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MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.
Irvine J.
THE SUPREME COURT
[Appeal No. 108/19]
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003, AS AMENDED
BETWEEN:
THE MINISTER FOR JUSTICE AND EQUALITY
APPELLANT
V.
MANTAS VESTARTAS
RESPONDENT
(UNAPPROVED) Judgment of Mr. Justice John MacMenamin dated the 2nd day of April,
2020
Introduction
1. In a judgment dated the 29th March 2019, the High Court (Hunt J.), refused an
application brought by the Minister for Justice and Equality for the respondent‘s surrender
to the Republic of Lithuania where, as a young person, he had committed a substantial
number of offences, and had partly served a sentence subsequently imposed on him. He
was later released on parole. In contravention of his parole conditions, he left Lithuania
and moved to Ireland. Later, whilst in this State, he formed a relationship with his
partner. The couple have two children. The elder child was born before the respondent
moved to Ireland, but he is now in loco parentis to that girl, who is aged twelve. The
couple‘s younger daughter is now aged four years.
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2. Bearing in mind these and other features of the case, including delay, the High Court
judge held that, to make an order for the return of the respondent to Lithuania would
infringe the private and family rights of the respondent, his partner and the children
under Article 8 of the European Convention on Human Rights (―the ECHR‖; ―the
Convention‖). He therefore refused to make the order sought. He held that these
exceptional features were such that the public interest, which would normally compel
surrender, was heavily and unusually compromised having regard to the adverse effects
of making such an order. He held that, during the time the respondent was in Ireland, he
had formed relationships which constituted a de facto family, giving rise to rights under
Article 8 of the ECHR. He concluded that these features were sufficiently weighty to
render a proposed surrender an unwarranted and disproportionate interference with such
rights.
3. Subsequently, the Minister applied to the High Court to certify that grounds existed for an
appeal to the Court of Appeal. It was contended that the judgment raised issues of
exceptional public importance concerning the interpretation of provisions of the European
Arrest Warrant Act, 2003, as amended (―the 2003 Act‖).
4. In the course of that application, the Minister submitted that the High Court judge had
taken into account a number of features which should not have formed part of the
assessment. These included findings that the respondent had part-served his sentence;
observations on the gravity, or otherwise, of the breach of the parole conditions imposed
on him; a finding that the respondent had shown signs of rehabilitation whilst in this
jurisdiction; and a conclusion that there had not been a satisfactory or full explanation of
the delays which had taken place prior to the issuing of the European Arrest Warrant
(―the EAW‖) on the 21st December, 2016, which was transmitted to Ireland more than
one year later.
5. In an addendum judgment delivered on the 27th May, 2019, Hunt J. rejected the
Minister‘s application and declined to grant a certificate for an appeal to the Court of
Appeal. He held that he had applied the balancing exercise required under s.16 of the
2003 Act as identified by this Court in Minister for Justice and Equality v. Ostrowski
considered in detail in the substantive judgment, fell to be considered in the context of
the effects and consequences of the particular period of delay on the facts of the
individual case before him (para. 9). He expressed the view that, if the relevance of delay
as a consideration in such applications had been in doubt, the judgments of this Court in
Finnegan v. Superintendent of Tallaght Garda Station and Anor. [2019] IESC 31 had put
the materiality of that feature beyond doubt (para. 9). Citing the judgment of this Court
262, Hunt J. held that the Article 8 factors in this case, when weighed cumulatively, were
powerful, such as would warrant a refusal to surrender. Both judgments were
consolidated in a composite judgment dated the 2nd July, 2019.
Application for Leave
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6. The Minister then applied for leave to appeal directly to this Court. In the application for
leave, it was contended that the High Court judgment raised issues of general public
importance and would have a wide-ranging impact on other EAW proceedings. This was
because the analysis was potentially applicable to all proceedings where surrender was
requested for the purpose of serving the balance of part-served sentences. The Minister
observed that, anecdotally, approximately one half of all conviction, as opposed to
prosecution, warrants that came before the High Court related to part-served sentences,
particularly so in relation to warrants emanating from the Baltic States. Moreover, it was
submitted that the judgment gave rise to basic questions regarding the role of the High
Court and the status of the statutory limitations on the role of that Court contained in the
2003 Act.
7. More specifically, it was argued that the High Court judgment raised the question as to
whether, in determining an application for surrender, that Court might properly have
regard to issues such as whether the objectives of parole or rehabilitation had been met
under the Act, where these were, in fact, properly matters for the Lithuanian courts. It
was contended that the High Court had trespassed into areas where it was not permitted
to go under the legislation, and that this judgment was at variance from other High Court
for Justice, Equality and Law Reform v. Dunkova [2011] IEHC 36, where Irish courts had
refused to have regard to such matters, deeming them questions to be considered by the
courts of the issuing state).
