The Minister for Justice and Equality v Campbell

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 26 June 2020
• Neutral Citation: [2020] IEHC 344
• Date: 26 June 2020
• Docket Number: Record No. 2016/203 EXT
• Court: High Court

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

-AND-

LIAM CAMPBELL

RESPONDENT

[2020] IEHC 344

Donnelly J.

Record No. 2016/203 EXT

THE HIGH COURT

European arrest warrant – Surrender – Abuse of process – Applicant seeking the surrender of the respondent to Lithuania – Whether there was an abuse of process

Facts: The respondent, Mr Campbell, was sought by the Republic of Lithuania, on foot of a European Arrest Warrant (EAW) issued on the 26th August, 2013, for the purposes of prosecuting him for three offences: (a) preparation for a crime under Article 21(1) and Article 199(2) of the Criminal code of Lithuania which has a maximum sentence for a term of up to ten years; (b) terrorism under Article 250(6) of the Lithuanian Criminal Code which has a maximum sentence for a term of up to twenty years; (c) illegal possession of firearms under Article 253(2) of the Lithuanian Criminal Code which has a maximum sentence for a term of up to eight years. The respondent’s points of objection to his surrender were condensed to four substantive points during the course of the hearing in October and December 2017. These were: (a) prison conditions and, in particular, that one cannot rely upon assurances given by the Republic of Lithuania; (b) a point under s. 21A of the European Arrest Warrant Act 2003; (c) a fair trial point, particularly relating to translation of documents and the EU Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings; and (d) an abuse of process point related to the fact that this was the second time in the State’s jurisdiction, and the third time in total, that Lithuania had sought his surrender from another EU State. He spent four years in custody in Northern Ireland and was only released when he succeeded in his objection that to surrender him would breach his Article 3 rights because of the prison conditions in Lithuania. The respondent also raised general issues of compliance with the 2003 Act without proceeding to the substantive arguments. The respondent claimed that the offences detailed in the EAW for which he was alleged to have committed were not punishable offences in the State and the issue of correspondence under s. 38, and to a lesser extent s. 44 of the 2003 Act, therefore arose.

Held by the High Court (Donnelly J) that there was no lack of clarity and there was correspondence. Donnelly J held that the alleged offences were clearly based in the territory of Lithuania and partially in Ireland, and to that extent were not extraterritorial offences. She was satisfied that s. 37 of the 2003 Act did not prohibit the surrender of the respondent to Lithuania because of any issue arising out from prisons conditions in that Member State. She was satisfied that the respondent’s surrender was not prohibited by the provisions of s. 21(A) of the 2003 Act. She held that the respondent had not even come close to reaching the level of proof required to satisfy the Court that his surrender must be prohibited on the basis that there was a real risk that he would face an unfair trial should he be surrendered. Having considered all the factors relevant to the abuse of process, she was satisfied that individually or cumulatively there was no abuse of process.

Donnelly J held that an order for the surrender of the respondent in accordance with the provisions of s. 16(1) of the 2003 Act may be made.

Application granted.

JUDGMENT of Ms. Justice Donnelly dated this 26th day of June, 2020

Introduction

1 The respondent is sought by the Republic of Lithuania (“Lithuania”), on foot of a European Arrest Warrant (“EAW”) issued on the 26th August, 2013, for the purposes of prosecuting him for three offences:

a. Preparation for a crime under Article 21(1) and Article 199(2) of the Criminal code of Lithuania (“the Lithuanian Criminal Code”) which has a maximum sentence for a term of up to ten years.

b. Terrorism under Article 250(6) of the Lithuanian Criminal Code which has a maximum sentence for a term of up to twenty years.

c. Illegal possession of firearms under Article 253(2) of the Lithuanian Criminal Code which has a maximum sentence for a term of up to eight years.

2 Further details of the three offences are described in part (e) of the European Arrest Warrant. The respondent is alleged to have made arrangements, while acting in an organised terrorist group, the Real Irish Republican Army (“RIRA”), to acquire a substantial number of firearms and explosives from Lithuania and smuggle it into Ireland. The EAW states that during the period from the end of 2006 to 2007, the respondent made arrangements with Seamus McGreevy, Michael Campbell (his brother), Brendan McGuigan and other unidentified persons (“named persons”) to travel to Lithuania for the purposes of acquiring firearms and explosives, including, automatic rifles, sniper guns, projectors, detonators, timers, trotyl, and to return them to Ireland, without specific permission from the Lithuanian authorities and without declaring them to the Irish customs. In the middle of 2007, the respondent organised conspiracy meetings concerning the logistics of how to acquire the firearms and explosives and provided money for the purchase of the weapons to the named persons and instructed them to go to Lithuania to test the weapons, purchase them, arrange training of how to use the weapons with the weapons dealer, and return them to Ireland without the detection of custom. In this way, the EAW states that the respondent, together with the named persons, provided support to the terrorist group.

