Minister for Justice v D.S.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 09 June 2015
• Neutral Citation: [2015] IEHC 459
• Court: High Court
• Docket Number: [2014 No. 78 Ext],[2014 No. 78 EXT]
• Date: 09 June 2015

[2015] IEHC 459

THE HIGH COURT

Donnelly J.

[2014 No. 78 EXT]

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 AS AMENDED

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

D.S.

RESPONDENT

Crime & Sentencing – Extradition – Art. 8 of the European Convention on Human Rights – S. 44 of European Arrest Warrant Act 2003 – Extraterritorial jurisdiction – S. 3 of Geneva Conventions Act, 1962 – Fair trial

Facts: The Republic of Croatia sought an order for the surrender of the respondent for prosecution for an alleged war crime against prisoners of war. The respondent contended that his extradition would be barred under s. 44 of European Arrest Warrant Act 2003 as the State of Croatia was not in existence at that time and now it could not exercise extraterritoriality.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that the literal interpretation of s. 44 of the said Act 2003 would not be feasible in the light of the objectives of the Framework Decision to remove the complexity and potential for delay in extradition matters between member states. The Court opined that the territory of the issuing state that must be considered was the territory when it was issuing the European Arrest Warrants. The Court found that in the present case, the Republic of Croatia claimed an extraterritorial jurisdiction. The Court observed that the consideration of the family and private life of an individual as envisaged under art. 8 of the European Convention on Human Rights must be balanced with the larger public interests. The Court held that the present case being concerned with war crimes involving grave breach of the Geneva Conventions would not call for giving undue importance to the family life of the respondent.

JUDGMENT of Ms. Justice Donnelly delivered the 9th day of June 2015

1 The surrender of the respondent is sought pursuant to a European Arrest Warrant (‘EAW’) issued by the County Court in Osijek, Republic of Croatia and dated the 11th April, 2014. The respondent is sought for prosecution for an alleged war crime of torturing and treating prisoners of war inhumanely in November 1991 during the conflict that occurred in the course of the break-up of the Socialist Federal Republic of Yugoslavia. Two central issues arise in this case, the first concerns Section 44 of the European Arrest Warrant Act, 2003 as amended (‘the Act of 2003’) and the second is whether the respondent's rights under Article 8 of the European Convention on Human Rights (‘ECHR’) to respect for his family life and private life would be violated by his surrender to Croatia. A further issue regarding fair trial rights was raised by the respondent. The final point raised was that it was patent from the EAW that his surrender was sought for the purpose of prosecution in respect of alleged offences that are contrary to statutory provisions post-dating the offence.

2 The EAW was received in this jurisdiction on the 25th April, 2014 and endorsed for execution on the 6th May, 2014. On the 3rd June, 2014, the respondent was arrested on foot of the EAW. He was subsequently granted bail and thereafter was remanded from time to time and the matter came on for hearing before me on the 25th March, 2015 and with continued hearing on the 27th April, 2015.

The background to the EAW

3 The respondent is sought for prosecution for the single offence of a war crime alleged to have been committed on the 19th November, 1991. The EAW is grounded upon an arrest warrant or judicial decision having the same effect issued in the Republic of Croatia, namely a ruling ordering detention issued on the 18th June, 2010, by the County Court in Vukovar. The respondent is sought for an offence ‘pursuant to Art. 122 of the Basic Criminal Code of the Republic of Croatia – 20 (twenty) years (Official Gazette Nr. 53/91, 32/92, 31/93 – consolidated version, 35/93 – correction, 108/95, 16/96, 128/96)’ as set out in section (c) of the EAW. That offence is known in Croatian law as a war crime against prisoners of war.