8. The respondent submitted that the case involved no more than an application of principles
previously outlined by this Court in Ostrowski, and that if, as in this case, there were
matters such as delay to which a respondent could refer, such features might give rise to
an inference that the public interest in pursuing an extradition was at the lower end of the
scale. He contended that, where there were also other factors present, these,
cumulatively, could properly fall to be assessed by the High Court judge, and, in an
appropriate case, lead to a refusal to surrender. In short, the respondent‘s case was that
the judge correctly took these features into account and applied the correct legal
principles in his decision.
9. This Court determined that the issues raised in the judgment were of general public
importance. Specifically, the question arose as to whether the High Court had correctly
interpreted and applied the Act and the principles enunciated in the jurisprudence.
10. Prior to addressing the judgment under appeal, it is necessary to first consider the 2003
Act, and then two decisions of this Court referred to earlier: Ostrowski and J.A.T.
The Legislative Framework
11. The legislative intent behind the 2003 Act was to give effect to the European Council
Framework Decision of the 13th June, 2002, on the European Arrest Warrant and the
surrender procedures between Member States (2002/584/JHA) (―the Framework
Decision‖). The philosophy behind the original Framework Decision was to introduce a
new and simplified system for the surrender of sentenced or suspected persons for the
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purpose of execution or prosecution of criminal sentences. This system would remove the
complexity and potential for delay inherent in previous extant extradition procedures
(Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU) at paras. 75–76).
12. Thus, systems of extradition which hitherto on occasions had a significant governmental
or political input, were replaced by a new regime of what was identified in the Framework
Decision and subsequent jurisprudence, as a free movement of judicial decisions in
criminal matters, covering both pre-sentence and final decisions. At the outset, the
process was seen as being located within the area of freedom, security and justice
recognised in European Union (―EU‖) treaties. The project involved the introduction of a
system of ―judicialisation‖ of the process of returning offenders to Member States, where
they were to face prosecution or completion of sentence.
13. The entire edifice of the Framework Decision is founded on a system of mutual recognition
of judicial decisions on criminal matters between each EU Member State. The role of
central authorities, as emanations of the executive of each Member State, whilst highly
important, is limited to the provision of practical and administrative decisions (Recital 9 of
the Preamble to the Framework Directive). Under the EAW system, the function of
ordering or refusing surrender is now exclusively reserved to the judiciaries of Member
States, to be determined on legal grounds.
14. This allocation of responsibility rendered it necessary that EAW procedures also be subject
to legal controls and rights protections. This was in order that judicial authorities might
make determinations within law, and on defined and uniform legal criteria. The system is
predicated on the existence of the special relationship which exists between Member
States of the EU, which, in turn, is recognised by the treaties themselves, reflecting the
maintenance and continuation of a high level of trust between all Member States.
15. The duty to act in accordance with the highest fundamental principles of the EU, includes
the maintenance of trust and the protection of the rule of law, peace, freedom and
democracy. This framework is grounded upon the existence of the common foundation of
human rights protections to be found in the ECHR and the Charter of Fundamental Rights
of the EU (―the Charter‖). It is self-evident that the maintenance of these values hinges
on the continued existence of the rule of law and an independent judiciary in each
Member State (see Recitals 9 and 10 of the Framework Decision, and the judgments of
562).
16. The Framework Decision contains not only an outline of duties, but of rights protections.
All Member States of the EU are obliged to enforce ECHR, and now Charter, rights
(regarding the ECHR, see Minister for Justice, Equality and Law Reform v. Stapleton
[2007] IESC 30; [2008] 1 IR 669). The fact that rights protection may come under the
supervision of a supranational court which can definitively rule on the compliance of a
particular system with basic human rights is, therefore, itself an essential component of
the system. This does not preclude a recognition of differences between the legal systems
of each contracting state.
