Minister for Justice & Equality v Poleliunas

• Jurisdiction: Ireland
• Judge: Denham C.J.,Clarke J.,MacMenamin J.
• Judgment Date: 23 June 2017
• Neutral Citation: [2017] IESCDET 70
• Court: Supreme Court
• Date: 23 June 2017

[2017] IESCDET 70

THE SUPREME COURT

DETERMINATION

Denham C.J.

Clarke J.

MacMenamin J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

AND IN THE MATTER OF VYTAUTAS POTELIUNAS (DOB 04th MAY 1982)

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT/RESPONDENT

AND

VYTAUTAS POTELIUNAS

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the applicant to appeal to this Court directly from the High Court.

REASONS GIVEN:

1 This is an application for leave to appeal to the Supreme Court from decisions of the High Court dated 3rd March, 2017 (the substantive decision), and a subsequent decision of the 16th March, 2017 (the certification decision). The application is made by Vytautas Poteliunas (‘the applicant’). The respondent will be referred to as ‘the Minister’. The application is for a ‘leapfrog appeal’ to this Court from a decision of the High Court (Donnelly J.), to the effect that the applicant be surrendered to the Republic of Lithuania. The points raised are very simple.

The Relevant Law

2 Section 21A of the European Arrest Warrant Act, 2003 provides under sub-section (1):

‘(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that the decision has not been made to charge the person with and try him or her for that offence in the issuing state.

Sub-section (2) contains a ‘presumption provision’ as follows:

(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with and try him or her with that offence in the issuing state, unless the contrary is proved.’ (Emphasis added)

3 Section 10 of the European Arrest Warrant Act, 2003 refers to such a warrant being issued in respect of a person ‘ against whom that state intends to bring proceedings’.

4 Article 1 of the Framework Decision of 2002 refers to the surrender of a person being sought for the ‘ purposes of conducting a criminal prosecution …’.

5 In the High Court, the applicant herein contended his surrender must be refused as no decision had been made to charge and try him. He relied upon a number of matters:

(a) That the declaration on the Arrest Warrant that he was wanted for the purposes of conducting a criminal prosecution was not decisive, and did not indicate that a decision had been made in Lithuania, the requesting state, to charge or try him.

(b) That he was referred to only as a ‘suspect’ in the European Arrest Warrant.

(c) That the European Arrest Warrant states that he had hidden from pre-trial investigation.

(d) That the European Arrest Warrant referred, at various stages, to ‘matters not being established’ in the pre-trial investigation stage.

(e) That the evidence from the applicant's Lithuanian lawyer showed that this was a case which was at the pre-trial stage only, and that he was a ‘suspect’, in the sense that the case was not closed due to pre-trial investigation.

6 As was pointed out by this Court in Minister for Justice v. Olsson [2011] 1 I.R. 384 (para. 32), the concept of the decision in s.21A is to be understood in the light of the ‘intention’ referred to in s.10 of the Act of 2003, and the ‘purpose’ referred to in Article 1 of the Framework Decision of 2002. (See the provisions cited earlier). This letter refers to the surrender of a requested person ‘ for the purpose of conducting a criminal prosecution or executing a custodial sentence, or detention order’. The creation of the presumption in s.21A therefore places a burden upon a person who seeks to have his surrender prohibited under the sub-section to rebut such presumption.

7 In the course of her judgment, the learned High Court judge pointed out that the interpretation of the law set out by this Court in Olsson was binding upon her. She held that, as set out by this Court in the extradition case of Attorney General v. Pocevicius [2015] IESC 59 (‘ Pocevicius’), care must be taken in using terms such as ‘investigation’, ‘suspect’, ‘accused’, which may have particular meanings for the purposes of extradition/surrender cases, which are distinct from meanings which might normally apply in a purely national context. The learned trial judge pointed out that because there was a presumption set out in s.21A(2) there would need to be cogent evidence that a decision had not been made to charge the person and try him for the offence before a court was required to refuse to surrender. The trial judge held that no sufficient evidence had been put before her to rebut the presumption contained in s.21A, sub-section (2). She held it was not...