Minister for Justice, Equality and Law Reform v Desjatnikovs

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 10 October 2007
• Neutral Citation: [2007] IEHC 332
• Court: High Court
• Date: 10 October 2007

[2007] IEHC 332

THE HIGH COURT

Record Number: No.13 Ext/2007

Min for Justice v Desjatnikovs

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Ivans Desjatnikovs

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(b)

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 PART III

CRIMINAL LAW CHAPTER XVIII CRIMINAL OFFENCES AGAINST PROPERTY S179 (LATVIA)CRIMINAL LAW CHAPTER XVIII CRIMINAL OFFENCES AGAINST PROPERTY S179(2) (LATVIA)CRIMINAL LAW CHAPTER XVIII CRIMINAL OFFENCES AGAINST PROPERTY S179(3) (LATVIA)AG v BLAKE UNREP HIGH COURT 16.11.2006 (EX TEMPORE)

MIN JUSTICE v BRENNAN UNREP SUPREME 4.5.2007 2007 IESC 21

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) PREAMBLE

TREATY OF ROME ART 6

MIN JUSTICE v STAPLETON UNREP SUPREME 26.7.2007 2007 IESC 30

MISUSE OF DRUGS ACT 1977 S15(a)

EUROPEAN ARREST WARRANT ACT 2003 S5

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S3

OXFORD-DUDEN GERMAN - ENGLISH DICTIONARY 1997

OXFORD ITALIAN DICTIONARY 1997

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003)RECITAL 5

CRIMINAL LAW

Extradition

European arrest warrant - Correspondence - Whether correspondence of offences made out - Ingredient of dishonesty absent from offence in requesting state - Whether offence that for which correspondence not required under European arrest warrant - Whether respondent's constitutional rights would be breached if returned - Distinction between European arrest warrant and ordinary extradition procedures - Principle of mutual trust and recognition - European Arrest Warrant Act 2003 (No 45), ss 37 and 38 - Attorney General v Blake (Unrep, SC, 16/11/2006) distinguished, Minster for Justice v Brennan [2007] IESC 21 (Unrep, SC 4/5/2007) and Minister for Justice v Stapleton [2007] IESC 30 (Unrep, SC, 26/7/2007) considered - Order for surrender of respondent (2007/13EXT - Peart J - 10/10/2007) [2007] IEHC 332

Minister for Justice v Desjatnikovs

The applicant was arrested on foot of a European Arrest Warrant. This was the application under s. 16 of the European Arrest Warrant Act 2003, as amended, for his surrender to the requesting state.

Held by Peart J. in making the order sought under s. 16 that the offence in the issuing state was an offence which the Oireachtas intended should be the subject of a surrender order. Section 38(1)(b) of the Act of 2003 could be read as widening the range of offences for which surrender can be ordered.

Reporter: RW

1 Judgment of Mr Justice Michael Peart delivered on the 10th day of October 2007:

2 The European Arrest Warrant on foot of which the surrender of the respondent is sought was issued by a judicial authority in Riga, Latvia on the 7 ^th December 2005. It was in due course transmitted to this country and was endorsed by the High Court for execution on the 23 ^rd January 2007. The respondent was duly arrested on foot of same on the 31 ^st January 2007 and brought before the High Court as required by the provisions of s. 13 of the European Arrest Warrant Act 2003, as amended ("the Act"). He was thereafter remanded from time to time pending the hearing and determination of the application under s. 16 of the Act for his surrender to the requesting state.

