The Minister for Justice and Equality v Danas Kairys

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 22 December 2022
• Neutral Citation: [2022] IESC 531
• Court: Supreme Court
• Docket Number: S:AP:IE:2022:000019

In the Matter of the European Arrest Warrant Act 2003 (As Amended)

Between/

The Minister for Justice and Equality

Respondent

and

Danas Kairys

Appellant

[2022] IESC 531

Charleton J.

O'Malley J.

Baker J.

Hogan J.

Murray J.

S:AP:IE:2022:000019

High Court Record No.: 2016 No. 97 EXT

AN CHÚIRT UACHTARACH

THE SUPREME COURT

European arrest warrant – Surrender – Council Framework Decision 2008/909/JHA – Respondent seeking an order for the surrender of the appellant to the Republic of Lithuania pursuant to a European arrest warrant – Whether the failure of the State to enact legislation implementing Council Framework Decision 2008/909/JHA gave rise to any entitlement to resist the execution of the European arrest warrant

Facts: The Republic of Lithuania sought the surrender of the appellant, Mr Kairys, for enforcement of the remaining balance of a combined sentence of three years and seven months, imposed upon him in June 2015, in respect of 13 offences. A European arrest warrant (EAW) was endorsed by the High Court in June 2016 and the appellant was arrested and brought before the court in March 2021. The appellant’s case was that he should not be surrendered, because the failure of the State to implement Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (the 2008 FD) meant that, because he was unable to make an application to serve the sentence in question in the State, he had been denied his right to dignity and surrender should be refused. He said that since 2016 he had formed a family unit with his partner and two young children in the State, that he wished to remain in the State and that his prospects of social rehabilitation would be better served by his imprisonment in the State. The respondent, the Minister for Justice and Equality, acknowledged that the State had failed in its obligation to transpose the 2008 FD but contended that such failure was irrelevant to the obligation of the courts to order surrender. The appellant’s objections to surrender were unsuccessful, for the reasons set out in the judgment of Burns J: [2022] IEHC 57. Leave to appeal from the decision of the High Court directly to the Supreme Court was granted in regard to the question of whether the failure of the State to enact legislation implementing the 2008 FD gives rise to any entitlement to resist the execution of the EAW: [2022] IESCDET 75.

Held by Baker J that it was accepted by the parties that the 2008 FD was not directly effective. She held that this had a number of consequences which were fatal to the argument that surrender be refused. She rejected the argument of the appellant that surrender be refused on account of the failure of Ireland to comply with its obligations to put in place a scheme under which a requested person could apply to be permitted to serve a sentence imposed in another Member State. She held that the 2008 FD cannot operate with direct effect on domestic legislation, it does not impose an obligation on an executing State to permit service by a convicted person of a sentence in that State, and does not mandate a particular result; at best the obligation on a Member State is to put in place a structure where application can be made. She held that the link to a supposed breach of the right to dignity was remote and tenuous. She noted that there was no discussion in the appellant’s submissions as to how it was alleged the well-established principles governing legitimate expectation, set out inter alia in Glencar Exploration plc v Mayo County Council (No. 2) [2001] IESC 64, were met. She held that the expectation would be remote and too tenuously linked to the failure to implement 2008 FD to establish any basis to refuse surrender. She held that the appeal must fail by reason of the fact that the appellant could not establish a legal basis on which he could resist surrender in the light of the nature of the closed system established by the EAW legal process.

Baker J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Baker delivered on the 22 ^nd day of December. 2022

1 The Republic of Lithuania seeks the surrender of the appellant for enforcement of the remaining balance of a combined sentence of three years and seven months, imposed upon him in June 2015, in respect of 13 offences. A European Arrest Warrant (“EAW”) was endorsed by the High Court in June 2016 and the appellant was arrested and brought before the court in March 2021. His objections to surrender were unsuccessful, for the reasons set out in the judgment of Paul Burns J. (see Minister for Justice and Equality v. Kairys [2022] IEHC 57).

2 The appellant's case is that he should not be surrendered, because the failure of this State to implement Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (hereafter “the 2008 FD”) means that, because he is unable to make an application to serve the sentence in question in this jurisdiction, he has been denied his right to dignity and surrender should be refused. He says that since 2016 he has formed a family unit with his partner and two young children in the State, that he wishes to remain here and that his prospects of social rehabilitation would be better served by his imprisonment here.

3 The respondent acknowledges that the State has failed in its obligation to transpose the 2008 FD but contends that such failure is irrelevant to the obligation of the courts to order surrender.

4 Leave to appeal from the decision of the High Court directly to this Court was granted in regard to the question of whether the failure of the State to enact legislation implementing the 2008 FD gives rise to any entitlement to resist the execution of the EAW: [2022] IESCDET 75.

5 Letters exchanged between the appellant's solicitor and Panevezys Regional Court which were presented before the High Court where it was indicated that the request by the appellant that he be permitted to serve a sentence imposed by the Lithuanian courts in Ireland could not be considered unless made by an authorised authority, namely the Department of Prisons of the Republic of Lithuania, in accordance with the procedure established by law. This means that an application may be made only when the sentence has been activated and the appellant is lodged in prison following surrender.

6 Article 26 of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (hereafter “the EAW FD”) provides that entitlement for credit to be afforded for time served in another jurisdiction is manifestly a manner for the issuing state (in this case, Lithuania) following surrender:

“1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.

2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender.”

7 It is the failure of this State to establish a procedure by which the appellant can request to be permitted to remain in Ireland and serve his sentence here that forms the basis of his appeal

Legal context

8 The EAW FD was introduced through mutual agreement among Member States in 2002. It created a new EU wide system of surrender which was intended to be more efficient and streamlined than that preciously in operation under bilateral or multilateral extradition treaties.

9 The EAW FD reflects and gives concrete effect to the principles of mutual recognition of, and a high level of confidence in, the legal systems of the other Member States. The scheme for which it provides is for a swift and routine process of surrender upon request from another Member State: In Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Caldararu (ECLI:EU:C:2016:198).

10 Article 1 of the EAW FD provides a mandatory obligation on the part of Member States to execute any EAW and to do so “on the basis of mutual recognition” and in accordance with its provisions. The Article defines an EAW as a “judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

11 While Article 1.3 provides that the obligation to surrender does not modify “fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union”, the fact that surrender is mandatory is stated in unequivocal terms in Article 1.2:

“Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”

12 With these ends in mind the EAW FD sets out in Article 3 express grounds on which Member States are mandated to refuse execution:

“The judicial authority of the Member State of execution (hereinafter “executing judicial authority”) shall refuse to execute the European arrest warrant in the following cases:

• 1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where...