The Minister for Justice and Equality v Jermolajevs

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 12 February 2013
• Neutral Citation: [2013] IEHC 102
• Court: High Court
• Date: 12 February 2013

[2013] IEHC 102

THE HIGH COURT

Record No: [No. 82 EXT/2012]

Min for Justice v Jermolajevs

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

JURIJS JERMOLAJEVS

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 5) ORDER 2004 SI 449/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 5) ORDER 2004 SI 449/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 E(3)

EUROPEAN ARREST WARRANT ACT 2003 S5

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(4)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4(1)

EUROPEAN ARREST WARRANT ACT 2003 PARA 3

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(G)(I)

EUROPEAN ARREST WARRANT ACT 2003 S1

EUROPEAN ARREST WARRANT ACT 2003 S2

EUROPEAN ARREST WARRANT ACT 2003 S4

EUROPEAN ARREST WARRANT ACT 2003 S6

EUROPEAN ARREST WARRANT ACT 2003 S7

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) PART 3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) S37(1)(A)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) S37(1)(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 8

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 6

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) S37(1)(C)(III)(11)

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

CONSTITUTION ART 40.3.2

EUROPEAN ARREST WARRANT ACT 2003 ART 3

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001 S4

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(I)

CRIMINAL LAW 1998 S175(3) (REPUBLIC OF LATVIA)

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001 S12

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001 S19

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2011 S2

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2011 S3

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2011 SCHED 1

CRIMINAL DAMAGE ACT 1991 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 3

BAZJAKS v LATVIA UNREP ECHR 19.10.2010 (APPLICATION NO 71572/01)

EUROPEAN ARREST WARRANT ACT 2003 S4A

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

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204

MIN FOR JUSTICE v WLODARCYZK UNREP EDWARDS 19.5.2011 2011 IEHC 209

MIN FOR JUSTICE v MIHAI UNREP EDWARDS 10.10.2011 2011 IEHC 386

MIN FOR JUSTICE v MACHACZKA UNREP EDWARDS 12.10.2012 2012 IEHC 434

SAADI v ITALY 2009 49 EHRR 30 2008 24 BHRC 123 2008 IMM AR 519 2008 INLR 621

MIKLIS v LITHUANIA 2006 4 AER 808 2006 EWHC 1032 (ADMIN)

EXTRADITION

European arrest warrant

Surrender - Offences - Correspondence - Description of penalties on conviction - Minimum gravity - Offences committed while juvenile - Prison conditions - Inhumane and degrading treatment - Right to bodily integrity - Family rights - Whether correspondence between Latvian and Irish offences - Whether minimum gravity of offences established - Whether less serious offences meeting threshold of minimum gravity - Whether substantial grounds for believing respondent would be exposed to real risk of treatment contrary to fundamental rights in Latvian prison - Whether surrender would result in disproportionate interference with family rights - Minister for Justice v Mazurek [2011] IEHC 204, (Unrep, Edwards J, 13/5/2011) applied - Minister for Justice v Rettinger [2010] IESC 45, [2010] 3 IR 783; Minister for Justice v Stapleton [2007] IESC 30, [2008] 1 IR 669; Saadi v Italy [2009] EHRR 30 and Miklis v Lithuania [2006] EWHC 1032 (Admin), [2006] 4 All ER 808 approved - Minister for Justice v Wlodarcyzk [2011] IEHC 209, (Unrep, Edwards J, 19/5/2011); Minister for Justice v Mihai [2011] IEHC 386, (Unrep, Edwards J, 10/10/2011); Minister for Justice v Machaczka [2012] IEHC 434, (Unrep, Edwards J, 12/10/2012); Price v United Kingdom (2002) 34 EHRR 53; Mouisel v France (2004) 38 EHRR 34; Jalloh v Germany (2007) 44 EHRR 32; Labitav v Italy (2008) 46 EHRR 50; Aydin v Turkey (1998) 25 EHRR 251 and Selmouni v France (2000) 29 EHRR 403 considered - European Arrest Warrant Act 2003 (Designated Member States)(No 5) Order 2004 (SI 449/2004), art 2 - European Arrest Warrant Act 2003 (No 45), ss 1, 2, 3, 4, 4A, 5, 6, 7, 11, 13, 16, 21, 22, 23, 24, 37, 38 and 45 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 2, 3, 4, 12 and 19 - Criminal Damage Act 1991 (No 31), s 2 - Constitution of Ireland 1937, Art 40.3.2 - European Union Council Framework Decision 13/6/2002, arts 2, 4 and 37 - Charter of Fundamental Rights of the European Union 2010, arts 7 and 47 - European Convention on Human Rights 1950, arts 3, 6 and 8 - Application granted in part; surrender ordered (2012/82EXT - Edwards J - 12/2/2013) [2013] IEHC 102

Minister for Justice and Equality v Jermolajevs

Facts: The respondent was the subject of a European arrest warrant issued by the Republic of Latvia. He objected to his surrender on the basis inter alia that he was underage at the time of the commission of the offences, that it was disproportionate to surrender him where he might not receive a custodial sentence. He alleged that it was in breach of his rights to surrender him to a place where the prison conditions amounted to a breach of his rights under the Constitution and/ or Article 3 ECHR, in violation of s. 37 European arrest warrant Act 2003, as amended. The Court considered the question of correspondence and minimum gravity.

Held by Edwards J. that there was nothing to suggest that the respondent was especially vulnerable or any special characteristic exposing him to human rights abuses. The evidence was not sufficient to displace the presumption that the issuing state would respect his fundamental rights. The circumstances did not outweigh the rendition of the respondent. The Court was not obliged to regard the surrender as prohibited in the circumstances.

1 JUDGMENT of Mr. Justice Edwards delivered on the 12th day of February, 2013

Introduction:

2 The respondent is the subject of a European arrest warrant issued by the Republic of Latvia on the 24th February, 2012. The warrant was endorsed by the High Court for execution in this jurisdiction on the 6th March, 2012 and it was duly executed on the 16th April, 2012. The respondent was arrested by Garda Kathryn Christie 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 29th November, 2012 for the purposes of a surrender hearing.

3 The respondent does not consent to his surrender to the Republic of Latvia. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependent upon a judicial finding that they have been so satisfied.

Uncontroversial s. 16 issues:

4 The Court has received an affidavit of Garda Kathryn Christie sworn on the 26 ^th November, 2012 testifying as to the arrest of the respondent and as to the respondent's identity. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

5 The Court has also received and has scrutinised a true copy of the European arrest warrant in this case. Further, it has of its own initiative taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.

6 The Court is satisfied following its consideration of these matters that:

7 (a) the European arrest warrant was endorsed for execution in this State in accordance with s. 13 of the 2003 Act;

8 (b) the warrant was duly executed;

9 (c) the person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

10 (d) the warrant is in the correct form;

11 (e) the warrant purports to be a prosecution type warrant and the respondent is wanted in Latvia for trial in respect of the seven offences particularised in Part E of the warrant. Further, the domestic decision upon which the European arrest warrant is based is a decision of Daugavpils Court of the 9 ^th October, 2007 "by which the security measure applied J. Jermolajevs - police supervision, residing in specific place of residence and notifying of address where correspondence shall be served - was substituted for the security measure - arrest."

12 (f) No issue as to trial in absentia arises in the circumstances of...