Minister for Justice, Equality and Law Reform v Brendan Mcguigan

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 16 April 2013
• Neutral Citation: [2013] IEHC 216
• Court: High Court
• Date: 16 April 2013

[2013] IEHC 216

THE HIGH COURT

Record No. 37 EXT 2008

Min for Justice v McGuigan

APPROVED

Mr. Justice Edwards

JUDGMENT

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

BETWEEN:

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant

AND

BRENDAN McGUIGAN

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

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

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S(21A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO3) ORDER 2004 SI 206/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO3) ORDER 2004 SI 206/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO3) ORDER 2004 SI 206/2004 SCHEDULE

FIREARMS ACT 1925 S16

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(I)

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 38.1

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 40.4.1

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 40.3.1-2

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION FOR PREVENTION OF TORTURE ART 8(5)

CONSTITUTION ART 31

LITHUANIA CODE OF CRIMINAL PROCEDURE S50

EUROPEAN ARREST WARRANT ACT 2003 S37(1)A

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 40.3

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204

MIN FOR JUSTICE v WLODARCYZK UNREP EDWARDS 19.5.2011 2011 IEHC 209

MIN FOR JUSTICE v MIHAI UNREP EDWARDS 10.10.2011 (EXTEMPORE)

MIN FOR JUSTICE v MACHACZKA UNREP EDWARDS 12.10.2012

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2012/27/7744 2012 IEHC 434

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN ARREST WARRANT ACT 2003 S4ACONSTITUTION ART 40.3

AG v PRATKUNAS UNREP PEART 28.11.2007 2007 IEHC 418

EXTRADITION ACT 1965 PART IISOERING v UNITED KINGDOM 1989 11 EHRR 439

WRIGHT v GOVT OF ARGENTINA 2012 EWHC 669 (ADMIN)

MIKLIS v DEPUTY PROSECUTOR OF LITHUANIA 2006 EWHC 1032 (ADMIN)

JANOVIC v PROSECUTOR GENERALS OFFFICE IN LITHUANIA 2011 EWHC 710(ADMIN)

SAVENKOVAS v LITHUANIA ECHR 1456 21.10.2008 App NO. 871/02

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2013 IEHC 62

KRS v UK ECHR 2.12.2008 App NO. 32733/08

RETURNR (JAN ROT) v DISTRICT COURT OF LUBLIN POLAND 2010 EWHC 1820

TARGOSINSKI, IN RE 2011 EWHC 312

ADMINAGIUS v COURT OF MAGISTRATES MALTA UNREP 15.3.2011 2011 EWHC 759

JANOVIC v PROSECUTOR GENERALS OFFICE LITHUANIA UNREP 25.3.2011 2011 EWHC 710

ROZAITIENE v REPUBLIC OF LITHUANIA 2009 NIQB 3

MIKLIS v PROSECUTOE GENERAL OF LITHUANIA 2006 EWHC (ADMIN) 1032

R (BAGDANAVICIUS) HOME SECRETARY 2005 4 AER 263

CONSTITUTION ART 40.3

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783

EUROPEAN ARREST WARRANT ACT 2003 PART 3

EXTRADITION LAW

European arrest warrant

Points of objection - Respondent subject of arrest warrant issued by Lithuania - Allegation of police mistreatment of detainees - Allegation of inhuman and degrading conditions in prisons and police stations - Allegation of instances of prolonged pre-trial detention - Strength of evidence adduced by respondent - Whether surrender of respondent created risk to constitutional right to bodily integrity - Whether risk of inhuman or degrading treating - Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45, [2010] 3 IR 783 applied - Minister for Justice and Equality v Holden [2013] IEHC 62 (Unrep, Edwards J, 11/2/2013) distinguished - Lithuania v Campbell [2013] NIQB 19 (Unrep, High Court of Northern Ireland, 22/2/2013) considered - European Arrest Warrant Act 2003 (No 45), ss 4A, 16 and 37 - Constitution of Ireland 1937, Art 40.3 - European Convention on Human Rights 1950, art. 3 - Surrender refused (2008/37EXT - Edwards J - 16/4/2013) [2013] IEHC 216

Minister for Justice, Equality and Law Reform v McGuigan

Facts: The applicant in the case sought for the respondent, the subject of a European arrest warrant issued by the Republic of Lithuania, to be surrendered to the issuing state by way of an order made under s.16 European Arrest Warrant Act 2003. The respondent did not consent to his surrender, contending that Lithuanian detention centres had inhumane and degrading conditions and detainees were often ill-treated. He further advocated that there were fundamental inadequacies existing in the criminal justice system.

The issues the court chose to address in the hearing were those concerning prison conditions and the alleged ill-treatment of prisoners in Lithuania, and the extent to which this prohibited the surrender of the respondent under s.37 of the Act of 2003, due to the failure to respect his fundamental rights under Article 3 ECHR and Article 40.3 Constitution of Ireland.

Edwards J held the strong evidence in the case rebutted the presumption under s.4A of the Act of 2003 which provided the issuing state will respect the respondent”s fundamental rights if surrendered. The strength of the evidence created reasonable grounds for believing that the surrender would pose a real risk to the respondent of exposure to inhuman or degrading treatment, Minister for Justice and Equality v Holden [2013] I.E.H.C. 62 (Unreported, High Court, Edwards J., 11th February, 2013) distinguished.

The case did not propound a new principle of law and has no precedent value, any similar case coming before the court would be assessed on the strength of the evidence adduced.

1 JUDGMENT of Mr Justice Edwards delivered on the 16th day of April, 2013

Introduction:

2 The respondent is the subject of a European arrest warrant issued by the Republic of Lithuania on the 12th February, 2008. The warrant was endorsed by the High Court for execution in this jurisdiction on the 20th February 2008, and it was duly executed on the 28th February, 2008. The respondent was arrested by Sgt. James Kirwan on that date, following which he was brought before the High Court 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 matter was adjourned to that date in the first instance, with the respondent remanded in custody. Subsequently on the 5 ^th March, 2008 there was a bail hearing and the respondent was successful in obtaining bail. Thereafter the matter was adjourned from time to time ultimately coming before this Court on the 7th February, 2012 for the purposes of a surrender hearing. The case was initially scheduled to take three days. In the event it took somewhat longer than that, and the hearing was punctuated by a number of adjournments, primarily to facilitate the respondent in seeking to make a late amendment to his points of objection to add additional grounds, to adduce additional evidence in support of those grounds, and also to afford the applicant time to respond to the new material coming from the respondent's side, including seeking additional information from the issuing judicial authority / the issuing state.

3 The respondent does not consent to his surrender to the Republic of Lithuania (hereinafter "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 him. 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 Sgt James Kirwan sworn on the 21 ^st May, 2008 testifying as to his arrest of the respondent and as to 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, it has of its own initiative 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 The Court is satisfied following its 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 2003 Act;

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 three offences particularised in Part E of the warrant. Further, the domestic warrant upon which the European arrest warrant is based is a warrant issued by the 1 ^stDistrict Court of Vilnius City on the 8th February, 2008 "for a measure of constraint - arrest (criminal case No 10-9-105-07)";

12 (f) the first offence is described under the law of the issuing state as preparation to commit smuggling of firearms,...