3 The Court must be satisfied firstly for the purpose of s. 10 of the Act that a decision has been made in the requesting state that the respondent be prosecuted for the offence referred to in the warrant. Kieran Kelly BL has sought to rely on some apparent ambiguity in this regard derived from the wording appearing on front cover page of the warrant as translated. This paragraph requests that the respondent be arrested and surrendered " for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order". This is in fact precisely the wording which appears in the prescribed form of warrant in the Framework Decision itself which is annexed to the Act. In many instances the requesting authority will have deleted the alternative which does not apply, but in the present case this has not been done, and Mr Kelly seeks to show that it is not clear that the respondent has not in fact already been convicted on the offence, and if such be the case then no undertaking has been provided by the requesting state in order to satisfy the provisions of s. 45 of the Act. In support of this submission Mr Kelly refers also to the contents of a letter from the respondent's solicitor to the requesting authority and the response to that letter and submits that it is not at all clear what the position is as to the number of offences being charged or whether he is already convicted. Without setting out the contents of that correspondence in detail, the response from the Latvian prosecutor's office makes it completely clear that the respondent's surrender is sought so that he can be prosecuted for the offence set forth in the warrant in spite of the respondent's suggestion in that correspondence that it was a purely civil matter. It is clear that there has been no conviction for the offence to be prosecuted in spite of a reference in translation to the prosecutor being satisfied that his guilt is proved. To interpret this as meaning only that he has been convicted is going too far. It is clear from the overall context that this must mean simply that the prosecutor is satisfied that there is sufficient evidence against the respondent to prosecute him. The merits of the criminal allegation is not a matter upon which this Court may express a view. There is a suggestion also in that correspondence that the requesting state may also wish to charge the respondent with another offence not the subject of the warrant. In such a situation the specialty provisions of the Framework Decision will be applicable and there can be no presumption that the Latvian authorities will not comply with its obligations in that regard, given the basis of mutual trust and confidence between member States which underpins the Framework Decision. This point of objection must fail.

4 Under s. 16 the court must be satisfied also that the person arrested and brought before the Court is the person in respect of whom the warrant has been issued, and that the warrant has been endorsed for execution prior to arrest. The Court is satisfied in these respects and no such issue has been raised by the respondent in any event, save that it has been submitted that there has been a delay between the issue of the warrant in the requesting state and its endorsement by the High Court here. But in this latter respect I am satisfied that the warrant was endorsed "as soon as may be" after its receipt in this State. Any delay prior to its receipt is not a matter which will of itself invalidate the warrant or the execution of it following endorsement.

5 No undertaking is required under s. 45 of the Act.

6 The Court is satisfied also that it is not required to refuse to order surrender under sections 21A, 22, 23 or 24 of the Act.

7 Since the offence referred to in the warrant has not been marked by the requesting authority as coining within the listed categories of offence in Article 2.2 of the Framework Decision, it is an offence in which correspondence/double criminality must be verified, or otherwise come within the meaning to be given to s. 38(1)(b) of the Act.

8 Subject to dealing with the remaining submissions of the respondent in respect of section 37 and section 38 of the Act, the Court is satisfied that there is no reason under Part III of the Act or the Framework Decision why the respondent's surrender is prohibited.

9 The remaining issues raised by the respondent relate to correspondence and to the fact that warrant states a certain minimum sentence which the respondent will face if convicted after surrender has taken place. The latter is said to constitute a breach of the respondent's constitutional rights.

Minimum Sentence:

10 The respondent has referred the court to the part of the warrant which sets out the nature of the sentence which the respondent will face if convicted of the offence in question if surrendered and he submits that the mandatory minimum nature of the sentence lacks proportionality and is therefore a breach of the respondent's rights under the Constitution, and that his surrender is therefore prohibited by virtue of the provisions of s. 37 of the Act.

11 Before referring to some of the case-law to which the Court has been referred I will refer to the sentencing provisions as appearing in the warrant for the offence in question. It appears that under Section 179 of the Criminal Law of Latvia (Criminal Offences against Property), a person who acquires or wastes property of another the applicable sentence on conviction is one "not exceeding five years, or community service or a fine not exceeding fifty times the convicted person's minimum monthly wage. Subsection (2) is said to provide for a repeat offender of such an offence and it is provided that such a person, if convicted, will receive a sentence of " not less than three years and not exceeding eight years, with or without confiscation of property." Subsection (3) provides that where misappropriation occurs "on a large scale" or is related to certain substances including drugs,...