Judgment delivered the 11th day of November, 2009 by Denham J.
1. This is an appeal by Modestas Kizelavicius, the respondent/appellant, referred to in this judgment as "the appellant", from the decision of the High Court (Peart J.) delivered on the 8th April, 2008, to surrender the appellant to Lithuania in respect of three of the four offences outlined on the European arrest warrant.
2. At the outset of the appeal counsel for the appellant informed the court that there were two points: (a) the "fled" point under s.10 of the European Arrest Warrant Act, 2003, also referred to as the "Tobin point" as a result of the decision in Minister for Justice, Equality and Law Reform v. Tobin [2008] 4 IR 42, and (b) that the appellant's surrender is prohibited under s.38 of the European Arrest Warrant Act, 2003 and the "Ferenca point" arising under the case Minister for Justice, Equality and Law Reform v. Ferenca [2008] 4 IR 480.
3. Counsel stated that the "fled" point under s.10 of the European Arrest Warrant Act 2003, the "Tobin point", was not being pursued. Thus, the second point is the primary issue on this appeal.
4. There are four offences on the European arrest warrant. The first offence is one of robbery, the second offence is one of assault, the fourth offence is one of using a forged driving licence. They were held to be corresponding offences by the High Court. The third offence was held not to correspond, the High Court pointing out that it was unusual because the appellant was convicted of an act of forgery which took place not in Lithuania but in Dublin.
5. The appellant was sentenced in relation to these offences. The robbery offence occurred on the 8th March, 2003, the assault occurred on the 23rd July, 2002, and the fourth offence, the use of the forged driver's licence, was in the second half of October, 2004. The offence which does not correspond, the third offence, also occurred in the second half of October 2004.
6. The arrest warrant is based on the ruling of the Alytus Region District Court of the 9th January, 2007. This states as follows:-
"Type: ruling to cancel the deferral of execution of the custodial sentence and refer to serve the fixed term custodial sentence imposed by the judgment.
Note: the final sentence, i.e. imprisonment, as imposed by the judgment of the Alytus Region District Court of 20 May 2005 and combined with the judgment of the Alytus Region District Court of 31 October 2003, was deferred and an obligation to continue studying was imposed.
However, the convicted person did not perform the imposed obligation wilfully, departed abroad without the consent of the Correctional Inspectorate, therefore, the ruling of 9 January 2007 of the Alytus Region District Court cancelled the deferral of execution of the sentence of Modestas Kizelavicius imposed upon him by the judgment of the Alytus Region District Court of 20 May 2005 and referred him to serve the custodial sentence. The execution of the custodial sentence has not commenced, because Modestas Kizelavicius has absconded from serving the sentence.
Enforceable judgment: the judgment of the Alytus Region District Court of 31 October 2003; the judgment of the Alytus Region District Court of 20 May 2005.
Note: the convicted person Modestas Kizelavicius was present in person at the hearing of his criminal cases and the delivery of judgments in his respect."
7. The length of the sentence imposed is one year and three months. It is described as follows as:-
"Note: the custodial sentence of 7 months imposed by the judgment of the Alytus Region District Court of 20 May 2004 was combined with the custodial sentence of 1 year under the judgment of the Alytus Region District Court of 31 October 2003 and a final custodial sentence of 1 year and 3 months was imposed."
8. The breakdown of the sentencing in relation to each of the four offences is not given. The learned High Court judge held:-
"His surrender is sought so that he can serve a period of imprisonment said to be still outstanding in Lithuania, a period of one year and three months. That period of time has arisen, according to the warrant, because in respect of the first two of the four offences referred to in the warrant, a period of one year's imprisonment was imposed and then in respect of two further offences, a period of seven months was imposed. It is not explained in any way how the period of time imposed, namely one year and seven months, has produced a situation where there is one year and three months to be served, given that the [appellant] has not served any period of imprisonment since the sentences were imposed. It is open to speculation that the reason there is one year and three months to be served on foot of a one year and seven month sentence is that, perhaps, some time in pre-trial detention was taken into account. It is possible also that some discount by way of remission of sentence for good behaviour is anticipated, but these are matters that are not dealt with in the warrant and in my view it is not necessary that they should have been."
The learned High Court judge held that the minimum gravity requirement under s.38 of the European Arrest Warrant Act 2003 is satisfied.
9. Counsel for the appellant referred to the fact that originally there was a one year sentence in 2003 and seven months in 2005, and that this had ultimately become a combined sentence of one year and three months. Counsel for the appellant submitted that there is no information on:-
(a) the actual sentence for any of the offences individually;
(b) whether there was current or consecutive sentencing;
(c) the method or reason by which the sentence of one year and seven months became one year and three months;
(d) which offence or offences got the four months reduction; and
(e) in what way the one year sentence of 2003 relates to each of those offences or how the original seven months sentence related to the last two offences.
Counsel submitted that there was a lack of information - and that the State had not availed of s.20 of the European Arrest Warrant Act 2003 to obtain additional documentation and information.
10. The relevant portion of s.38 of the European Arrest Warrant Act, 2003 provides:-
".—(1) Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in respect of an offence unless—
(a) the offence corresponds to an offence under the law of the
State, and—
(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or
(ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment,
or …"
11. Section 38(1)(a) of the Act of 2003 requires that there be correspondence between the offences. The High Court has found that the first, second and fourth offences correspond. The High Court found that the third offence, a conviction of an act of forgery, took place in Dublin, i.e. outside the jurisdiction of the issuing state. The High Court held that there was no equivalent offence in this jurisdiction and for that reason the third offence does not satisfy the requirement of correspondence under s.38.
