Minister for Justice & Equality v Radionovs

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Caroline Biggs
• Judgment Date: 27 July 2022
• Neutral Citation: [2022] IEHC 615
• Docket Number: [2021 No. 369 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Sergejs Radionovs

Respondent

[2022] IEHC 615

[2021 No. 369 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking an order for the surrender of the respondent to the Republic of Latvia pursuant to a European arrest warrant – Whether surrender was prohibited by s. 45 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Radionovs, to the Republic of Latvia pursuant to a European Arrest Warrant dated 26th of February 2021 (the EAW). The EAW was issued by Mrs Pētersone, Prosecutor of the Prosecutor General’s Office, as the issuing judicial authority. The EAW sought the surrender of the respondent in order to enforce a sentence of imprisonment imposed upon the respondent of one year and one day. The respondent objected to surrender on the ground that surrender was prohibited by s. 45 of the European Arrest Warrant Act 2003, as amended.

Held by Biggs J that Article 4a of the Framework Decision 2002/584 is designed to ensure a high level of protection, citing Dworzecki C 108/16 PPU at para. 37 and Tupikas 270/17 PPU at para. 58). In the Court’s view, although it was difficult to point exactly when, at some point during the course of the domestic proceedings the Article 4a rights of the respondent were breached, and he was not afforded those protections. Biggs J was not satisfied that the requirements of s. 45 of the 2003 Act had been met in this instance. She was satisfied that the mischief which Article 4a of the Framework Decision and s. 45 of the 2003 Act seek to avoid had arisen in this case.

Biggs J held that the Court would make an order refusing the application for surrender.

Application refused.

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 27 ^th day of July, 2022

1 . By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Latvia pursuant to a European Arrest Warrant dated 26 ^th of February 2021 (“the EAW”). The EAW was issued by Mrs S. Pētersone, Prosecutor of the Prosecutor General's Office, as the issuing judicial authority.

2 . The EAW seeks the surrender of the respondent in order to enforce a sentence of imprisonment imposed upon the respondent of one year and one day.

3 . The EAW was endorsed by the High Court on 21 ^st of December 2021 and the respondent was arrested on the same date.

4 . I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

5 . I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

6 . I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.

7 . Section 38(1)(b) of the Act of 2003 provides that it is not necessary for the applicant to establish correspondence between the offences to which the EAW relates and offences under the law of the State, where the offences referred to in the EAW are offences to which Article 2.2 of the Framework Decision applies, and carry a maximum penalty in the issuing state of at least three years' imprisonment. In this instance, the issuing judicial authority has certified that the offences referred to in the EAW are offences to which Article 2.2 of the Framework Decision applies, that same are punishable by a maximum penalty of at least three years' imprisonment, and has indicated the appropriate box for “grievous bodily injury”. There is no manifest error or ambiguity in respect of the aforesaid certification such as would justify this Court in looking beyond same.

8 . The respondent objected to surrender on the following ground:

That surrender is prohibited by Section 45 of the Act of 2003. The respondent confirmed all other points referred to the in points of objections and submissions are no longer being relied upon.

9 . Section 45 of the Act of 2003 states:

“A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant or the Trade and Cooperation Agreement arrest warrant, as the case may be, was issued, unless in the case of a European arrest warrant, the warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA and in the case of a Trade and Cooperation Agreement arrest warrant, the warrant indicates the matters required by paragraph 1(i) of Article LAW.SURR.81 of the Cooperation and Trade Agreement, as set out in the table to this section.”

10

Part B.1. of the Warrant states:

“Decision on which the warrant is based:

Enforceable judgment:

1. Judgment of the Valmiera District Court of 17 March 2014 by which S. Radionovs was found guilty of committing a criminal offence prescribed for by Paragraph 1 of Section 125 of the Criminal Law, and sentenced with a sentence of deprivation of liberty for 1 (one) year 9 (nine) months and with placement under police supervision for 1 (one) year.

2. Judgment of the Jēkabpils District Court of 15 December 2014 by which S. Radionovs was found guilty of committing a criminal offence prescribed for by Paragraph 2 of Section 231 of the Criminal Law, and sentenced with a sentence of deprivation of liberty for 1 (one) year without police supervision and of committing a criminal offence prescribing for by Paragraph 1 of Section 125 of the Criminal Law, and sentenced with a sentence of deprivation of liberty for 3 (three) years 6 (six) months with placement under police supervision for 2 (two) years.

The Riga City Latgale Suburb in a decision dated 27 October 2015 consolidated by “partially adding” the above sentences resulting in a custodial sentence of 4 years 9 months and placement under police supervision for 3 years.

The Zemgale District Court in a decision of 19 August 2020 decided to convert the police supervision into a custodial sentence of 1 years 1 day (which came into effect on 8 September 2020).”

11

The respondent swore an affidavit dated the 3 ^rd March 2022 wherein he averred to the following:

• • The Latvian authorities seek his surrender for the purposes of executing a sentence of one year and one day. He states that he was aware of the three years police supervision, however he was not informed of the consequences of breaching the supervision. He did not know that it could be transferred into a custodial sentence.

• • He was released from serving his custodial sentence and was informed that he needed to travel to Jēkabpils Police Station within three days to comply with police supervision. He says that he has no connection to that Jēkabpils, nor did he have money or transport to that place. He states that he stayed at his friend's place at Maskavas Street in Riga and then travelled to his brother's place in Dagda.

• • On the third day he went to the police station in Dagba to register. They noted his attendance and took a note of his brother's address in Dagba.

• • He has been in Ireland since March 2019.

12

In light of the respondent's averments, this Court sought additional information on a number of occasions and received comprehensive responses from the issuing judicial authority. This Court sets out the relevant extracts:

(i) The issuing judicial authority, in a letter dated 25 ^th January 2022, stated:

“[…]

Please be advised that Sergesi Radionovs has completely served the basic sentence imposed to him – liberty deprivation for 4(four) years 9 (nine) months.

The additional sentence (in the given case — police supervision) is the punishment, which the Court shall impose as a coercive measure with purpose to supervise the conduct of a person released from a prison and to subject such person to the restrictions laid down by the police authority.

The serving of the additional punishment shall start as of the moment when the serving of the basic sentence is completed. In the given case the serving of the additional punishment imposed to Sergejs Radionovs — police supervision for 3 years — was commenced after serving the basic sentence — liberty deprivation for 4 (four) years 9 (nine) months, namely, after the release from a prison.”

(ii) The letter of the 25 ^th of January 2022 also provided relevant Latvian Criminal Law provisions, these provisions provided this Court with a better understanding of the domestic legal status of these proceedings, the important sections are set out hereunder:

“Section 45. Police Supervision

1) Police supervision is an additional sentence, which a court may adjudge as a compulsory measure, in order to supervise the behaviour of the person released from a place of deprivation of liberty and so that this person may be subjected to the limitations prescribed by the police institution. If cases when a person is conditionally early released from the sentence serving, the enforcement of the additional punishment — police supervision — shall be started as of the moment when the supervision of a person after conditional early release has ended…

5) If a person, for whom police supervision has been determined by a judgment of the court, violates its provisions in bad faith, a court, pursuant to a submission from the police institution, may replace the term of an additional sentence that has not been served, with the deprivation of...