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Fundamental Rights
17. Surrender may be refused if it is established on cogent evidence that to make such an
order would involve exposing a person to a situation where there is a real risk that he or
she might be exposed to a denial of fundamental rights. Ireland will not refuse to
surrender a person to another country with whom it has a bilateral or multilateral
agreement merely on the basis that he or she might be treated differently, or under a
different regime, than in this State. Delivering judgment in Minister for Justice, Equality
and Law Reform v. Brennan [2007] IESC 21; [2007] 3 IR 732, Murray C.J. rejected the
proposition that an order under the Act of 2003, or indeed any order for extradition,
might be refused if the manner in which a trial in the requesting state, including the
manner which a penal sanction was imposed, did not conform to the exigencies of our
Constitution if such a trial or sentence had taken place in this country (para. 37). He
observed that such an argument could hardly have been the intention of the Oireachtas in
adopting s.37(1) of the 2003 Act - which addresses constitutional and ECHR protections—
since it inevitably would have had the effect of ensuring that most requests for surrender
or extradition must be refused.
18. It is self-evident that the manner, procedure and mechanisms by which fundamental
rights will be protected in different Member States may vary according to national laws
and constitutional traditions. Checks and balances in each national system may, too,
vary, even though they might have the same objective, such as ensuring a fair trial. As
Murray C.J. observed in Brennan, few legal systems would wholly comply with the precise
requirements of our Constitution (para. 39).
19. Nonetheless, Murray C.J. was of the view that, in considering an application for surrender
of this type, an Irish court must have the jurisdiction to consider circumstances where it
might be established that surrender would lead to an egregious or flagrant denial of
fundamental or human rights (para. 40). An instance of this would be if it were clearly
demonstrated that there was so fundamental a defect in the system of justice in an
issuing state as to give rise to a situation where the grant of an application to surrender
might actually violate such fundamental rights.
20. For an order of surrender to be refused on such grounds, the question is not whether the
legal regime in an issuing state is at variance from that under the Constitution. Rather, it
is whether it can be established, on cogent, clear evidence, that the circumstances are so
egregious, or the undermining of the rule of law so flagrant, so as to create a real risk
that to grant an order to surrender would lead to a denial of fundamental human rights.
Such a denial could arise from circumstances in Ireland or in the issuing state.
21. It follows from this consideration, that the Framework Decision and the Act will operate
on the premise that, in general, it is not the duty of Irish courts to apply principles or
considerations which would be applicable to a trial or other criminal proceeding in Ireland,
to proceedings which, properly, would be dealt with in an issuing state in the event of a
surrender being ordered.
Article 8 ECHR
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22. What is in issue in this appeal falls into a somewhat distinct category. The main question
which arises is whether an order for surrender would be ―incompatible‖ with the State‘s
obligations under the ECHR and its protocols (s.37(1) of the 2003 Act). This is subject to
a rather different, and at times more complex test, by virtue of the nature of the ECHR
protection.
23. Article 8(1) ECHR guarantees the right to respect for an individual‘s private and family
life, home and correspondence. But that guarantee is subject to the proviso that public
authorities shall not interfere with the exercise of that right, except such as in accordance
with law, and is necessary in a democratic society in the interests of national security,
public safety, the economic wellbeing of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others (Article 8(2)). The terms of Article 8(2) are, therefore, sufficiently
broad to encompass orders for extradition, or in this case, surrender. But as will be seen,
these Article 8 considerations arise within a statutory framework which it is now
necessary to consider.
24. The judgment under consideration must be assessed in the light of the provisions of the
2003 Act, subsequently amended on a number of occasions, and relevant decisions of this
court. It must be considered under various headings, addressing first the test as actually.
The Test Applied in the High Court Judgment
25. The High Court judgment was delivered by a highly experienced judge. It contains a full
description of the circumstances of the case. It is carefully reasoned. As already
described, the Court was asked to address whether surrender should be ordered where it
was claimed such an order would violate private and family rights under Article 8 which,
as set out at para. 23 above, is subject to qualifications. On its own terms, therefore, the
protection contained in Article 8 is less than, for instance, the absolute prohibition on
torture and inhuman or degrading treatment to be found in Article 3 of the ECHR.