12. In addition to requiring correspondence, s.38 of the Act of 2003 addresses two alternative situations. Section 38(1)(a)(i) refers to a situation where a sentence has not yet been imposed, for example, where a person is sought to be prosecuted. On the other hand s.38(1)(a)(ii) applies to a case where the appellant has been sentenced and he or she is sought to serve the sentence, which arises in this case.
13. The appellant is sought to serve a sentence in Lithuania. It is not a series of separate sentences. It is a composite sentence. It is clear that, as was submitted on behalf of the Minister for Justice, Equality and Law Reform, hereinafter referred to at "the Minister", the Alytus Region District Court imposed a custodial sentence of one year on the 31st October, 2003 in respect of an assault committed on the 23rd July, 2002 and an offence of robbery committed on the 8th March, 2003. On the 20th May, 2005 the Alytus Region District Court imposed a custodial sentence of seven months in respect of the two forgery offences committed in October 2004. All these sentences were combined, an unexplained deduction of four months applied, which resulted in a sentence of one year and three months. Thus a combined sentence on the first two offences, and a combined sentence on the third and fourth sentences became a composite sentence relating to the four offences.
14. The sentence imposed in October 2003 related to the robbery and assault offences. If those were the only sentences on the warrant then no problem would arise.
15. Counsel for the Minister submitted that it is reasonable to infer that the sentence imposed in May 2005 related to the offences committed in October 2004. I would agree with that analysis. However, one of these offences is not a corresponding offence and so the appellant may not be returned to Lithuania to serve a sentence for that offence.
16. The problem is that the sentence of one year and three months is a composite sentence and is not fully explained. It appears to include the one year sentence for the first two offences and the original seven months sentence for the last two offences and was then reduced to one year and three months. Thus, this sentence is composed of the sentence for the three corresponding offences and the sentence for the offence which does not correspond and for which the appellant cannot be returned to Lithuania.
17. It is not possible to identify the sentence for the non corresponding offence. All four offences are included in the composite sentence of one year and three months.
18. The question is whether any order for surrender can be made on the European arrest warrant given that three of the four offences for which the sentence of one year and three months was imposed are offences for which a surrender order may be made.
19. The case was determined by the High Court on the 8th day of April, 2008. This Court delivered a judgment in The Minister for Justice, Equality and Law Reform v. Ferenca [2008] 4 IR 480 on the 31st July, 2008. Therefore the learned High Court judge did not have the benefit of the Ferenca judgment.
20. However, the case of the Minister for Justice, Equality and Law Reform v. Ferenca [2008] 4 IR 480 was opened to this Court on this appeal.
21. In Ferenca Murray C.J. held at pp.398 and 499:-
"As I pointed out at the outset and which is clear from the terms of the European arrest warrant, the sentence imposed is a single sentence, what one might call a composite sentence, imposed for the three offences collectively. If the [appellant] were to be surrendered to serve that sentence he would be surrendered to serve a sentence which was in part imposed for the first offence. I have already concluded above that the first offence is an offence for which s. 38(1) says the [appellant] should not be surrendered. There is obviously no basis on which this court can apportion part of the sentence of two years and nine months among the three offences so that he could be surrendered for the purpose of serving the amount of the sentence which related to the second and third offence.
Since that cannot be done, and he cannot be surrendered to serve any sentence in respect of the first offence, the request for his surrender must be refused.
Section 17 of the Act of 2003 does make provision for surrendering in respect of some offences while refusing surrender for another offence or offences when there are multiple offences mentioned in the European arrest warrant. That section is clearly only intended to apply where the request in relation to each offence in the warrant is distinct and separate. Then the request in respect of each offence would be severable. Thus in this case if the return of the [appellant] had been sought in respect of three offences and he had been sentenced separately for each of those offences then s. 17 would have permitted the court to make an order for his return to serve each of the separate sentences imposed for the second and third offence and refuse to surrender to serve the sentence in respect of the first offence. However, as I say, that is not the case here. The sentence for which his return is sought is not severable from the first offence and therefore he cannot be surrendered for the purpose of serving that sentence."
22. The principles stated in Ferenca are applicable to the warrant in this case.
23. The sentence is a composite sentence relating to four offences. The third offence is not a corresponding offence. There is no way in which the Court can apportion the sentence - it does not know how the composite sentence was established. The Court does not know what part of the one year and three months sentence relates to the first, second and fourth offences. There is no basis to apportion the sentence so that the appellant could be surrendered for the portion of the sentence relating to the first, second and fourth offences.
24. As the sentence cannot be severed, and as the Court cannot surrender the appellant to serve any sentence for the non corresponding third offence, the request for his surrender must be refused.
25. Section 17 of the Act of 2003 makes provision for surrendering for some offences and refusing others. However, that section applies where the request for each offence is distinct; where it is severable. In this case if the appellant was sought on the four offences, if he had been sentenced separately for each of the four offences then an order could have been made in relation to the first, second and fourth offences and their sentences. However, that did not occur in this instance.
26. For the reasons given I would allow the appeal.
