The Minister for Justice and Equality v Vestartas

• Jurisdiction: Ireland
• Judge: Mr. Justice Hunt
• Judgment Date: 01 March 2019
• Neutral Citation: [2019] IEHC 481
• Docket Number: Record No. 2018/153 EXT
• Court: High Court
• Date: 01 March 2019

[2019] IEHC 481

THE HIGH COURT

Hunt J.

Record No. 2018/153 EXT

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

Between/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-and-

MANTAS VESTARTAS

Respondent

European Arrest Warrant – Surrender – Rights to family and private life – Respondent seeking an order refusing his surrender on foot of a European Arrest Warrant – Whether the proposed surrender was an unwarranted and disproportionate interference with the rights to family and private life

Facts: The respondent, Mr Vestartas, was the subject of a European Arrest Warrant (the EAW) issued by the Siauliai County Court, a judicial authority of the Republic of Lithuania. The EAW was issued by the Lithuanian authority on 22 November 2016, and it was endorsed for execution by the High Court. Mr Vestartas was subsequently arrested and brought before the High Court pursuant to the terms of s. 13 of the European Arrest Warrant Act 2003. Mr Vestartas later delivered points of objection to his surrender, and the s. 16 hearing ultimately took place on 18 January 2019. The points of objection put the applicant, the Minister for Justice and Equality, on proof of all matters required for the making of an order for his surrender. During the s. 16 hearing, the points of substantial dispute were confined to firstly, whether there was correspondence between the offences set out in the EAW and offences under domestic criminal law, and secondly an objection to surrender based on the provisions of s. 37 of the 2003 Act. In reality, the second point occupied most of the discussion at the surrender hearing, and was the most substantial matter in dispute between the parties. Apart from those two issues, Hunt J was otherwise satisfied that the Minister had complied with the conditions required for an order for surrender, and he limited discussion to those matters.

Held by Hunt J that, having had regard to the exceptional factual features of this case, the public interest factors that would ordinarily compel surrender were so heavily and unusually compromised that the adverse effects of surrender on the respondent and his children, particularly his youngest child, were sufficiently weighty to render his proposed surrender an unwarranted and disproportionate interference with the rights to family and private life under Article 8 of the European Convention on Human Rights of all concerned. Hunt J held that to hold otherwise would deprive the concept of respect for family and personal rights of all meaning, and would give insufficient weight to the relevant public interest in the proper rehabilitation of young offenders.

Hunt J held that, in those circumstances, he would uphold the s. 37(1) objection set out in paragraphs 3(a) and (b) of the points of objection, and as a consequence, there would be an order refusing the surrender of Mr Vestartas on foot of the EAW of 22 December 2016.

Order granted.

JUDGMENT of Mr. Justice Hunt delivered on the 1st of March, 2019

General:

1 Mr. Vestartas is the subject of a European Arrest Warrant (‘the EAW’) issued by the Siauliai County Court, a judicial authority of the Republic of Lithuania. The EAW was issued by the Lithuanian authority on 22 November 2016, and I am satisfied that it was endorsed for execution by the High Court, and that Mr. Vestartas was subsequently arrested and brought before the High Court pursuant to the terms of section 13 of the 2003 Act. Mr. Vestartas later delivered Points of Objection to his surrender, and the section 16 hearing ultimately took place on 18 January 2019.

2 The points of objection by Mr. Vestartas put the Minister on proof of all matters required for the making of an order for his surrender. During the section 16 hearing, the points of substantial dispute were confined to firstly, whether there was correspondence between the offences set out in the EAW and offences under domestic criminal law, and secondly an objection to surrender based on the provisions of section 37 of the 2003 Act. In reality, the second point occupied most of the discussion at the surrender hearing, and was the most substantial matter in dispute between the parties. Apart from these two issues, I am otherwise satisfied that the Minister has complied with the conditions required for an order for surrender, and I propose to limit discussion to these matters.

Factual background to the warrant:

3 Mr. Vestartas is a native of Lithuania, who was born in Siauliai on 11 June 1989. His surrender is requested for the purpose of service of a sentence of 2 years, 5 months and 26 days. This represents the balance to be served of a term of imprisonment of 5 years and 8 months imposed on him by a judgment of 1 July 2006 of the District Court of Siauliai Region. A second judgment of that Court on 12 September 2011 rendered him liable to serve the balance of the sentence imposed by virtue of the earlier judgment.

