Minister for Justice & Equality v Jociene

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 31 May 2013
• Neutral Citation: [2013] IEHC 290
• Court: High Court
• Date: 31 May 2013

Min for Justice v Jociene

No Redaction Needed

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between/

THE MINISTER FOR JUSTICE & EQUALITY

Applicant

-AND-

ANGELINA JOcIENÉ

Respondent

[2013] IEHC 290

Record No.: 310 Ext./2011

THE HIGH COURT

European arrest warrant – Surrender of applicant –No decision to charge and try the respondent – Disproportionate interference with right to respect for family life

Facts: The proceedings concerned an application for the court under s.16 European Arrest Warrant Act 2003 to order that the respondent, who was subject to a European Arrest warrant, be surrendered to the issuing state.

The issues raised by the respondent for the court”s consideration were, whether pursuant to s 21A an order for surrender could be given when no decision had been made by the issuing state to charge and try the respondent, and secondly under s. 37(1) whether the respondent”s surrender would be a disproportionate interference with her right to respect for family life under Article 8 ECHR.

Edwards J held that the presumption under s.21A(2) should be rebutted as it was unclear whether the issuing state had made a decision to both charge and try the respondent for the sole offence in the warrant. Evidence was held to be strongly indicative that a decision to try the defendant had yet to be taken, Olsson [2011] IESC 1 considered and affirmed. In accordance with s.21A the respondent could not be surrendered.

In regard to the s.37(1) issue, the respondent had failed to provide sufficient evidence that her surrender would constitute a disproportionate interference with her right to respect for family life or outweigh the public interest in her extradition.

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 SCHED

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

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

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

EUROPEAN ARREST WARRANT ACT 2003 S21A(1)

ISMAIL, IN RE 1999 1 AC 320 1998 3 WLR 495 1998 3 AER 1007

OLSSON v MIN FOR JUSTICE 2011 1 IR 384 2011 2 ILRM 395 2011/43/12423 2011 IESC 1

MIN FOR JUSTICE v CONNOLLY UNREP EDWARDS 6.12.2012 2012 IEHC 575

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2013 IEHC 62

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4

1 JUDGMENT of Mr Justice Edwards delivered on the 31st day of May, 2013.

Introduction:

2 The respondent is the subject of a European arrest warrant issued by the Republic of Lithuania on the 13 ^th July, 2011. The warrant was endorsed by the High Court for execution in this jurisdiction on the 14th September, 2011, and it was duly executed on the 9th November, 2011. The respondent was arrested by Garda Donal O'Donovan on that date, following which she was brought before the High Court later on the same day pursuant to s.13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s.16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 The respondent does not consent to her surrender to the Republic of Lithuania. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive her. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied.

Uncontroversial s.16 issues

4 The Court has received an affidavit of Garda Donal O'Donovan sworn on the 29 ^th November, 2011, testifying as to his arrest of the respondent and as to the questions he asked of the respondent to establish the respondent's identity. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

5 The Court has also received and has scrutinised a true copy of the European arrest warrant in this case. Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.

6 I am satisfied following my consideration of these matters that:

7 (a) The European arrest warrant was endorsed for execution in this state in accordance with s. 13 of the Act of 2003;

8 (b) The warrant was duly executed;

9 (c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

10 (d) The warrant is in the correct form;

11 (e) The warrant purports to be a prosecution type warrant and the respondent is wanted in Lithuania for trial in respect of the four offences particularised in Part E of the warrant.

12 (f) It is conceded by counsel for the applicant that correspondence cannot be established with respect to the second offence listed in Part E. Moreover, the said second offence is charged contrary to the version of Article 277 § 1 of the Criminal Code of the Republic of Lithuania that was in force at the material time, and in regard to which the penalty provided for was a period of up to two years "corrective labour", rather than any term of detention or imprisonment. The decidedly Soviet era concept of "corrective labour" was described in additional information dated the 4 ^th May, 2012, as meaning that any person subject to this penalty was appointed to work in his/her previous workplace and a particular percentage of his/her wage was deducted for the state budget. The current version of the Criminal Code of Lithuania no longer provides for corrective labour but if the respondent were to be convicted of the second offence she would be sentenced in accordance with the provisions of the old version of the said Code. Accordingly the Court is not being asked to surrender the respondent to be prosecuted for the second offence.

13 (g) It is further conceded by counsel for the applicant that there is no immediate intention to prosecute the respondent for the third and fourth offences because the additional information dated the 4 ^th May, 2012, makes it clear, at paragraph (h) thereof, that the ability of the prosecuting authorities to try her for those offences is contingent upon a conviction being first recorded against her for the crimes allegedly committed in 1998 (i.e., the first and second offences listed in Part E). In the circumstances, the applicant is not asking the Court to surrender the respondent to be prosecuted for the third and fourth offences listed in Part E.

14 (h) The sole remaining offence with which the Court is concerned is the first offence listed in Part E. For the avoidance of doubt this is the offence which is the subject of Lithuanian Criminal Case No. 20-1-683-98.

15 (i) The underlying domestic decision on which the warrant is based is an Order of Kaunas City District Court of the 6 ^th December, 2007, imposing a provisional measure of arrest.

16 (j) The issuing judicial authority has invoked paragraph 2 of article 2 of Council Framework Decision the 13 ^th June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/J.H.A.) O.J. L190/1 18.7.2002 (hereinafter referred to as "the Framework Decision") in respect of the first offence listed in Part E by the ticking of the box in Part E.I of the warrant relating to "fraud". There was some initial uncertainty due to an imprecise translation in one part of the warrant which used the word "swindling" rather than "fraud" as to what offence or offences were in fact intended to be covered by the ticking of this box, but the position has been clarified by additional information dated the 15 ^th December, 2011. It is now beyond doubt that paragraph 2 of article 2 of the Framework Decision is being invoked in respect of the first offence. Accordingly, subject to the Court being satisfied that the invocation of paragraph 2 of article 2 is valid (i.e. that the minimum gravity threshold is met, and that there is no basis for believing that there has been some gross or manifest error), it need not concern itself with correspondence;

17 (k) The minimum gravity threshold in a case in which paragraph 2 of article 2 of the Framework Decision is relied upon is that which now finds transposition into Irish domestic law within s. 38(1)(b) of the Act of 2003, as amended, namely that under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years. The first offence...