The Minister for Justice and Equality v Andrius Sciuka

• Jurisdiction: Ireland
• Judge: Ms. Justice Aileen Donnelly
• Judgment Date: 22 March 2021
• Neutral Citation: [2021] IECA 79
• Docket Number: [Record No. 2021/37]
• Court: Court of Appeal (Ireland)
• Date: 22 March 2021

The Minister for Justice and Equality

Respondent/Applicant

and

Andrius Sciuka

Appellant/Respondent

[2021] IECA 79

The President

McCarthy J.

Donnelly J.

[Record No. 2021/37]

THE COURT OF APPEAL

European arrest warrant – Surrender – Postponement – Appellant appealing against the High Court order postponing the surrender of the appellant to Lithuania – Whether there was no evidential basis for the making of the order

Facts: The High Court (Burns J), on the 18th January 2021, made an order pursuant to s. 16(1) of the European Arrest Warrant Act 2003 as amended, directing that the appellant, Mr Sciuka, be surrendered to Lithuania to serve the remainder of a sentence of imprisonment, on foot of a European arrest warrant which had been issued on the 14th February 2017 by an issuing judicial authority. The appellant appealed to the Court of Appeal against the order of Burns J made on the 10th of February 2021 pursuant to s. 18 (1) (a) of the 2003 Act in which he postponed the surrender of the appellant to Lithuania. Burns J ordered the postponement for humanitarian reasons pursuant to the said section. On behalf of the appellant, it was contended that this was an incorrect use of the “humanitarian reasons” provisions and that there was no evidential basis for the making of said order.

Held by Donnelly J that the humanitarian provisions of s. 18 applied to the situation where Lithuania could not carry out the surrender because the German authorities had stopped all flights from Ireland to Germany. Donnelly J held that the High Court judge correctly applied the law to the evidence before him and also applied the proportionality principle to assessing the period of the postponement.

Donnelly J held that the appeal would be dismissed. The Court confirmed the recommendation that the appellant be granted the benefit of the Legal Aid (Custody Issues Scheme) for solicitor and two counsel.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered by Ms. Justice Aileen Donnelly on the 22nd day of March 2021

A. Introduction

1 . This is an appeal against the Order of Burns (P) J. made on the 10th of February 2021 pursuant to section 18 (1) (a) of The European Arrest Warrant Act 2003 as amended (“The Act of 2003”), in which he postponed the surrender of Mr. Sciuka (“the appellant”) to Lithuania. Burns J. ordered the postponement for humanitarian reasons pursuant to the said section. On behalf of the appellant, it is contended that this was an incorrect use of the “humanitarian reasons” provisions and that there was no evidential basis for the making of said order.

B. Background

2 . On the 18th January 2021, Burns (P) J. made an order pursuant to s.16(1) of the Act of 2003, directing that the appellant be surrendered to Lithuania to serve the remainder of a sentence of imprisonment, on foot of a European Arrest Warrant “EAW”) which had been issued on the 14th February 2017 by an issuing judicial authority. On the 26th January 2021, Burns J. refused the Appellant's application for a certificate granting leave to appeal under s.16(11) of the 2003 Act.

3 . On the 10th February 2021, the Minister (respondent to this appeal) applied to Burns (P.) J. for an Order pursuant to s.18(1)(a) of the 2003 Act, directing that the surrender of the appellant be postponed. The basis for this application was a letter dated the 5th February 2021 which had been received from the issuing judicial authority. In this letter, the issuing judicial authority referred to a letter dated the 2nd February 2021 which the Klaipeda Regional Court had received from the International Liaison Office of Lithuanian Criminal Police Bureau, in which it was indicated that surrender had been scheduled for the 5th February 2021. In reference to the said letter from the Police Bureau, the issuing judicial authority stated as follows:-

“The Letter states that, due to the situation caused by the spread of virus COVID-19, Germany has cancelled all flights from Ireland and the United Kingdom; therefore, there is no possibility to arrange the takeover of Mr. Andrius Sciuka. According to the information provided by travel agency, there is no possibility to take over Mr. Andrius Sciuka until 19.02.2021. For these reasons, the International Liaison Office of Lithuanian Criminal Police Bureau requests to apply to Your Institution for the extension of the takeover deadline. In the light of the foregoing, we kindly ask You to extend the deadline for taking over Mr. Andrius Sciuka under the European Arrest Warrant until 01.04.2021.”

