The Minister for Justice v Gintautas Maciulskas

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Paul Burns
• Judgment Date: 06 September 2021
• Neutral Citation: [2021] IEHC 580
• Docket Number: [2021 No. 104 EXT]

Between

The Minister for Justice

Applicant

and

Gintautas Maciulskas

Respondent

[2021] IEHC 580

[2021 No. 104 EXT]

THE HIGH COURT

European arrest warrant – Surrender – Fair trial rights – Applicant seeking an order for the surrender of the respondent to the Republic of Lithuania pursuant to a European arrest warrant – Whether surrender was precluded as the trial of the respondent was conducted in breach of his fair trial rights

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr Maciulskas, to the Republic of Lithuania pursuant to a European arrest warrant dated 3rd December, 2020 (the EAW). The EAW was issued by Judge Kantaravicius, of the Kaunas Regional Court, as the issuing judicial authority. The EAW sought the surrender of the respondent in order to enforce a sentence of one year and three months’ imprisonment, of which one year, two months and 28 days remained to be served. Counsel on behalf of the respondent submitted that, as the sentence in question was a cumulative sentence aggregating three separate sentences of nine months’ imprisonment, seven months’ imprisonment and one-year imprisonment respectively, a sentence of three months or less must have been imposed in respect of at least one of the sentences in order to arrive at the cumulative sentence of one year and three months’ imprisonment. In addition to the objection based upon the minimum gravity requirements of the European Arrest Warrant Act 2003, as amended, the respondent also objected to surrender on the following grounds: (i) that the arrest of the respondent on foot of the Schengen Information System II alert was unlawful and the respondent was unlawfully before the Court; (ii) that surrender was precluded by reason of s. 37 of the 2003 Act as the trial of the respondent was conducted in breach of his fair trial rights as protected by s. 6 of the European Convention on Human Rights (the ECHR) and/or the Constitution; and (iii) that surrender was precluded by reason of s. 37 of the 2003 Act due to prison conditions in Lithuania and, in particular, the level of inter-prisoner violence therein.

Held by Burns J that the issue of minimum gravity in composite sentences was dealt with definitively by the Supreme Court in Minister for Justice v Sas [2010] IESC 16, which made it clear that it is the composite sentence that is relevant for determining whether the minimum gravity requirements have been met in respect of a sentence. Burns J held that the fact that the warrant produced to the Court was a warrant which had already been endorsed by the High Court did not in any way impugn the validity of the arrest or render the respondent unlawfully before the Court. Burns J was not satisfied that the trial of the respondent was conducted in breach of his fair trial rights as guaranteed under the ECHR or the Constitution. Burns J was not satisfied that there were substantial reasons for believing that there was a real risk that, if surrendered, the respondent would be exposed to inhuman or degrading treatment in breach of Article 3 ECHR. Burns J was satisfied that the Court’s concerns as regards the level of inter-prisoner violence had been allayed by the information furnished.

Burns J held that, having rejected the respondent’s objections to surrender, the Court would make an order pursuant to s. 16 of the 2003 Act for the surrender of the respondent to Lithuania.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 6th day of September, 2021

1 By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Lithuania (“Lithuania”) pursuant to a European arrest warrant dated 3rd December, 2020 (“the EAW”). The EAW was issued by Judge Darius Kantaravicius, of the Kaunas Regional Court, as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent in order to enforce a sentence of one year and three months' imprisonment, of which one year, two months and 28 days remains to be served.

3 The respondent was arrested on 25th April, 2021 on foot of a Schengen Information System II alert (“the SIS alert”) and brought before the High Court on 26th April, 2021. The EAW was produced to the High Court on the same day.

4 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

5 I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.

7 Counsel on behalf of the respondent submitted that, as the sentence in question was a cumulative sentence aggregating three separate sentences of nine months' imprisonment, seven months' imprisonment and one-year imprisonment respectively, a sentence of three months or less must have been imposed in respect of at least one of the sentences in order to arrive at the cumulative sentence of one year and three months' imprisonment. I do not find any basis for this submission. As pointed out at para. 11–18 in Farrell and Hanrahan, The European Arrest Warrant in Ireland, 1st Ed. (Clarus Press, Dublin, 2011), the issue of minimum gravity in composite sentences was dealt with definitively by the Supreme Court in Minister for Justice v. Sas [2010] IESC 16, which made it clear that it is the composite sentence that is relevant for determining whether the minimum gravity requirements have been met in respect of a sentence. I dismiss the respondent's objection based upon perceived lack of minimum gravity.

8 I am satisfied that correspondence can be established between the offences referred to in the EAW and offences under the law of this State, viz. assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997, making a threat to kill contrary to s. 5 of the Non-Fatal Offences Against the Person Act, 1997 and criminal damage contrary to s. 2 of the Criminal Damage Act, 1991, respectively. No issue was raised in respect of correspondence.

9 At part D of the EAW, it is indicated that the respondent appeared at the hearing which resulted in the decision which is sought to be enforced.

10 In addition to the objection based upon the minimum gravity requirements of the Act of 2003, the respondent also objected to surrender on the following grounds:-

• (i) that the arrest of the respondent on foot of the SIS alert was unlawful and the respondent was unlawfully before the Court;

• (ii) that surrender is precluded by reason of s. 37 of the Act of 2003 as the trial of the respondent was conducted in breach of his fair trial rights as protected by s. 6 of the European Convention on Human Rights (“the ECHR”) and/or the Constitution; and

• (iii) that surrender is precluded by reason of s. 37 of the Act of 2003 due to prison conditions in Lithuania and, in particular, the level of inter-prisoner violence therein.

11 The respondent's solicitor, Mr. Niall Fox, swore an affidavit dated 10th June, 2021 in which he exhibited a report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), dated 25th June, 2019, based upon a visit to Lithuania in 2018.

Section 14 of the Act of 2003

12 Counsel on behalf of the respondent submitted that the respondent had been unlawfully arrested and brought before the High Court in circumstances where the respondent had been arrested on foot of SIS alert when, in fact, the High Court had already endorsed the EAW in this matter on 19th April, 2021. He submitted that if the EAW had already been endorsed by the High Court, then he ought to have been arrested pursuant to s. 13(1) of the Act of 2003.

13 I am satisfied that the Act of 2003 provides for two alternative means of bringing a requested person before the High Court. Section 13 of the Act of 2003 provides a mechanism whereby a European arrest warrant may be presented to the High Court for endorsement for execution of the warrant. If so endorsed, then the warrant may be executed by any member of An Garda Síochána whether or not he/she has physical possession of the warrant. The person arrested in such a fashion shall, as soon as may be after their arrest, be brought before the High Court. Alternatively, s. 14 of the Act of 2003 provides that a member of An Garda Síochána may arrest a person without a warrant where he/she believes, on reasonable grounds, that the person is a person named in a SIS alert and the person so arrested shall, as soon as may be after his arrest, be brought before the High Court which then sets a date for production of the European arrest warrant on foot of which the alert was entered. Section 14 of the Act of 2003 does not make any reference to whether or not the warrant has or has not already been endorsed by the High Court. The power to arrest pursuant to s. 14 of the Act of 2003 is not in any way circumscribed by a requirement that such power may only be exercised where a European arrest warrant has not been already endorsed by...