Minister for Justice, Equality and Law Reform v Ferenca

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 May 2007
• Neutral Citation: [2007] IEHC 199
• Court: High Court
• Date: 24 May 2007

[2007] IEHC 199

THE HIGH COURT

Record Number: No. 25 Ext./2007

MIN FOR JUSTICE v FERENCA

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Saulius Ferenca

Respondent

Abstract:

Criminal law - Extradition - European Arrest Warrant - Surrender - Correspondence - Minimum gravity - European Arrest Warrant Act, 2003 - Whether correspondence was established - Whether the surrender of the respondent could be ordered in circumstances where correspondence was established in relation to two out of three of the offences set out in the warrant.

The surrender of the respondent was sought in order for him to serve a sentence of two years and nine months imprisonment which was imposed on him by a court in the requesting state following his conviction in respect of three offences. The respondent objected to his surrender on the grounds that the European Arrest Warrant in this case was issued by the Minister for Justice in the requesting state, no undertaking was given under section 45 of the Act of 2003 and correspondence had not been made out.

Held by Peart J. in ordering the surrender of the respondent: 1. That it was not for the respondent to raise the question of whether the Minister for Justice should or should not be a judicial authority for the purpose of issuing a European Arrest Warrant. The conviction and sentence in relation to the respondent was not imposed in absentia and therefore section 45 of the Act was not brought into play in the manner sought to be argued by the respondent.

2. That correspondence in relation to one of the offences in the warrant, namely “being an accessory with another person in producing a forged payment instrument” was not made out. Correspondence was established in relation to the other two offences. However the conduct of which the respondent was convicted in the aforementioned offence was conduct coming under a broad concept of fraud and therefore the surrender of the respondent was not prohibited under Part III of the Act (section 38(1)(b)) or the Framework Decision. It followed that the minimum gravity requirement in respect of a sentence to be served was satisfied.

Reporter L. O’S

1 Mr Justice Michael Peartdelivered on the 24th day of May 2007:

2 The surrender of the respondent is sought by the judicial authority in the Republic of Lithuania on foot of a European arrest warrant dated 5th January 2007, which was duly endorsed here by the High Court on the 6th February 2007. The respondent was duly arrested on foot of same on the 7th February 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 has been remanded in custody from time to time pending the hearing of the present application for his surrender under s. 16 of the Act.

3 His surrender is sought so that he can serve a sentence of two years and nine months imprisonment which was imposed on him by a court in the requesting state following his conviction in respect of three offences which are set out in the warrant. Since correspondence has been raised as a Point of Objection on this application I will be dealing with the detail of what actions by the respondent gave rise to the offences in the requesting state.

4 I am satisfied that the person who has been arrested and brought before the Court is the person in respect of whom this European arrest warrant has been issued. No issue has been raised in that regard.

5 I am satisfied that there is no reason why surrender should be refused by reference to anything in sections 21A, 22, 23 or 24 of the Act. The relevant presumptions have not been rebutted. I am also satisfied, subject to addressing the points of objection now relied upon by the respondent, that the surrender of the respondent is not prohibited by Part III of the Act or the Framework Decision.

Points of Objection:

1. Section 16(4) Bail point:

6 The respondent raises this point which has been decided by me already in a number of cases, such as Draisey, Butenas, Puta and Sulej. These cases are currently the subject of appeals to the Supreme Court. I have no reason to decide the point differently in the present case and I reject it as a point of objection for the same reasons which I have given in the other cases referred to.

1. Improper ratification by the Oireachtas of the Framework Decision of 13th June 2002:

7 This is also a point which has been raised in other cases such as Iqbal, Sulej and Puta, and which I have rejected. Again these judgments are the subject of appeals to the Supreme Court, and I have no reason to decide the point differently in the present case, and I reject it.

3. The warrant has been issued by the Minister for Justice in Lithuania and not by a judge:

8 The respondent pleads in his Points of Objection that the fact that the Minister for Justice, as the judicial authority, has issued the European arrest warrant in this case, rather than a judge "flies in the face of the rationale underlying the European arrest warrant system and does not trigger the principle of mutual recognition, the cornerstone of judicial co-operation".

9 In my view it is not for the respondent to raise the question of whether the Minister for Justice in the Republic of Lithuania should or should not be a judicial authority for the purpose of issuing g a European arrest warrant. That country has been designated by the Minister for Foreign Affairs for the purpose of s.3 of the Act, and therefore if a European arrest warrant has been issued by a Minister for Justice in the issuing state in his or capacity as "the judicial authority" this Court respects that warrant as one properly issued in the issuing state for the purpose of the Framework Decision and the Act. It would be a matter for the Minister for Foreign Affairs to be satisfied about such a matter before designation takes place, and not for a respondent to raise the matter on an application such as the present one.

4. No undertaking has been given under section 45 of the Act:

10 The warrant recites the fact that at all stages of the prosecution process, including his trial and conviction, the respondent was present. It states in this regard:

"Saulius Ferenca was present in person at the hearings of all his criminal cases and at the pronouncement of all judgments."

11 While the Points of Objection filed by the respondent deny that this is so, and written submissions given to the Court have stated that while he was present in Court when the suspended sentence was originally imposed, he was not present when the suspension was lifted in view of the respondent's breach of conditions of suspension, no affidavit in support of that point of objection has been filed.

12 I accept the statement in this regard which is contained in the warrant at paragraph (b) thereof. It seems perfectly clear from the text of the warrant that he was present when convicted, and when sentence was passed, and when that sentence was varied on appeal. What is also clear is that he did not comply with the conditions of that suspended sentence, and that he changed his residence without the court's authorisation thereby avoiding the court's supervision during the period of suspension. The fact that his breach of the conditions of that suspension have led to the lifting of the suspension, requiring him therefore to serve the sentence imposed does not amount to a conviction or sentence being imposed in absentia. In my view s. 45 of the Act has not been brought into play in the manner sought to be argued by the respondent.

5. Correspondence:

13 It is submitted by Kieran Kelly BL for the respondent that while the offences for which the respondent was convicted in Lithuania are in the nature of 'fraud' offences, the issuing authority has for some reason chosen not to tick the box marked 'fraud' in paragraph (e) of the European arrest warrant, being one of the offences referred to in Article 2.2 of the Framework Decision and, as such, an offence in respect of which correspondence or double criminality does not have to be verified on the application for surrender. He submits that this cannot be regarded as mere accident, and that there must have been a reason for not so doing.

14 Mr Kelly submits correctly that the question of...