Minister for Justice Equality and Law Reform v L G

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 07 October 2005
• Neutral Citation: [2005] IEHC 310
• Docket Number: Record Number:No: 37 Ext/2005
• Court: High Court
• Date: 07 October 2005

[2005] IEHC 310

THE HIGH COURT

Record Number:No: 37 Ext/2005

MIN FOR JUSTICE v G (L)

BETWEEN:

Minister for Justice, Equality and Law Reform

Applicant

And

LG

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S21A

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S4

EUROPEAN ARREST WARRANT ACT 2003 S13(1)

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL JUSTICE (THEFT & FRAUD)

OFFENCES ACT 2001 S25CRIMINAL JUSTICE (THEFT & FRAUD)

OFFENCES ACT 2001 S30

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S30(1)

AG v FAY UNREP PEART 22.7.2003 2003/4/652

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S30(2)

EUROPEAN ARREST WARRANT ACT 2003 S16(1)(d)

EUROPEAN ARREST WARRANT ACT 2003 S21A(1)

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

CRIMINAL LAW

Extradition

European arrest warrant -Decision to try - Presumption - Whether as soon as may be - Whether delay in application for endorsement - Whether decision made to charge and try - Whether presumption rebutted - European Arrest Warrant Act 2003 (No 45), ss 13,16 and 21A - Surrender of respondent refused (2005/37EXT - Peart - 7/10/2005) [2005] IEHC 310

MIN FOR JUSTICE v G (L)

Mr Justice Michael Peart

1 This is an application which came before me yesterday under Section 16(1) of the European Arrest Warrant Act,2003, as amended ("the Act"), for an order for the surrender of the respondent to the Lithuanian authorities in relation to two charges described in the European Arrest Warrant (as translated into the English language) ("the warrant") issued by a judicial authority in Lithuania on the 28th February 2005 as "misappropriation of property" and "Forgery of an Official Document or Use or Sale of a Forged Document".

2 The warrant issued herein by the said judicial authority is dated the 28th February 2005, but was not ordered by this Court to be endorsed in accordance with Section 11 of the Act until an application in that regard was made to the Court on the 5th day of August 2005. There is no information before this Court as to why that delay of five months in bringing that application occurred.

3 Following that endorsement for execution, the respondent was arrested in this State on foot of same on the 10th August 2005, and brought before this Court on the following day, the 11th August 2005, when he was remanded to await the hearing of this application.

4 Under s. 16(1) of the Act, this Court may make the order sought in this case provided it is satisfied as to a number of matters set out in that section, namely:

5 2 (a) that the person before the Court is the person in respect of whom the warrant was issued;

6 3 (b) the warrant has been endorsed in accordance with section 13 of the Act for execution;

7 4 (c) where appropriate (i.e. in cases of a conviction/sentence imposed in absentia) an undertaking as required by section 45 of the Act;

8 5 (d) that the Court is not required to refuse to surrender the respondent under sections 21A, 22, 23 or 24 of the Act;

9 6 (e) that the surrender of the respondent is not prohibited by Part III of the Act, or the Framework Decision annexed thereto.

10 In addition the Court must be satisfied in relation to correspondence of the offences charged, and that the offences referred to in the warrant would carry in Lithuania a penalty of the required minimum gravity, namely a maximum term of imprisonment of not less than twelve months, and also, as required by section 21A of the Act (as inserted), that a decision has been made by the Lithuanian authorities to charge and try the respondent with the offences specified in the warrant.

11 Ms. Melanie Greally BL on behalf of the applicant has, in presenting this application, submitted that all of these requirements are met in this case. Mr Kieran Kelly BL for the respondent has conceded that no issue is raised in relation to the arrest or identification of the respondent, and further that no issue is taken regarding the question of correspondence of the first offence stated in the warrant, namely the misappropriation of property. He rightly and fairly accepts, and the Court agrees, that the act as appearing in the warrant in this regard would if committed in this State give rise to an offence under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act,2001. He raises no point either in relation to the undertaking referred to above at (c) above, since this is not a case in which there has been any conviction or sentence in absentia.

12 Mr Kelly raises four points of objection.

13 Firstly, he submits that the requirements of the Act have not been complied with regarding the endorsement of the warrant by order of this Court on the 5th August 2005, and that before this Court can grant the order sought it must be so satisfied. He points to the fact that the warrant is dated 28th February 2005, and that no application for its endorsement was made until the 5th August 2005, and that accordingly, and in the absence of no explanation for the delay in so doing since the 28th February 2005, it has not been endorsed as soon as practicable, as required. In this regard he also refers to the fact that in the Framework Decision annexed to the Act, reference is made to the objective of removing delays from the extradition process - for example paragraph 5 of the Preamble to the Framework Decision. He submits that the gap of five months which elapsed has not been explained and therefore, in spite of the fact that the Court on the 5th August 2005 may appear to have been satisfied to order the endorsement of the warrant in spite of the delay of five months, since it so ordered, the Court on this present application under s. 16 of the Act cannot be satisfied that the warrant was endorsed "in accordance with section 13".

14 Section 13(1) of the Act provides:

"13.—(1) The Central Authority in the State shall, as soon as may be after it receives a European Arrest Warrant transmitted to it in accordance with section 12, apply, or cause an application to be made, to the High Court for the endorsement by it of the European arrest warrant………""

15 Ms. Greally on the other hand has submitted that the Court on the 5th August 2005 must have been so satisfied, and that in any event the period of five months is not so excessive as to go outside a concept of"as soon as may be". In relation to this first point of objection, it happens in this case to be the fact that on the 5th August 2005 I heard the application under s. 13 of the Act for the endorsement of the warrant. As far as I am aware the question of any delay in the making of that application did not arise on the application. But nevertheless I am of the view that the requirement contained in section 16(1) of the Act that the Court be satisfied that the warrant was endorsed in accordance with section 13 of the Act means that this Court must ensure that the warrant was endorsed for execution prior to the arrest and bringing before the Court of the respondent. While that section states that the application should be made as soon as may be, I am not satisfied that the Court prior to endorsing the warrant must at all times enquire as to whether the application might not have been made earlier, except in very clear cases of what I will loosely term significant or extreme delay. No strict time limit has been inserted in the Act or in the Framework Decision itself. The phrase "as soon as may be" permits of some passage of time clearly. In the present case I am satisfied that the warrant has been endorsed for execution in accordance with section 13 of the Act.

16 Secondly, Mr Kelly submits that the terms of the Act and the Framework Decision are not complied with in relation to the question of minimum gravity of the offences stated in the warrant. It is necessary that the offences referred to carry a maximum penalty of a term of imprisonment of not less than twelve...