Minister for Justice & Equality v Vestartas
|Mr. Justice John MacMenamin
|02 April 2020
| IESC 12
|[Appeal No. 108/19]
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003, AS AMENDED
 IESC 12
[Appeal No. 108/19]
THE SUPREME COURT
Facts: The High Court (Hunt J), in a judgment dated the 29th March 2019, refused an application brought by the appellant, the Minister for Justice and Equality, for the surrender of the respondent, Mr Vestartas, to the Republic of Lithuania where, as a young person, he had committed a substantial number of offences, and had partly served a sentence subsequently imposed on him. He was later released on parole. In contravention of his parole conditions, he left Lithuania and moved to Ireland. The Minister applied to the High Court to certify that grounds existed for an appeal to the Court of Appeal. It was contended that the judgment raised issues of exceptional public importance concerning the interpretation of provisions of the European Arrest Warrant Act 2003, as amended. In an addendum judgment delivered on the 27th May, 2019, Hunt J rejected the Minister‘s application and declined to grant a certificate for an appeal to the Court of Appeal. The Minister then applied for leave to appeal directly to the Supreme Court. In the application for leave, it was contended that the High Court judgment raised issues of general public importance and would have a wide-ranging impact on other European Arrest Warrant proceedings. The Supreme Court determined that the issues raised in the judgment were of general public importance. Specifically, the question arose as to whether the High Court had correctly interpreted and applied the Act and the principles enunciated in the jurisprudence.
Held by MacMenamin J that, on the basis of s.4A of the 2003 Act, and in the absence of any contrary evidence, the Supreme Court must presume compliance with the Framework Decision and the protections it contains; it must presume that any determination in Lithuania of what part, if any, of the balance of the sentence the respondent would have to serve after a substantial elapse of time would be a judicial decision, following a proceeding where the respondent would be able to fully exercise his rights of defence, or mitigation, in an effective manner and thereby influence any final decision which could potentially lead to a loss of freedom. MacMenamin J held that no case had been made that, on surrender, a new hearing as to sentence or penalty in the Lithuanian courts would have any predetermined outcome; rather, it would be decided on the basis of the facts then adduced (Tupikas (Case C-270/17; 10th August, 2017) at paras. 78–80, and Ardic (Case C-571/17 PPU; 22nd December, 2017) at para. 76).
MacMenamin J held that he would allow the appeal and make an order that the respondent may be surrendered on the European Arrest Warrant to the Republic of Lithuania.
In a judgment dated the 29th March 2019, the High Court (Hunt J.), refused an application brought by the Minister for Justice and Equality for the respondent's surrender to the Republic of Lithuania where, as a young person, he had committed a substantial number of offences, and had partly served a sentence subsequently imposed on him. He was later released on parole. In contravention of his parole conditions, he left Lithuania and moved to Ireland. Later, whilst in this State, he formed a relationship with his partner. The couple have two children. The elder child was born before the respondent moved to Ireland, but he is now in loco parentis to that girl, who is aged twelve. The couple's younger daughter is now aged four years.
Bearing in mind these and other features of the case, including delay, the High Court judge held that, to make an order for the return of the respondent to Lithuania would infringe the private and family rights of the respondent, his partner and the children under Article 8 of the European Convention on Human Rights (“the ECHR;” “the Convention”). He therefore refused to make the order sought. He held that these exceptional features were such that the public interest, which would normally compel surrender, was heavily and unusually compromised having regard to the adverse effects of making such an order. He held that, during the time the respondent was in Ireland, he had formed relationships which constituted a de facto family, giving rise to rights under Article 8 of the ECHR. He concluded that these features were sufficiently weighty to render a proposed surrender an unwarranted and disproportionate interference with such rights.
Subsequently, the Minister applied to the High Court to certify that grounds existed for an appeal to the Court of Appeal. It was contended that the judgment raised issues of exceptional public importance concerning the interpretation of provisions of the European Arrest Warrant Act, 2003, as amended (“the 2003 Act”).
In the course of that application, the Minister submitted that the High Court judge had taken into account a number of features which should not have formed part of the assessment. These included findings that the respondent had part-served his sentence; observations on the gravity, or otherwise, of the breach of the parole conditions imposed on him; a finding that the respondent had shown signs of rehabilitation whilst in this jurisdiction; and a conclusion that there had not been a satisfactory or full explanation of the delays which had taken place prior to the issuing of the European Arrest Warrant (“the EAW”) on the 21st December, 2016, which was transmitted to Ireland more than one year later.
In an addendum judgment delivered on the 27th May, 2019, Hunt J. rejected the Minister's application and declined to grant a certificate for an appeal to the Court of Appeal. He held that he had applied the balancing exercise required under s.16 of the 2003 Act as identified by this Court in ; . He observed that the question of delay, considered in detail in the substantive judgment, fell to be considered in the context of the effects and consequences of the particular period of delay on the facts of the individual case before him (para. 9). He expressed the view that, if the relevance of delay as a consideration in such applications had been in doubt, the judgments of this Court in had put the materiality of that feature beyond doubt (para. 9). Citing the judgment of this Court in Article 8 factors in this case, when weighed cumulatively, were powerful, such as would warrant a refusal to surrender. ; , Hunt J. held that the Both judgments were consolidated in a composite judgment dated the 2nd July, 2019.
The Minister then applied for leave to appeal directly to this Court. In the application for leave, it was contended that the High Court judgment raised issues of general public importance and would have a wide-ranging impact on other EAW proceedings. This was because the analysis was potentially applicable to all proceedings where surrender was requested for the purpose of serving the balance of part-served sentences. The Minister observed that, anecdotally, approximately one half of all conviction, as opposed to prosecution, warrants that came before the High Court related to part-served sentences, particularly so in relation to warrants emanating from the Baltic States. Moreover, it was submitted that the judgment gave rise to basic questions regarding the role of the High Court and the status of the statutory limitations on the role of that Court contained in the 2003 Act.
More specifically, it was argued that the High Court judgment raised the question as to whether, in determining an application for surrender, that Court might properly have regard to issues such as whether the objectives of parole or rehabilitation had been met under the Act, where these were, in fact, properly matters for the Lithuanian courts. It was contended that the High Court had trespassed into areas where it was not permitted to go under the legislation, and that this judgment was at variance from other High Court judgments (see, and , where Irish courts had refused to have regard to such matters, deeming them questions to be considered by the courts of the issuing state).
The respondent submitted that the case involved no more than an application of principles previously outlined by this Court in , and that if, as in this case, there were matters such as delay to which a respondent could refer, such features might give rise to an inference that the public interest in pursuing an extradition was at the lower end of the scale. He contended that, where there were also other factors present, these, cumulatively, could properly fall to be assessed by the High Court judge, and, in an appropriate case, lead to a refusal to surrender. In short, the respondent's case was that the judge correctly took these features into account and applied the correct legal principles in his decision.
This Court determined that the issues raised in the judgment were of general public importance. Specifically, the question arose as to whether the High Court...
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