4 . At the hearing of the appeal, the Court was informed that the appellant did not take issue with the admissibility of the information contained in the letter. Indeed, the appellant relied upon the contents of the letter in support of his argument whereas the respondent also relied on the contents in support of her argument.

C. The High Court Hearing

5 . The hearing before Burns J. was brief but focused. Based upon the above letter, counsel for the Minister sought a postponement pursuant to s.18 of the Act of 2003. Counsel for the appellant objected on the basis that the application did not come within s.18 as the application was made due to the unavailability of flights i.e. and not the pandemic. Counsel for the appellant submitted that it was more properly a type of application brought under s.16(5) which required proof by the issuing state to show that the circumstances for the delayed surrender were beyond its control. Counsel for the appellant objected however to any such application of s.16(5) on the basis of lack of evidence.

6 . Counsel for the Minister submitted that the letter was not sufficient to allow the State rely upon s.16 to seek to delay surrender. Counsel submitted that here was precedent for the use of s.18 in COVID-19 related circumstances and also that s.18 was quite broadly worded. Counsel submitted that the reference to humanitarian considerations was broader than the reference to the requested person. It would also cover other people travelling as well.

7 . In a brief ruling Burns J. stated:-

“I am satisfied that the circumstances have arisen as a result of the COVID-19 pandemic do represent sufficient humanitarian grounds that I would allow the court to postpone the surrender in this particular case. I note that there is quite a lot of precedent for taking that approach over the last year in respect of European Arrest Warrants. […] I will list the matter for the 26th of March. I will give liberty to both sides to apply should it look like it is possible or that it is likely that surrender can be affected within that period or prior to that period and I will remand in custody then until 26th March […].”

D. The Appeal

8 . The Notice of Appeal contained three grounds as follows:-

• (a) There was no evidence before the High Court that any humanitarian grounds existed so as to warrant the postponement of the surrender;

• (b) That s18 required that it be read in accordance with Article 23(4) of the Framework Decision. That required serious humanitarian grounds to exist before surrender could be postponed and no such grounds existed; and

• (c) A postponement on humanitarian grounds demands that evidence establish that surrender be too harsh, unjust or oppressive for the subject of the EAW to be surrendered. There was no such evidence before the High Court.

9 . The Minister opposed the appeal on all grounds.

E. Submissions

10 . The Court received very helpful written and oral submissions from counsel on both sides. The appellant referred to the provisions of s.16 of the Act of 2003 in submitting that these provisions provided a mechanism whereby those time limits can be extended if the High Court is satisfied that “because of circumstances beyond the control of the state or the issuing state” the person has not been surrendered or will not be surrendered within those these limits.

11 . The appellant relied upon the Supreme Court decision in Minister for Justice and Equality v. Skiba [2018] IESC 68 and submitted that the phrase

“circumstances beyond the control of the State” as it appears in section 16(5) had to be given an interpretation consistent with the concept of force majeure as it appears in community law. The concept of force majeure had to be understood as:-

“[…] referring to abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care.”

Relying on Skiba, the appellant submitted that s.16(5) provides a statutory mechanism to extend time when the State for some unforeseen reason cannot meet the deadline for surrender.

12 . The appellant submitted that s.18 was intended to implement Article 23(4) of the Framework Decision; that concerned humanitarian situations. The appellant submitted that what the Minister was actually endeavouring to do in this case was to extend time for surrender because circumstances had arisen beyond the control of the issuing state which meant that the appellant would not be surrendered within the time allowed for surrender. Instead of making the application pursuant to s.16, the Minister presented it as an application pursuant to s.18 of the Act of 2003. No “humanitarian situation” had arisen; rather what had happened was that a third country had cancelled flights to and from Ireland.

13 . The appellant relied upon the decision of Edwards J. in MJE v. DL [2011] IEHC 248 in submitting that evidence of humanitarian grounds must be shown. The appellant submitted that DL required that the evidence has to be establish all of the following:-

• (i) The existence of humanitarian grounds or in other words something which impinges directly on some aspect of an individual's human condition or identity; and

• (ii) That those grounds warrant postponement of...