The Minister for Justice and Equality v Ivo Smits

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 15 April 2021
• Neutral Citation: [2021] IESC 27
• Date: 15 April 2021
• Court: Supreme Court
• Docket Number: S:AP:IE:2020:000085

In the Matter of the European Arrest Warrant Act 2003 as Amended

The Minister for Justice and Equality

Applicant/Respondent

and

Ivo Smits

Respondent/Appellant

[2021] IESC 27

Clarke C.J.

MacMenamin J.

Dunne J.

O'Malley J.

Baker J.

S:AP:IE:2020:000085

High Court 2018/136 EXT

THE SUPREME COURT

European arrest warrant – Surrender – Abuse of process – Appellant appealing against the decision of the High Court ordering the surrender of the appellant on foot of a European arrest warrant – Whether the potential impact on the appellant’s rights caused by a lapse of time between the issuing and execution of the warrant was a matter that required judicial oversight

Facts: The appellant, Mr Smits, appealed to the Supreme Court against the decision of the High Court (Burns J) ordering the surrender of the appellant on foot of a European arrest warrant (EAW) pursuant to the provisions of the European Arrest Warrant Act 2003 as amended ([2020] IEHC 389). The EAW was issued in the Republic of Latvia in 2015 but was not transmitted to the State until 2018. The central issue in the appeal was whether the potential impact on the appellant’s rights caused by a lapse of time between the issuing and execution of the warrant was a matter that required judicial oversight, and therefore a judicial process in the issuing State.

Held by O’Malley J that the Court was concerned about the fact that a request for information as to the delay between the issue of the EAW and its transmission to the courts of the State was simply left unaddressed by the issuing judicial authority. However, she found that the facts would not go so far as to support any finding of an abuse of the process. Further, she did not see the facts of the case as presenting a genuine issue concerning a potential violation of the appellant’s rights. In the circumstances, she could not see that there was any question of law that could properly be referred for ruling to the Court of Justice of the European Union.

O’Malley J held that the appeal would be dismissed.

Appeal dismissed.

Judgment of Ms. Justice Iseult O'Malley delivered the 15 ^th of April 2021

Introduction

1 This appeal is brought against the decision of the High Court (Paul Burns J., hereafter “Burns J.”), ordering the surrender of the appellant on foot of a European Arrest Warrant (“EAW”) pursuant to the provisions of the European Arrest Warrant Act 2003 as amended (see Minister for Justice and Equality v. Smits [2020] IEHC 389). The EAW was issued in the Republic of Latvia in 2015 but was not transmitted to this State until 2018. The central issue in the appeal is whether the potential impact on the appellant's rights caused by a lapse of time between the issuing and execution of the warrant is a matter that requires judicial oversight, and therefore a judicial process in the issuing State.

2 The appellant does not suggest that it is for the courts of the executing State to conduct a proportionality assessment of the application for surrender. Rather, he argues that, where there has been a substantial lapse of time, any express or implicit assessment of proportionality by the courts of the issuing State at the time the EAW was issued may have become superseded or have been rendered void. It is contended that, where this may have occurred, the Framework Decision and the concept of effective judicial protection require that there be a procedure in the courts of the issuing State for the reassessment of proportionality and the assessment of the impact of surrender on fundamental rights. It is further argued that this, in turn, means that the courts of the executing State must be satisfied that such a court procedure is available in the issuing State.

3 On the facts of this case, it is common case that there is no mechanism under the criminal justice system of Latvia pursuant to which the appellant can seek such a reassessment of his sentence by a court if returned. The appellant says that in these circumstances his rights under Articles 8, 6 and 13 of the European Convention on Human Rights will not receive effective protection.

4 The respondent contends that the Framework Decision does not require or provide for a refusal to surrender based on a lapse of time between the issuing and transmission of a warrant.

