Minster for Justice and Equality v Arakas; Minster for Justice & Equality v Arakas

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 07 November 2022
• Neutral Citation: [2022] IEHC 676
• Court: High Court
• Docket Number: [2018 No. 34 EXT.]

Between

Minster for Justice and Equality

Applicant

and

Imre Arakas

Respondent

[2022] IEHC 676

[2018 No. 34 EXT.]

[2021 No. 184 EXT.]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 7th day of November, 2022

1 . There are two separate European arrest warrants to be dealt with in the course of this judgment.

EAW 1 — 2018 No. 34 EXT.

2 . By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Lithuania (“Lithuania”) pursuant to a European arrest warrant dated 18th January, 2018 (“the EAW”). The EAW was issued by Mr. Tomas Krusna, of the Prosecutor General's Office of the Republic of Lithuania, as the issuing judicial authority.

3 . The EAW seeks the surrender of the respondent in order to prosecute him in respect of three offences.

4 . The EAW was endorsed by the High Court on 29th January, 2018 and the respondent was arrested and brought before the High Court on 19th February, 2018 on foot of same.

5 . 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.

6 . I am satisfied that none of the matters referred to in ss. 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. As regards s. 21A of the Act of 2003, this is dealt with subsequently in this judgment and I find that surrender is not precluded by that provision.

7 . I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. Each of the offences in respect of which surrender of the respondent is sought carry a maximum penalty in excess of 12 months' imprisonment.

8 . At part E of the EAW, a description of the circumstances in which the offences are alleged to have been committed including the time, place and the degree of participation in the offence by the respondent is set out. 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 European arrest warrant are offences to which Article 2.2. of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedure Between Member States, as amended (“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 offence 1 as set out in the EAW is an offence to which Article 2.2. of the Framework Decision applies, that same is punishable by a maximum penalty of at least three years' imprisonment and has indicated the appropriate box for “murder”. There is no manifest error or ambiguity in respect of the aforesaid certification such as would justify this Court looking beyond same. As regards the other two offences referred to in the EAW, I am satisfied that correspondence can be established between same and offences under the law of the State, namely, as regards offence 2 in the EAW, the corresponding offence in this State is that of unlawful possession of firearms contrary to s. 2 of the Firearms Act, 1925, as amended, and, as regards offence 3 in the EAW, the corresponding offence under the law of this State is criminal damage contrary to s. 2 of the Criminal Damage Act, 1991. No issue was taken in respect of correspondence.

9 . While initially the respondent put forward a number of grounds of opposition to surrender, over the passage of time many of those points of opposition were not pursued or abandoned. When the matter last came before the Court on 10th October 2022, the Court was informed that, in relation to EAW 1, the respondent essentially had two inter-related points of objection:-

• (i) That no decision had been made to charge the person with and try him for the offence in respect of which surrender is sought, as required by s. 21A of the Act of 2003; and

• (ii) Adequate or accurate particulars of the circumstances in which the offence was alleged to have been committed had not been furnished by the executing state, as required by s. 11 of the Act of 2003.

10 . It was initially submitted on behalf of the respondent that, on examination of the procedures adopted in the issuing state, no decision had been made to charge and try the respondent as required by s. 21A of the Act of 2003. Various affidavits from a Lithuanian lawyer were relied upon in that regard.

11 . The Court sought and received additional information from the issuing judicial authority and, by reply dated 2nd July, 2021, the issuing judicial authority responded indicating as follows:-

• (i) That at the time the EAW issued, it was the intention of the competent prosecuting authorities, subject to any additional information which may come to light and any additional formal steps to be taken, to put the respondent on trial for the offences the subject matter of the EAW. It further indicated that the European arrest warrant procedure is not initiated only for the purpose of performing procedural actions against the suspect or other parties to the proceedings:-

  “The recognition of a fugitive as a suspect and the initiation of the issuance and execution of a European Arrest Warrant are determined by the purpose of prosecuting the person concerned for the offenses (sic.) incriminated to him, with a view to convicting him or her with the judgement of conviction or acquitting him or her from criminal liability”;

• (ii) It is confirmed that it is the intention of the competent prosecuting authorities, subject to any additional information which may come to light and any additional formal steps to be taken, to put the respondent on trial for the offences the subject matter of the EAW;

• (iii) It is confirmed that in the opinion of the competent prosecuting authorities, there currently exists sufficient evidence upon which to put the respondent on trial for the offences the subject matter of the EAW;

• (iv) In order to prosecute the respondent it is necessary to submit a new notification of suspicion to him, to interrogate him, and, if necessary, to perform the verification of data already collected during the pre-trial investigation, to notify him about the end of the pre-trial investigation, to allow access to all data collected during the pre-trial investigation and serve him in the indictment. It is stated:-

  “The abundance of the listed procedural actions confirms that the expeditious performance of the pre-trial investigation has been carried out since 2015 and its completion is possible only if the suspect I. Arakas is surrendered to the Republic of Lithuania”; and

• (v) In relation to the trial of other accused relating to the same murder, it is confirmed that pursuant to the judgment of Kaunas Regional Court of 30th June, 2021, [H.E.E.], [A.G.] and [R.B.], acting together with the respondent, in the form of an organised group, were convicted of criminal offences provided for in Articles 25(3), 129(2), 129(6) and 129(7) of the Lithuanian Criminal Code and sentenced with terms of imprisonment of 16 years, 16 years and 13 years, respectively.

12 . In light of the Supreme Court decision in Minister for Justice v. Campbell [2022] IESC 21, the respondent no longer pursues the original point of objection but, rather, adopts a different position in relation to s. 21A of the Act of 2003. It is now submitted on behalf of the respondent that s. 21A refers to the offence in respect of which the EAW was issued and that, in this instance, the European arrest warrant was issued in respect of an offence, the particulars of which included that the respondent not only engaged with others in preparatory acts in order to bring about the murder of the victim, but that he was actually at the scene when the victim was shot. By way of additional information from the issuing judicial authority, the case being made against the respondent is that he engaged with others in various preparatory acts with a view to bringing about the murder of the victim but that he was not physically present at the location when the victim was shot. It is, in effect, submitted that the EAW should be viewed in isolation of the additional information provided and that the additional information in fact discloses a different offence from that referred to in the EAW.

13 . In the EAW, at part E the following particulars are set out:-

“1. Imre Arakas while acting in an organized group with [A.A.], [H.E.E.] and other persons (subjects of pre-trial investigation) for mercenary reasons, i. e. aiming to obtain money for the murder of [D.B.], prepared the plan and made preliminary arrangements for establishing [D.B.]'s residence address, day schedule, routes, vehicles, looking for the suitable site for the murder. For that purpose, between September 2015 and 7 November 2015, I. Arakas with [H.E.E.] and [A.A.] would come to the Republic of Lithuania by plane, bus or cars, and in conspiracy would do the surveillance of [D.B.]. Continuing their preparations for the murder, I. Arakas, [H.E.E.], and [A.A.] have procured the necessary tools and means, i.e. unlawfully acquired the firearms (under the circumstances — subject of pre-trial investigation), namely: pistols of 9 mm calibre, ammunition — not less than 12 LUGER bullets of 9 mm calibre, vehicle ‘Renault Megane’ with plate No. CZ 143 RK (which was stolen in the Republic of France between 7:00 p.m. 22/08/2015 and 1:15 p.m. 23/08/2015), and they also acquired some items in the territory of the Republic of Estonia, as well as the Kingdom of Spain, namely an optic sight, clothes and chemical substances for eliminating the...