26. In an important passage, Hunt J. directly set out the test he proposed to apply in the case
before him. He described the duty of the Court, where resistance is offered ―to surrender‖
by virtue of a constitutional or ECHR right, as being to conduct a ―fact-specific enquiry‖
into all relevant matters, so that a ―fair balance‖ could be struck between the rights of the
public and those of the person in question. The judgment continued:
“Such an exercise is not governed by any pre-determined approach or pre-set
formula. Each of the competing interests must be measured and balanced. In this
context, the interests of the public, underpinned by weighty considerations such as
freedom and security, will virtually always merit significant value; the weight of
individual interests will have greater variability. Consequences inherent in the
surrender process, without more, attract a much lower value than consequences
with a real and substantial effect on the individual concerned” (para. 23).
27. Thereafter, the judgment outlined the features which were identified as indicating the
public interest in ordering surrender (para. 25). These included the actions or inactions of
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the requesting state, the purpose of the request for surrender, the nature of the sentence
originally imposed, the extent of the sentence served, the young age of the respondent at
the time of the many offences of which he was convicted, the nature of his breach of
parole, and the purpose of the parole itself (paras. 25–29). The judgment concluded that
certain features in the case, such as delay, indicated that the public interest in surrender
was at the lower end of the scale (para. 40).
28. The judgment having outlined the respondent‘s ―private interests‖ in the form of his
private and family rights under Article 8 of the ECHR, concluded that these, with the other
factors mentioned, were such as would indicate that an order of surrender should not be
made (para. 43).
29. It is undoubtedly true that these ―private interest‖ circumstances as described, did reflect
the facts of the respondent‘s own individual situation. The first aspect of the question
here is one of statutory limitation; that is, the extent to which any, or all, of these
features are appropriate for an Irish court to consider in reaching a determination under
the 2003 Act and, if so, how they should be weighed? The nature of the legal test - and
any limitations thereof - are therefore central questions to this appeal, and indeed many
other such applications. It is necessary first to consider the precise terms of the 2003 Act.
How the balance is weighed is fundamental; in what circumstances can private interests
to outweigh public interests?
The Act of 2003
30. The analysis which follows must be seen with the full recognition that there is already a
considerable body of jurisprudence on the application of Article 8 of the ECHR in an EAW
context. But what is to be found there must be assessed within the legislative framework.
The 2003 Act sets out clear pointers to the approach which should be adopted. These
include s.4A, which was inserted into the 2003 Act by s.69 of the Criminal Justice
(Terrorist Offences) Act, 2005. This came into effect on the 8th March, 2005. Section 4A
provides:
“It shall be presumed that an issuing state will comply with the requirements
of the Framework Decision, unless the contrary is shown.” (Emphasis added)
31. At one level, seen alone, this provision constitutes a simple evidential presumption of
future compliance by the issuing state with the Framework Decision. It deals with the
duties and obligations of such states concerning the manner in which they will deal with
the person if surrendered and after such surrender has taken place. If there is cogent
evidence of non-compliance, then issues may arise which an Irish court might have to
address. However, a mere assertion of non-compliance, or the possibility of non-
compliance, will not be sufficient to dislodge the presumption (see, the judgment of
whether the form of defence arises under the Constitution or the ECHR.
Page 8 ⇓
32. But, on another level, the section speaks specifically to the task facing the High Court.
This is not to say that the section imposes a legal, as opposed to an evidential, burden on
the respondent; but, as will now be explained, it cannot be said that the balance is, in the
words of the High Court judgment, ―fair‖, in the sense of being entirely equal between
public and private rights.
33. While the judgment of the High Court is indeed detailed, it does not refer to s.4A, the
effect of which permeates any discussion of the duties of the Court in considering the
application in question.
34. Section 5 of the 2003 Act places a duty on the High Court judge to consider whether or
not the offences specified in the warrant correspond to those under the law of this State.
That issue does not arise in this case. Hunt J. found that the offences in question did
correspond with offences under Irish law, and no appeal is brought against that finding.