Background

5 In May 2008 the appellant appeared in court and admitted guilt in respect of charges concerning the theft and misuse of his former girlfriend's credit card. He was sentenced to two years imprisonment. The sentence was suspended, but the matter was re-entered on the 20th October 2008 on the basis that the appellant had failed to comply with the conditions attached to it. In particular, he had not registered with the probation service or notified it of a proposed change of address (as required by statute) and had not paid compensation to the victim of the crime (as ordered by the sentencing court). The court accordingly activated the sentence in full.

6 The appellant has said on affidavit that he had become homeless as a result of his conviction, did not receive correspondence from the probation service and was unaware of the re-entry. (However, no argument is raised about the applicability of the rules relating to in absentia hearings in the issuing State.) When he became aware that the sentence had been activated, he lodged an appeal. Meanwhile he travelled to Ireland to take up employment, and has been here since November 2008.

7 The case then came before the appellate court. The appellant did not appear – he says that he was not notified of the date, but, again, no argument is raised on this aspect – and there was no explanation proffered to the court for his non-compliance with the conditions of his sentence. It was ordered that he be imprisoned for two years, less two days already served. This decision became enforceable on the 17th December 2008, and was forwarded to the police. It is accepted that this process involved, or was equivalent to, the issue of a national arrest warrant.

8 In November 2014 the court in Latvia received information from the International Cooperation Bureau of the Latvian police indicating that the appellant was residing in Ireland. On the 17th April 2015 the court proposed to the Prosecutor General's office that an EAW should be issued.

9 According to a legal opinion obtained by the appellant, the Prosecutor General is, by law, an independent institution of the judicial branch of government and is not subject to interference by the executive. The opinion also explains that the procedure whereby a court makes a proposal for the issue of an EAW is provided for under the relevant Latvian legislation, which stipulates that a request for extradition may not be submitted if the seriousness or nature of the offence is disproportionate to the expense involved (Chapter 65 Art. 682(3), Criminal Procedure Law (Latvia, Translated)). The International Cooperation Division within the office of the Prosecutor General refuses approximately 20% of the requests made to it, by reference to the principle of proportionality. The factors taken into account include the seriousness and nature of the offence, the harm caused to third parties, the administrative costs of extradition, the potential penalty to be imposed, and the suitability of alternative mechanisms such as the transfer of a custodial or other sentence to the Member State of residence for execution in that State. The decision of the Prosecutor General to issue an EAW is not thereafter subject to appeal or to review by the courts.

10 The EAW issued on the 8th June 2015. It was transmitted to this State on the 5th April 2018 and was endorsed by the High Court on the 30th April 2018. A subsequent request for information as to the conditions attached to the suspended sentence and the manner in which they had been breached was responded to. However, despite a direct request, no explanation has been offered for the lapse of nearly three years between the issue of the warrant and its transmission.

11 Throughout this period the appellant has resided and, at various times, worked, paid tax, claimed social welfare and studied in Ireland. Since becoming unable to work in physically demanding jobs due to long term issues with his back (which date back to 2006) he has obtained a Master's degree in Business Studies. In October 2014 he renewed his passport through the Latvian embassy in Ireland. This may have brought about the police communication in November 2014 to the Latvian court, with the information as to his whereabouts. In September 2017 he married an Irish citizen and for that purpose obtained a “freedom to marry” certificate, also from the Latvian embassy. He avers that they hope to have children. He states that he is positively involved in the local community. He has not come to any adverse garda attention and, indeed, has been commended by the gardaí for his assistance in relation to some incidents in the locality.

12 The appellant has adduced certain evidence about his health. He has undergone serious surgery for the removal of a growth and was, as of June 2020, on a waiting list for spinal surgery. He expresses a fear that he will not receive adequate treatment if imprisoned in Latvia. However, there is no evidence in this latter regard.

13 As the appellant was tried in person, and failed to appear at his appeal, he has no right to a retrial, a further appeal, or any other form of judicial remedy within the criminal justice system of Latvia in respect of the sentence imposed upon him.

The High Court judgment

14 In the High Court, the appellant argued that there was a lack of effective judicial involvement or protection in respect of the issuing of the warrant by the Prosecutor General's office, and that surrender would breach his rights under Articles 6 and 8 of the European Convention on Human Rights.

15 Burns J....