The Minister for Justice and Equality v Lisauskas

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IESC 42
• Docket Number: [Appeal No: 2017/148]
• Court: Supreme Court
• Date: 31 July 2018

Between/

The Minister for Justice and Equality

Applicant/Respondents

and

Thomas Lisauskas

Respondent/Appellant

[2018] IESC 42

Clarke C.J.

McKechnie J.

MacMenamin J.

Charleton J.

Finlay Geoghegan J.

[Appeal No: 2017/148]

THE SUPREME COURT

European Arrest Warrant – Judicial authority – Preliminary ruling – Appellant seeking to appeal against his surrender pursuant to a European Arrest Warrant – Whether the Prosecutor General of the Republic of Lithuania is a "judicial authority" within the meaning of Article 6(1) of the Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States, and hence the Irish European Arrest Warrant Act 2003

Facts: The surrender of the respondent/appellant, Mr Lisauskas, was sought pursuant to a European Arrest Warrant (EAW) issued by the Prosecutor General's Office of the Republic of Lithuania on the 18th April, 2014. The surrender was sought for the prosecution of an offence allegedly committed in 2012 which the Prosecutor General categorised as "armed robbery". Mr Lisauskas objected to his surrender in the High Court, the executing judicial authority in Ireland, on a number of grounds all of which were rejected. On the 20th October, 2017, the Court of Appeal upheld the decision of the High Court. The ground of objection relevant to the dispute in the appeal before the Supreme Court was that the Prosecutor General is not a "judicial authority" within the meaning of Article 6(1) of the Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States, and hence the Irish European Arrest Warrant Act 2003.

Held by Finlay Geoghegan J that the Supreme Court was obliged pursuant to Article 267 of the Treaty on the Functioning of the European Union to refer questions to the Court of Justice of the European Union to enable it decide the appeal in this matter.

Finlay Geoghegan J held that the questions to be referred were the following: 1) Are the criteria according to which to decide whether a public prosecutor designated as an issuing judicial authority for the purposes of Art. 6(1) is a judicial authority within the autonomous meaning of that phrase in Art. 6(1) of the Framework Decision that (i) the public prosecutor is independent from the executive and (ii) considered in his own legal system to administer justice or participate in the administration of justice?; 2) If not, what are the criteria according to which a national court should determine whether a public prosecutor who is designated as an issuing judicial authority for the purposes of Art. 6(1) of the Framework Decision is a judicial authority for the purposes of Art. 6(1)?; 3) Insofar as the criteria include a requirement that the public prosecutor administer justice or participate in the administration of justice is that to be determined in accordance with the status he holds in his own legal system or in accordance with certain objective criteria? If, objective criteria what are those criteria?; 4) Is the Public Prosecutor of the Republic of Lithuania a judicial authority within the autonomous meaning of that phrase in Art. 6(1) of the Framework Decision?

Referral to the Court of Justice of the EU.

The Interim ruling of the Supreme Court referring questions to the Court of Justice of the European Union for a preliminary ruling delivered by Ms. Justice Finlay Geoghegan on 31st July, 2018.

1 The Supreme Court has decided that it is obliged pursuant to Article 267 of the Treaty on the functioning of the European Union to refer questions to the Court of Justice of the European Union in relation to the autonomous meaning of an issuing judicial authority in Art. 6(1) of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States ('the Framework Decision') to enable it decide the appeal of Mr. Lisauskas against the decision of the Court of Appeal that he be surrendered to the Republic of Lithuania pursuant to a European Arrest Warrant (EAW) issued by the Prosecutor General's Office of the Republic of Lithuania (the 'Prosecutor General').

2. Subject Matter of the Dispute

2.1 The surrender of Mr. Lisauskas is sought pursuant to an EAW issued on 18th April 2014 by the Prosecutor General. The surrender is sought for the prosecution of an offence allegedly committed in 2012 which the Prosecutor General certifies as falling within Article 2.2 of the Framework Decision and is categorised as 'armed robbery.'

2.2 Mr. Lisauskas objected to his surrender in the High Court, the executing judicial authority in Ireland, on a number of grounds, all of which were rejected. The only ground of objection relevant to the dispute in the appeal before the Supreme Court is that the Prosecutor General is not a 'judicial authority' within the meaning of Article 6(1) of the Framework Decision and hence the Irish European Arrest Warrant Act 2003.