35. Section 10 of the Act also contains significant words. Under the heading ―Obligation to
Surrender‖, it provides:
“Where a judicial authority in an issuing state issues a European arrest warrant
in respect of a person –
…
(d) on whom a sentence of imprisonment or detention has been imposed in that
state in respect of an offence to which the European Arrest Warrant relates,
that person shall, subject to and in accordance with the provisions of this Act
and the Framework Decision, be arrested and surrendered to the issuing state.”
(Emphasis added)
Subject to the provisions contained in s.37, which outlines defences, these terms, too,
suggest a duty of compliance.
36. Section 16 also speaks to the balance. It provides that, where a person does not consent
to surrender, the High Court may, upon such date as is fixed under the Act, make an
order directing that the person be surrendered to such other person as is duly authorised
by the issuing state to receive him or her, subject to compliance with certain conditions
regarding identity and other proofs. But this duty is subject to an essential proviso, to the
effect that surrender will only take place provided such surrender is not prohibited by Part
3 of the Act.
37. Part 3 concerns rights protections. It includes s.37 which, insofar as material, provides
that a person ―shall not be surrendered‖ under the Act if his or her surrender would be
―incompatible‖ with the State's obligations under the ECHR or its protocols, or would
constitute a contravention of any provision of the Constitution other than for the reason
that the offence specified in the warrant is one to which s.38(1)(b) applies (s.37(1)(a)–
(b)). The respondent and his partner are a de facto family (see, para. 2 above). The
Page 9 ⇓
argument before this Court has therefore been framed entirely within ―private and family
rights‖, as protected in Article 8 of the ECHR, rather than the Constitution. Two points
arise. First, and as already mentioned at paras. 23 and 25 above, Article 8 protects
significantly qualified rights. Second, there is little European Court of Human Rights
(―ECtHR‖) case law on surrender/extradition procedures in the context of infringement of
Article 8.
38. Section 38 of the Act contains certain limitations, which may be characterised as coming
within the description of ‗proportionality‘. It is the only provision in the Act which now
contains such limitations. Briefly, it provides that a person shall not be surrendered in
respect of certain offences falling below a certain minimum threshold of seriousness. The
offences here fall above that minimum threshold. The provision also contains other
limitations, to the effect that surrender will not take place unless the offence corresponds
to an offence under the law of this State. The offence must be punishable by a maximum
period of not less than 12 months imprisonment. Alternatively, a term of imprisonment or
detention of not less than 4 months must have been imposed on the person in respect of
the offence in the issuing state, and the person requested must be required under the law
of that state to serve all or part of that term of imprisonment. Both of these conditions
apply.
39. But, even seen by themselves, and without consideration of the case law, these statutory
provisions set out substantial limitations on the role of the High Court in carrying out an
assessment under the Act.
40. To summarise the position thus far; the Act contains a presumption of compliance with
the Framework Decision: when a court is satisfied that the relevant proofs are complied
with, the Act stipulates that a person shall be arrested and surrendered to the issuing
state (see, ss. 4A and 10). But a court must also carry out an assessment of private and
family circumstances under s.37 of the Act in order to ascertain whether or not an order
to surrender is compatible with the State‘s obligations under, in this case, Article 8 of the
ECHR.
41. But the test involves a significant weighting process which now must be described in the
context of the decided case law
Ostrowski
42. In one sense, interpreting the statute is a simple matter. A more complex question, but
equally critical, is how, precisely, the public and private interests should be weighed in the
court‘s assessment? These questions were considered by this Court in the cases now
analysed. It is necessary not only to consider what principles were applied, but how this
Court described the balancing process, and how the public and private interest features
were actually to be weighed.
43. In the first case to be considered, the respondent, Mr. Ostrowski, had moved from Poland
to Ireland with his siblings and one parent. He went on a brief visit back to Poland where
he was found by the police to be in possession of a small quantity of marijuana.
