The Minister for Justice & Equality v Martin Gerard Holden

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 11 February 2013
• Neutral Citation: [2013] IEHC 62
• Court: High Court
• Date: 11 February 2013

[2013] IEHC 62

THE HIGH COURT

[No. 208 EXT./2011]

Min for Justice v Holden

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

MARTIN GERARD HOLDEN

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 SCHED

EUROPEAN ARREST WARRANT ACT 2003 S18

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S21A

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 22

CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA ART 182(2)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 21

CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA ART 182

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 21(4)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 121(2)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 218(1)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 119

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 122(4)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 122(1)(3)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 122(2)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 121

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 122

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 123

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 125

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 130

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 133

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 134

CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA ART 22(1)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA ART 131

CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA ART 95(3)

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

OLSSON v MIN FOR JUSTICE 2011 1 IR 384 2011 2 ILRM 395 2011/43/12423 2011 IESC 1

EUROPEAN ARREST WARRANT ACT 2003 S21A(1)

MIN FOR JUSTICE v MCARDLE 2005 4 IR 260 2006 1 ILRM 263 2005/38/7955 2005 IESC 76

MIN FOR JUSTICE v CONNOLLY UNREP EDWARDS 6.12.2012 2012 IEHC 575

EUROPEAN ARREST WARRANT ACT 2003 S4A

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 12

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 13

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 40.3

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011/36/10241 2011 IEHC 204

MIN FOR JUSTICE v WLODARCZYK UNREP EDWARDS 19.5.2011 2011/38/10669 2011 IEHC 209

MIN FOR JUSTICE v MIHAI UNREP EDWARDS 10.10.2011 2011/36/10272 2011 IEHC 386

MIN FOR JUSTICE v MACHACZKA UNREP EDWARDS 12.10.2012 2012/27/7744 2012 IEHC 434

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783 2011 1 ILRM 157 2010/36/8976 2010 IESC 45

MIKLIS v DEPUTY PROSECUTOR GENERAL OF LITHUANIA 2006 4 AER 808 2006 AER (D) 146 (MAY) 2006 EWHC 1032 (ADMIN)

SAVENKOVAS v LITHUANIA UNREP ECHR 18.11.2008 2008 ECHR 1456 (APPLICATION NO 871/02)

LITHUANIA v CAMPBELL UNREP NIQB BURGESS 16.1.2013 (EX TEMPORE)

EUROPEAN ARREST WARRANT ACT 2003 PART III

EXTRADITION LAW

European arrest warrant

Points of objection - Prison conditions in Lithuania - Burden of proof - Whether decision made to charge respondent with alleged offence - Whether decision made to try respondent for alleged offence - Whether surrender of respondent created risk to constitutional rights to life and bodily integrity - Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin); [2006] 4 All ER 808, DC followed - Savenkovas v Lithuania (App. No. 871/02) (Unrep, ECtHR, 18/11/2008); Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1, [2011] 1 IR 84; Minister for Justice, Equality and Law Reform v Maurek [2011] IEHC 204 (Unrep, Edwards J, 13/5/2011); Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16 (Unrep, SC, 1/3/2012); Minister for Justice and Equality v Machaczka [2012] IEHC 434 (Unrep, Edwards J, 12/102012) and Minister for Justice and Equality v Connolly [2012] IEHC 575 (Unrep, Edwards J, 6/12/2012) considered - European Arrest Warrant Act 2003 (No 45), ss 4A, 16, 21A and 37 - Constitution of Ireland 1937, Art 40.3 - Surrender ordered (2011/208EXT - Edwards J - 11/2/2013) [2013] IEHC 62

Minister for Justice and Equality v Holden

Facts: The respondent was the subject of a European arrest warrant that was issued by Lithuania on the 12 ^th August 2010 due to alleged offences he had committed there. He refused to surrender to Lithuanian authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003 (the 2003 Act’).

It was the respondent”s contention that he should not be surrendered to Poland because it would be in breach of his Constitutional and European Convention rights as well as pursuant to s. 37 of the 2003 Act due to the risk of him being subjected to inhumane and/or degrading treatment. He alleged that he had been arrested in Lithuania in connection with the alleged offences and detained for 13 days until he was released on bail during which time he was subject to extremely poor conditions. He described how he was unable to eat the food provided during his time due to it being inedible, overcrowding within the cell, the unhygienic condition of his surroundings and the freezing temperatures at all times all of which amounted to a breach of his human rights. The applicant also claimed that he should not be surrendered pursuant to s. 21A of the 2003 Act because no decision had been made by authorities whether to charge or try him for the alleged offences. He averred that the matter was at the pre-trial investigation stage yet there was a direction made by the Lithuanian courts to arrest and detain him while this was ongoing despite the fact he had not been formally charged.

The applicant claimed that whilst it must be accepted the warrant requests the applicant ‘be arrested and surrendered for the purposes of conducting a criminal prosecution’, it should be presumed, unless rebutted, that a decision had been made to charge and try the respondent. The applicant also stated that the respondent was obliged to rebut the presumption that prison conditions did not amount to inhumane and/or degrading treatment, something he had failed to do.

Held by Edwards J that the applicant was correct to state that there was a presumption in interpreting s. 21A of the 2003 Act that a respondent would be charged and tried by the issuing authority which could be overturned with rebuttal evidence. In the present case, the court was not convinced that the respondent had demonstrated that the presumption should in fact be rebutted.

In regard to the respondent”s contention that the prison conditions he would face if surrendered would amount to inhumane and/or degrading treatment meaning he should not be surrendered pursuant to s. 37 of the 2003 Act, it was held that there was also a presumption that the issuing state complied with any fundamental rights considerations unless rebutted. The respondent”s account of his treatment in the police detention centre was accepted as being consistent with the observations of the ‘European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment’. However, it was clear that unlike the respondent”s previous period of detention, the intention was for him to be held in an adult remand centre instead of a police detention centre. Under Lithuanian law he could be held in a police detention centre for up to 15 days. Even if this was to occur, it was felt that whilst the treatment the respondent had received previously was undoubtedly uncomfortable, it fell short of amounting to inhumane and/or degrading treatment given the finite duration of detention there. There was nothing put forward by the respondent that could convince the court that the presumption that the conditions in adult remand centre complied with fundamental rights considerations had been rebutted.

Order made pursuant to s. 16 of the European Arrest Warrant Act 2003 surrendering the respondent to the issuing state.

1 JUDGMENT of Mr Justice Edwards delivered on the 11th day of February, 2013

Introduction

2 The respondent is the subject of a European arrest warrant issued by the Republic of Lithuania on the 12 ^th August, 2010. The warrant was endorsed by the High Court for execution in this jurisdiction on the 8 ^th June, 2011, and it was duly executed on the 31 ^st January. 2012. The respondent was arrested by Gda. Kevin Nolan on that date, following which he was brought before the High Court on the following day pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time ultimately coming before the Court on the 10 ^th October, 2012 for the purposes of a...