4 Section (e) of the warrant describes the circumstances of the alleged offence as follows: ‘In the Republic of Serbia, in the area of the hemp – spinning mill (Kudeljara) and the so called ‘Cestarska kuæa’ in the vicinity of the Erdut-Bogojevo bridge in the evening of the 19th November 1991, after the members of the Yugoslav National Army, territorial defence and joined paramilitary forces had taken captive several hundreds of Croatian defenders in the area of the facilities of ‘Borovo-commerce’ in Vukovar and organised their transport to the camps in the area of the Republic of Serbia, when one of the buses pulled over he took as a member of the reserve unit of the military police of the Yugoslav National Army, dressed in the military uniform with a white belt, together with several unidentified members of the same unit all captive persons from the bus where contrary to the provisions of Art. 3 section 1 and Art. 13 and Art. 14 of the Geneva Convention relative to the Treatment of Prisoners of War of 12th August 1949 they tortured them mentally and physically, threatened to shoot them or cut their throats, tied their hands on their backs by wire and rope, beating them with feet, hands, rifle butts, batons and laths on all parts of their bodies, fastened the so called ‘fixations’ on the wounded body parts of the captives and then threw them randomly one over the other into the ditch, whereafter they returned them into the bus and forced some of them to clean the pools of blood on the road, whereby while taking them out of the bus he personally hit Vlado Kovaèiæ severely on his temples so that he fell through the bus door, he continued to hit him with his feet and stamping on all his body parts, tore the upper part of his clothing and threw him on the floor pointing the cutting edge of his bayonet against his chest saying ‘you have slit my father and my mother, now you shall see how we the Chetniks cut throats’, and he was beating the neighbour Vinko Miljko with his hands and feet while wearing military boots, broke his ribs and as a consequence of which Miljko fainted.’

5 Further information was sought by the Central Authority as to the location of the places referred to at the time of the offence and at the present time. In particular, the question was asked whether Vukovar and Kudeljara were both part of Yugoslavia on the date the alleged offence was committed. The reply was as follows: ‘at the time when the referred offence was committed Vukovar was and had also been before 1991 within the territory of the Republic of Croatia; the Republic of Croatia was one of the federal republics within the former Yugoslavia until its break-up whereas the place called Kudeljara was and has remained within the territory of the Republic of Serbia, which was also one of the federal republics of former Yugoslavia until its break-up.’ The reply went on to confirm that Vukovar is today a part of the Republic of Croatia and that Kudeljara is today a part of the Republic of Serbia. The reply also confirmed that at the time of the commission of the offence, the Croatian defenders were prisoners of war in terms of the Geneva Convention Relative to the Treatment of Prisoners of War of the 12th August, 1949.

A Member State that has given effect to the Framework Decision

6 The surrender provisions of the Act of 2003 apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’). By the European Arrest Warrant Act 2003 (Designated Member States) Order 2014 ( S.I. 84 of 2014) the Minister for Foreign Affairs has designated the Republic of Croatia as a Member State for the purposes of the Act of 2003.

Section 16(1) of the Act of 2003

7 Under the provisions of s. 16(1) of the Act of 2003 as amended, the High Court, may make an order directing that the person be surrendered to the issuing state provided that:

a) the High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,

b) the EAW, or a true copy thereof, has been endorsed in accordance with s. 13 for execution,

c) the EAW states, where appropriate, the matters required by s. 45,

d) The High Court is not required, under sections 21A, 22, 23 or 24 of the Act of 2003 as amended to refuse surrender,

e) The surrender is not prohibited by Part 3 of the Act of 2003.

Identity

8 I am satisfied having read the EAW, taking into account the affidavit of Sean Fallon and bearing in mind the affidavit of the respondent, that the respondent D.S. who appears before me is the person in respect of whom the EAW has issued.

Endorsement

9 I am satisfied, having examined the EAW, that the EAW has been endorsed for execution in accordance with s. 13 of the Act of 2003.

Section 45

10 As a warrant for prosecution of an alleged offence, this is not a matter to which the provisions of s. 45 apply.

Sections 21A, 22, 23 and 24

11 I am quite satisfied having read the warrant, the additional information and all other documentation placed before me, that surrender is not prohibited by any of the above sections of the Act of 2003.

Part 3 of the Act of 2003

12 Part 3 of the Act comprises sections 37 to 46 inclusive. The respondent only raised issues under s. 37, s. 38 and s. 44 in his points of objection. In carrying out the role of this Court as executing judicial authority to ensure that the requirements of the Act of 2003 are fulfilled, I have scrutinised the EAW, additional information, points of objection and verifying affidavits and exhibits. Subject to further...