Minister for Justice, Equality and Law Reform v Butenas

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 November 2006
• Neutral Citation: [2006] IEHC 378
• Court: High Court
• Date: 24 November 2006

[2006] IEHC 378

THE HIGH COURT

Record Number: No. 110 Ext./2006

MIN FOR JUSTICE v BUTENAS

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Algimantas Butenas

Respondent

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

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S6

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S7

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S25

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S26

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S30

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S45

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S22

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S23

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S24

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S21A

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 PART III

RSC O 98

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 17

MINISTER FOR JUSTICE EQUALITY & LAW REFORM v G (L) 2005 39 8035 2005 IEHC 310

MINISTER FOR JUSTICE EQUALITY & LAW REFORM v OSTROVSKIJ 2005 38 7883 2005 IEHC 427

BOUDHIBA v CENTRAL EXAMINING COURT NO 5 OF THE NATIONAL COURT OF JUSTICE MADRID 2006 3 AER 574

EUROPEAN ARREST WARRANT ACT 2003 S16

Abstract:

Criminal law - Extradition - Surrender - Delay - Whether the presumption that the requesting state had already decided to prosecute the respondent for the offences set out in the European arrest warrant was rebutted - Whether the surrender of the respondent ought to be refused on the grounds of delay in endorsing the warrant - European Arrest Warrant Act, 2003

Facts: The surrender of the respondent was sought by the Lithuanian authorities in relation to three offences. The first offence was an offence which the Lithuanian authorities indicated was one of the offences referred to in Article 2.2 of the Framework Decision where double criminality does not have to be verified. The respondent submitted that correspondence was not established in this case. The respondent also submitted, by way of a rebuttal of the presumption contained in section 21A of the Act that the wording of the warrant indicated that no decision to prosecute the respondent had yet been taken in the requesting state. It was also argued that there was delay in endorsing the warrant and that the respondent was prejudiced as a result.

Held by Peart J. in ordering the surrender of the respondent:

1. That the requesting state deemed the first offence to be an offence referred to in Article 2.2 of the Framework decision and this court was precluded from considering that issue further. Correspondence was established in relation to all of the offences.

2. That the presumption in this case was not rebutted and there was no delay regarding the endorsement of the warrant since it was received in this State.

Reporter: L.O’S.

1 Mr Justice Michael Peart delivered on the 24th day of November 2006:

2 The surrender of the respondent is sought by the Lithuanian authorities pursuant to a European arrest warrant issued in Lithuania on the 5 ^th April 2005. The domestic warrant on foot of which the European arrest warrant was issued is itself dated 2 ^nd February 2005 and is described as an arrest warrant. The European arrest warrant was endorsed for execution by the High Court on the 5 ^th September 2006, and the respondent was duly arrested here on the 11 ^th September 2006. No issue arises as to identity.

3 The three offences for which surrender is sought are described in the warrant as "assisting in forging a document or use or realization of a forged document"; "Credit Fraud"; and "Attempt to commit credit fraud". The first said offence is an offence which the Lithuanian authorities have indicated is one of the offences referred to in Article 2.2 of the Framework Decision where double criminality does not have to be verified. They have ticked the box opposite the offence of "forgery of administrative documents".

4 In respect of the latter two offences, Patrick McGrath BL submits that the facts underlying these offences as gleaned from the warrant would correspond to offences in this country under s. 6 or s. 7 of the Criminal Justice (Theft and Fraud) Offences Act, 2001, namely making a gain or causing a loss by deception, or obtaining services by deception.

5 The facts as set forth in the warrant allege that the respondent gave his passport and social insurance certificate to another person with the intention that false records be entered therein to indicate that he had been working as a manager of a company since 1 ^st January 2001, and that on the following day that man returned the documents to the respondent with false records inserted. The allegation is that thereafter the respondent then presented the passport and social insurance certificate to a retail shop and entered into a leasing transaction for a washing machine, and furthermore that on the following day he again presented these false documents to another retail shop and attempted to enter into a leasing transaction for a refrigerator, but that he failed to complete this transaction because he was arrested by the police.

6 Mr Kelly has attempted to submit that the alleged forgery offence does not correspond to the offences of forgery and using a false instrument, being offences under s. 25 and s. 26 respectively of the Criminal Justice (Theft and Fraud) Offences Act, 2001, since for a document to constitute a false document for the purpose of these sections, it must come within the categories of document set forth in s. 30 of the same Act. This is a case where the requesting state has ticked the appropriate box in relation to an Article 2.2 offence. The Court is precluded from looking at that question further, and there is absolutely no question in this case but that the facts set forth in the warrant justify the ticking of that box. There can be no question of it having been ticked through some manifest error, and neither is there any room for any suggestion of bad faith on the part of the requesting authority.

7 I am satisfied that the acts alleged would in respect of the latter two offences, being offences in this country, namely making a gain or causing a loss by deception, or obtaining services by deception correspond to the offences identified by Mr McGrath, namely under s. 6 or s. 7 of the Criminal Justice (Theft and Fraud) Offences Act, 2001. This is not an 'in absentia' case and therefore no undertaking is required under s. 45 of the Act. No issue is raised as to any reason appearing from sections 22, 23 or 24 of the Act why surrender should be refused. An issue is raised as to s. 21A of the Act and I will come to that.

8 Subject to dealing with submissions made by Kieran Kelly BL in relation to Part 3 of the Act I am satisfied that the surrender of the respondent is not prohibited by anything in Part 3 of the Act or the Framework Decision.

The Points of Objection filed:

9 This is another case in which lengthy and unspecific points of objection have been filed. There are 10 points of objection raised in this document, and yet only two points are being argued when the matter comes on for hearing. That is unsatisfactory.

10 I will not set out all these points in detail, but suffice to say first of all that for the most part they are formulaic, general, unspecific and more like the sort of pleading more usually found in a Defence pleading. It has been pointed out both in this Court and by now by the Supreme Court that such a manner of compliance with the provisions of Order 98 RSC is not appropriate. Any respondent is entitled to raise points of objection, but the rule is quite clear to the effect that this must be done by setting out in a clear way what the objection is and the material and facts on which that point of objection is grounded. The actual evidence does not have to be contained in the points of objection, but the point being made must be clearly set out since, as I have said on previous occasions, both the Court and the applicant may know with clarity what is being put forward by way of objection.

11 Of the ten points of objection raised only two are being argued at this hearing.

12 Firstly it is submitted by way of rebuttal of the presumption in s. 21 A of the Act...