Minister for Justice, Equality and Law Reform v Raustys

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 31 October 2007
• Neutral Citation: [2007] IEHC 370
• Docket Number: Record Number: No. 67 Ext./2007
• Court: High Court
• Date: 31 October 2007

[2007] IEHC 370

THE HIGH COURT

Record Number: No. 67 Ext./2007

Min for Justice v Raustys

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Arturas Raustys

Respondent

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001

MISUSE OF DRUGS ACT 1977

MISUSE OF DRUGS ACT 1984

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN ARREST WARRANT ACT 2003 S37

CONSTITUTION OF THE REPUBLIC OF LITHUANIA

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA CHAPTER 5

MIN JUSTICE v BUSJEVA UNREP PEART 27.3.2007 2007 IEHC 341

FINUCANE v MCMAHON 1990 IR 165 1990 DULJ 127

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(c)(iii)

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

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN ARREST WARRANT ACT 2003 S3

MIN JUSTICE v STAPLETON UNREP SUPREME 26.7.2007 2007 IESC 30

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL PARA 10

CRIMINAL LAW

Extradition

European arrest warrant - Request for surrender - Point of objection - Previous assault by police - Whether reasonable grounds for believing respondent will be subjected to ill-treatment if surrendered - Onus on respondent - Standard of proof - Probability - Credibility of evidence - Corroboration of averments - Mutual trust and confidence between Member States - European Arrest Warrant Act 2003 (No 45), s 37 - Minister for Justice, Equality and Law Reform v Busjeva [2007] IEHC 341, (Unrep, Peart J, 27/3/2007), Finucane v McMahon [1990] IR 165 and Minister for Justice, Equality and Law Reform v Stapleton [2007] IESC 30, (Unrep, SC, 26/7/2007) considered - Surrender ordered (2007/67Ext - Peart J - 31/10/2007) [2007] IEHC 370

Minister for Justice, Equality and Law Reform v Raustys

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought by the Lithuanian authorities on foot of a European arrest warrant dated 6th March 2007, which, having been endorsed by the High Court was executed by the arrest of the respondent on the 17th April 2007.

2 The respondent's surrender is sought on foot of that warrant so that he can be returned in order to face prosecution there on charges of robbery and of simple possession of drugs. I am satisfied that the facts giving rise to these alleged offences as set forth in the warrant would give rise to corresponding offences in this State under the Criminal Justice (Theft and Fraud Offences) Act,2001 and the Misuse of Drugs Acts respectively. No issue is raised as to correspondence. Each offence referred to in the warrant satisfies the minimum gravity requirement, namely that it is punishable in the issuing state by a maximum period of imprisonment of not less than twelve months.

3 I am satisfied that the respondent is the person in respect of whom this European arrest warrant has been issued, and, again, no issue has been raised by the respondent as to his identity.

4 No undertaking is required under s. 45 of the European Arrest Warrant Act,2003, as amended since this is not a case in which there has been any trial or sentence in absentia.

5 I am satisfied that there is no reason to refuse to order his surrender by virtue of anything in sections 21A, 22, 23 or 24 of the Act, and, subject to dealing with the point of objection raised by the respondent as to the treatment which he says that he can expect if surrendered to the issuing state, I am satisfied that his surrender is not prohibited by any provision of Part III of the Act, or the Framework decision itself.

6 The possession of drugs offence is said to have been committed by the respondent in June 2001. The other stealing charge is said to have been committed at 7pm on the 31st December 2001. On that occasion he and another man are said to have entered a general store, where after his companion violently assaulted a woman working there, the respondent then stole money and cigarettes. By way of Point of Objection, the respondent pleads that his surrender would constitute a breach of Article 40.3 of the Constitution, Article 3 of the European Convention on Human Rights, section 2 of the European Convention on Human Rights Act,2003, and section 37 of the European Arrest Warrant Act, 2003, as amended, in that the respondent if surrendered would be subjected to torture or to inhuman or degrading treatment or punishment.

7 In this regard he believes that his previous experiences at the hands of the Lithuanian police in the immediate aftermath of his arrest following the alleged theft offence on the 31st December 2001 makes it sufficiently probable that, if surrendered he will again be in the hands of the same police officers who, he says, beat him up on that occasion and for which he was hospitalised. The details of this background are set forth in his affidavit. He says therein that he came to this State in April 2002 and that he has lived in Dublin since that date. He has been employed in a number of different jobs during this time, and has not been convicted of any offences while in this country.

8 At paragraph 8 of his affidavit he states that he was arrested by the Lithuanian police on the 31st December 2001 in relation to the allegations contained in the warrant. He says that he was detained in Mazejkiai police station until the evening of the 1st January 2002 during which time he says he was beaten severely and repeatedly to the head and body by two police officers, including with police batons. He goes on to say that the store from which he is alleged to have stolen the cash and cigarettes is one that was owned by the mother of one of these police officers, and that he was brought by him to that store on the 1st January 2002 where he was beaten outside the store and was told that if he paid up a sum of $10,000 no charges would be brought against him.

9 He states also that as a result of these beatings he admitted himself to a hospital on the 1st January 2002 and that he remained there until the 5th January 2002. He was treated for an abrasion to his head measuring four centimetres by a half a centimetre, and for bruising to his neck, shoulder, chest, thigh and shin. He has exhibited what purports to be a record from the hospital of his stay there from the 1st to the 5th January 2002, and a translation of that document. I will return to this document in due course.

10 He goes on in his first affidavit to state that upon his discharge from hospital he made a written complaint about the treatment which he had received at the hands of the police, but says that he received no response to that letter of complaint. He cannot produce any copy of that letter written by him.

11 In his second supplemental affidavit he has exhibited an extract from his medical history which he has obtained from the head of the public hospital where he was treated for these injuries. His solicitor requested this report for him, as well as an opinion from that person as to whether these injuries were consistent with a physical assault. That report/extract states at the outset that having been brought to the hospital by ambulance at 12.10pm on the 1st January 2001"on arrival the patient told that on the night of 31.12.2001 and around 4am on 01.01.2002 he was assaulted by several men". This report makes no mention of the respondent reporting that he had been beaten by policemen. However it states at the end of the report that the assault on the respondent is being investigated by the police. It is not clear from that document how the author of this document has been made aware of that fact, though he states that "after the patient was brought to Mazeikiai hospital the police in Mazeikiai was notified of the alleged incident". He does not state who made that report to the police. He goes on in the document to confirm that these injuries could have been sustained during an assault, and that the wound to the respondent's head referred to therein "was most likely caused by an assault".

12 The Prosecutor General's office in Lithuania has, in answer to a letter from the applicant in this case, written a letter dated 13th August 2007 in which she states that there is a provision in the Lithuanian Constitution and the Criminal Procedure Law and other legal instruments whereby a person has the right to make a complaint against police officers in respect of ill-treatment or abuse of their official position as police officers. She states also that there is no record of any complaint made by the respondent in this case and she cannot comment on them accordingly. She then refers to Chapter 5 of the Code of Criminal Procedure which regulates complaints in relation to pre-trial investigations. She describes in some detail how that complaints' procedure works.

13 The fact that the Prosecutor General's office has stated that there is no record of a complaint having been made in this case tends to contradict what is stated by the respondent that he made a written complaint to the police about ten days following what is stated in the affidavit to be his release from custody. It also contrary to what is stated in the report from the hospital, but, as I have stated already, it is unclear whether the head of the hospital is saying that the hospital itself notified the police of the alleged incident or whether it means that the hospital was told by the respondent that he was reporting the incident to the police.

14 At any rate, the respondent believes that if he is returned to...