2.3 In support of his contention that the Prosecutor General is not a judicial authority within the meaning of Art. 6(1) of the Framework Decision. Mr. Lisauskas adduced evidence from Mr. Simas Tokarcakas a practising lawyer in Lithuania holding a masters degree in law from Vilnius University. Mr. Tokarcakas provided two affidavits sworn on the 9th June, 2016 and 14th June, 2016 which exhibited two reports. The second report of the 14th June stated, in summary the following to be the position of the Prosecutor General in the legal system of the Republic of Lithuania. The Republic of Lithuania has a written Constitution which is a living constitution with a Constitutional Court which gives decisions in relation thereto. In accordance with Art. 109 of the Constitution the administration of justice is solely a matter for the courts. The Prosecutor General is the most senior prosecutor in Lithuania and has the status of a prosecutor. He is independent of the executive and is also independent of the judiciary. In accordance with Art. 118 of the Constitution the function of the prosecutor is to organise and direct pre-trial investigation and prosecute criminal cases. Mr. Tokarcakas further explained:

'The Constitutional Court in its rulings of 13th May 2004, 16th January 2006, 28th May 2008 and 7th April 2011 has stated that according to the Constitution a prosecutor does not administer justice. Justice is also not being administered during the pre-trial investigation which is organised by a prosecutor. According to the Constitution, the administration of justice is solely the function of the courts (i.e. the judiciary)...'

2.4 The High Court in exercise of its jurisdiction under s.20 of the European Arrest Warrant Act, 2003 sought further information from the office of the Prosecutor General through the central authority for Ireland, the Department of Justice and Equality. On the 30th June, 2016 the affidavits of Mr. Tokarcakas were sent to the office of the Prosecutor General with a request for comments thereon. The response of the 11th July referred to the need to assess the term 'judicial authority' in the context of the Framework Decision and made the point that it is not sufficient 'to identify how prosecution services is defined and positioned in the national law system'. He noted the absence of a definition of a judicial authority in the Framework Decision.

2.5 This was followed by a more specific request from the High Court transmitted by the central authority in a letter the 3rd August, 2016. The substantive request made by the High Court is as follows:

'The High Court requested under section 20 of the European Arrest Warrant Act 2003, as amended, and Article 15.2 of the Framework Decision, to be provided with the following additional information.

In the context of the structure and composition of the Lithuanian Judicial System is the Prosecutor General considered an integral part of the judicial structure or judicial corps?

In answering this question the High Court would appreciate if you could address the following issues:

The Affidavit of Laws of Simas Tokarcakas sworn June 14th 2016, provided to your office under cover of letter dated 30th June 2016, in essence contends that the Prosecutor General is (1) independent of the judiciary, (2) does not perform judicial functions, and (3) is simply tasked with pre-trial investigation. Can you please comment on these specific assertions by reference to the Laws of Lithuania?

The said Affidavit further outlines that 'The Constitutional Court in its rulings of 13th May 2004, 16th January 2006, 28th May 2008 and 7th April 2011 has stated that according to the Constitution a prosecutor does not administer Justice'. Can you please comment on these specific assertions by reference to the Laws of Lithuania and/or legal precedent to include rulings referred to in the said Affidavit?

Please furnish any other relevant statement of the legal position of the Prosecutor General in Lithuania as part of the Judicial System of Judicial Corps.'

2.6 The response from the Prosecutor's office dated the 7th September, 2016 referred to the right of the Prosecutor General's office to issue European Arrest Warrants pursuant to Art. 69(1) of the Criminal Procedure Code of the Republic of Lithuania an extract of which was set out. The letter then stated:

'In addition, please be informed that your questions have already been answered in 11 July 2016 letter ref. No. 14.2.-3498 (14.3.-16/14) of the Prosecutor General's Office of the Republic of Lithuania. Thus, we shall not make any detailed commented [sic] regarding the issues raised in the statement of lawyer's assistant Simas Tokarcakas.'

2.7 There was then a further exchange between the Irish central authority and the...