4 The history of the matter is that Mr. Vestartas began to commit criminal offences at a young age. He was aged 14 on 2 September 2003, when he committed the earliest offence referred to in the EAW. Following this, he committed a large number of further offences up to 21 May 2005, when he was still under the age of 16. The EAW refers to 43 separate offences committed within the relevant period. The most serious of these are the last two offences, which were committed in April and May of 2005. The 43 offences were dealt with the Siauliai District Court in 6 separate instalments between 17 November 2004 and 1 July 2006.

5 The sentencing court followed a composition process in dealing with these offences. The sentences imposed in respect of each individual offence were continually cross-referenced against sentences previously imposed in order to ensure that Mr. Vestartas received a proportionate sentence. The judgment of 1 July 2006 imposed a final composite sentence of 5 years and 8 months imprisonment in respect of all of the offences that had been committed by him up to that date. The final sentence represented a considerable reduction from the total of the individual sentences applicable to the 43 relevant offences. As set out below, I am satisfied that the issuing authority has fully explained the nature and effect of both the 43 underlying offences, and the sentencing process applied to those offences by the successive orders of the Siauliai District Court. This appears from the comprehensive and detailed narrative set out in paragraph (e) of the EAW, and in the subsequent additional information supplied in relation to the matter.

6 Mr. Vestartas served his sentence until 1 July 2009, when he was granted a parole release from his correctional institution by a decision of the District Court of the Kaisiadorys Region. According to paragraph (b) of the EAW, his parole release was subject to the following conditions:-

‘to register in the correctional inspection four times a month; to stay at home from 10 PM to 6 AM except for work-related cases; to restrain from leaving the limits of the residential district for more than seven days without the permit of the sentence enforcing body; to restrain from visiting public places selling alcoholic beverages if it is not related to work.’

7 This paragraph also recites that Mr. Vestartas breached the conditions of his parole because:-

‘M. Vestartas violated the obligation to stay at home from 10 PM to 6 AM, therefore he was given a warning. However, after the warning M. Vestartas failed to stay at home during the indicated hours and register in the correctional inspection, therefore on 12 September 2011, the District Court of Siauliai Region issued a decision revoking the parole from the correctional institution and ordered M. Vestartas to serve the remaining part of the imprisonment. The serving of the remaining part of the imprisonment sentence did not commence as the convict absconded from serving the sentence.’

8 The facts set out in these extracts from the EAW are not disputed by Mr. Vestartas. The EAW also recites that he was present during his trial and for the conviction judgments and that no appeals have been made against the conviction judgments by appellate or cassation procedures. I am satisfied that the fact that he was not present at the final revocation hearing does not affect entitlement to an order for surrender in this case. In Samet Ardic, a judgment of 22 December 2017, the CJEU ruled on a preliminary reference from the Amsterdam District Court that a procedure to revoke a partly-suspended sentence on the grounds of infringement of conditions was not part of the original trial giving rise to the sentence, unless the revocation decision involved a change in the nature or level of the sentence initially imposed. No such change is apparent from the information available in relation to the present case. Mr. Vestartas has not been served with the revocation order as yet, but the EAW recites that he will be served with that decision without delay after surrender.

Correspondence:

9 The nature and legal classification of the offences set out in the detailed narrative referred to above are stated to be contrary to Articles 22, 178 (as amended on 05/07/2004 and 10/04/2003), 180 and 187 of the Criminal Code of the Republic of Lithuania, which Articles are appended to paragraph (d) of the EAW. None of the boxes set out in section I of paragraph (d) were ticked and, accordingly, section II sets out full descriptions of the offences. These are an attempt to commit an offence, two varieties of theft, robbery and destruction of or damage to property, as created by the relevant articles of the Criminal Code of the Republic of Lithuania. As this is not a ‘ ticked box’ warrant, the Minister is required to establish correspondence of these offences. I have abstracted a description of each of the offences from the EAW, and the suggested corresponding offence is...