Act if the offence specified in the relevant...