Minister for Justice and Equality v Mecius

JurisdictionIreland
JudgeMr. Justice Paul Burns
Judgment Date25 July 2022
Neutral Citation[2022] IEHC 491
CourtHigh Court
Docket Number[2020 No. 145 EXT.]
Between
Minister for Justice and Equality
Applicant
and
Aurimas Mecius
Respondent

[2022] IEHC 491

[2020 No. 145 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 Mecius, 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 three offences relating to participation in a criminal organisation, trafficking in human beings and illegal drug trafficking. 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 offence had been committed outside the territory of the issuing state and the requirements of s. 44 of the 2003 Act had not been met; and (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.

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 of the 2003 Act. In such circumstances, Burns J dismissed the respondent’s objection to surrender grounded in s. 44 of the 2003 Act. 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 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 25th 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 3 offences relating to participation in a criminal organisation, trafficking in human beings and illegal drug trafficking.

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 in light of the Supreme Court judgment in Minister for Justice and Equality v Campbell [2022] IESC 21, an objection grounded in s. 21A of the Act of 2003 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” and “illicit trafficking in narcotic drugs and psychotropic substances”. 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 offence 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) The EAW had not been issued by an issuing judicial authority within the meaning of the Act of 2003 or the Framework Decision (not maintained);

  • (iv) 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); and

  • (v) Surrender is precluded by reason of s. 37 of the Act of 2003 due to prison conditions in Lithuania – (not maintained).

Section 44 of the Act of 2003
9

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

“A person shall not be surrendered under this Act if the offence specified in the relevant arrest warrant issued in respect of him or her was committed or is alleged to have been committed in a place other than the issuing state and the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State.”

10

. It is, by now, well-established jurisprudence that s. 44 of the Act of 2003 sets out a 2-part test for determining whether surrender is precluded by virtue of that section. Firstly, it must be established that the offence specified in the European arrest warrant was committed or is alleged to have been committed in a place other than the issuing state. Secondly, it must be established that the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State. In Minister for Justice and Equality v. Trust Egharevba [2015] IESC 55, at para. 15 of her judgment, Denham C.J. stated:-

“15. The requirements set out in s. 44 of the Act of 2003, as amended, are conjunctive. Thus, both conditions are required to be met for the appellant to succeed.”

11

. It is noteworthy that the wording of s. 44 of the Act of 2003 refers to “was committed or is alleged to have been committed”. This envisages 2 separate concepts, namely that of “was committed” and that of “is alleged to have been committed”. The reference to “was committed” reflects the fact that a European arrest warrant may be issued in respect of a person who has already been convicted for the offence in question and, therefore, the relevant facts relating to the commission of the offence have been judicially determined including the location thereof. The reference to “is alleged to have been committed” reflects the fact that surrender may be sought in order for the person to be tried in respect of an alleged offence where it has not yet been judicially determined whether the offence was actually committed, including the location thereof and, thus, the relevant criteria is where the offence is ...

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