Procedural History of the Attempt to Surrender the Respondent to Lithuania

3 The long procedural history of the attempt to surrender the respondent is complicated. It involves a first EAW (hereinafter, “EAW 1”) issued by Lithuania and executed by the arrest seriatim of the respondent in two jurisdictions (Ireland and Northern Ireland). Subsequent to the refusal to surrender the respondent by the judicial authorities of the United Kingdom of Great Britain and Northern Ireland (hereinafter “the UK”), this EAW (hereinafter, “EAW 2”) was issued. In 2016, EAW 2 was executed by the arrest of the respondent in this jurisdiction. For the sake of clarity, the following is a chronology of events:

Chronology

18 December 2008	EAW 1 issues by a Lithuanian judicial authority
20 January 2009	Respondent arrested in Ireland on EAW 1 - bail granted
22 May 2009	Respondent arrested in Northern Ireland on EAW 1 (attempt 2) bail refused
13 July 2009	Lithuania withdraws EAW 1 in Ireland
16 Jan 2013	Belfast Recorder's Court refuses surrender on EAW 1 (attempt 2)
22 Feb 2013	On appeal, the High Court of Northern Ireland refuses surrender on EAW 1 (attempt 2)
20 March 2013	Assurance provided by Lithuania that those extradited from UK to Lithuania will be held in Kaunas Prison
16 April 2013	Irish High Court refuses surrender of Brendan McGuigan
31 July 2013	Supreme Court (UK) refuses to allow appeal on EAW 1 (attempt 2)
5 August 2013	Respondent is released and returns home
26 August 2013	EAW 2 issues by a Lithuanian judicial authority (a public prosecutor)
31 May 2016	Assurance given to the UK to keep persons in Kaunas Prison is revoked
17 October 2016	EAW 2 received in this jurisdiction
25 November 2016	EAW 2 endorsed by High Court
2 December 2016	Respondent arrested on EAW 2 - bail granted
2 May 2017	Minister seeks clear and unambiguous undertaking that Respondent will be held in Kaunas
10 May 2017	Additional information from Vilnuis Regional Prosecutor's Office on fair trial rights and decision to prosecute
12 May 2017	Additional information from Prosecutor General's Office on conditions in Lukiskes and trial rights
13 June 2017	Lithuania provides details of appropriate person to be contacted on prison inspection
23 June 2017	Lithuania refuses inspection for Professor Morgan
18-20 October 2017	Section 16 hearing in the High Court
25 October 2017	Section 20 request on prison conditions
22 November 2017	Reply from Lithuanian authorities providing assurance that the respondent will be held in Kaunas Remand Prison.
5-7 December 2017	Resumed Section 16 hearing in the High Court
7 December 2017	Case adjourned to await decision in Lisauskas (see below)
1 July 2019	Lukiskes prison is closed
9th June, 2020	Resumed hearing in the High Court

4 The respondent was arrested in this jurisdiction on the 2nd December, 2016. By the following December these proceedings were heard to completion but had to be adjourned with the consent of the respondent, pending the outcome of a reference made by the Supreme Court in the case of Minister for Justice and Equality v. Lisauskas [2018] IESC 42 concerning the validity of an EAW which had been issued by a public prosecutor in Lithuania. The decision of the CJEU in that case spawned further litigation. This case had to be adjourned until all legal challenges were finalised. That issue is no longer a live one for the purpose of this case. I am satisfied that the EAW has been issued by an issuing judicial authority within the meaning of the European Arrest Warrant Act, 2003 as amended (hereinafter, “the Act of 2003”) and the Council Framework Decision of the 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (hereinafter, “the Framework Decision”).

Uncontested Matters

5 Before dealing with the specific points raised by the respondent in objecting to his surrender, I will address the formal requirements of the Act of 2003 with which this Court must be satisfied if it is to make an order of surrender.

A Member State that has given effect to the 2002 Framework Decision

6 I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) (No. 3) Order 2004 (S.I. 206 of 2004), the...