Page 10 ⇓
44. Just as here, the High Court judge in that case adopted an ―open-ended balancing
process‖ and gave considerable weight to ―proportionality factors‖ (Minister for Justice
and Equality v. Ostrowski [2012] IEHC 57). He engaged in a hypothetical assessment of
what sentence might be imposed in the event of surrender. The judge held that it was it
was inherently unlikely that the respondent would receive a custodial sentence; that, if
surrendered to Poland, he would likely suffer a further deprivation of liberty; that his
prospects of being granted bail in Poland would be reduced; and that the Polish
authorities could have written to the respondent in Ireland informing him that the matter
was not going to be dropped, and inviting him to return to his home state. The judge
observed that there had been a delay in executing the warrant. He had regard to the fact
that there had been some elapse of time between the endorsement of the warrant by the
High Court in April 2010 and the respondent‘s arrest in 2011, which the judge concluded
had ―led to a false sense of security, and then increased stress and anxiety for the
respondent‖ (section 7 of the judgment).
45. Against that background, the judge then turned to the Article 8 features. He took into
account the burden on the respondent and his family of his having to be repatriated to
Poland in custody in the event of his surrender (section 7). He observed that to make an
order surrendering the respondent would disrupt his family life ―in a significant way‖. He
held that, whilst interference in family life was only to be expected when a person faced a
deprivation of liberty, it was usually a proportionate measure, and not a breach of his or
her right to respect for family life (section 7).
46. This last assertion could only be seen as problematic. While a sentence will be
―proportionate‖ in its adherence to the proper principles applicable to that exercise, quite
frequently a prison sentence will regrettably have a significant effect on private and family
life. But such interference will generally be justified by reference to Article 8(2) of the
ECHR, and the limitations contained there as to what is in accordance with law, and
necessary in a democratic society and for the prevention of disorder or crime.
47. In Ostrowski, the High Court judge held that, taken in conjunction with his family
circumstances, the features identified above were ―unusual‖ (section 7). Having weighed
them all up in the balance, and having afforded each circumstance what he considered to
be its appropriate weight, the judge concluded that he was not satisfied, overall, that it
would be a proportionate measure to order the surrender of the respondent on foot of the
EAW. He concluded, rather, that it would represent a ―disproportionate‖ interference with
the respondent‘s fundamental rights, and particularly his rights to liberty, to enjoy
physical and mental health, and respect for family life.
48. That approach could undoubtedly be described as an ‗open-ended‘ balancing process
having regard to public interest proportionality factors as against the private interest
ECHR factors, in the context of elapse of time. While the facts, of course, differ somewhat
from the instant case, the similarities are striking.
49. But the High Court judge‘s approach in Ostrowski was rejected by this Court (Denham
C.J.; Murray, O‘Donnell, McKechnie and MacMenamin JJ.), which concluded there was a
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duty to make an order for surrender. The Court delivered three judgments (cited at para.
5 above). Three other members of the Court expressed explicit concurrence with the
judgment delivered by Denham C.J. It is important to emphasise that the judgment of
McKechnie J. is a concurring judgment which expresses no dissent from that of Denham
C.J. In fact, the ratio of each judgment is the same. The judgment which I delivered
specifically concurred with that of Denham C.J.
50. Denham C.J. considered the wording and policy behind the Framework Directive. Her
words not only speak to the principles applicable, but importantly, to the appropriate
weight to be attached to public and private interests. She emphasised that the obligation
expressed both in the Framework Decision and the Act, was that Member States should
execute any warrant on the basis of the principle of recognition (para. 60). She pointed
out that it was the responsibility of the courts to implement and apply the 2003 Act (para.
23). She stated that the Court was required to surrender a person sought to be
surrendered under the Act of 2003, as long as the provisions of the Act are complied with
(para. 23). But these observations must, as stated by Denham C.J., be seen as subject to
the provisions of s.37, to the effect that a court must always have regard to the question
as to whether or not the surrender is compatible with the State‘s obligations under the
ECHR, or in contravention of the Constitution.
51. Denham C.J.‘s judgment firmly rejects the argument that the triviality of the offence(s) in
question should be a bar to a surrender, provided that the offence or offences came
within those identified within the ambit of the 2003 Act (para. 25). She observed that, to
some degree, the Framework Decision might be said to have addressed a proportionality
question by providing for a minimum gravity test with regard to offences which fall within
the range of the Framework Decision (para. 27). She stated that this was reflected in s.38
of the Act of 2003.
52. But the Chief Justice then went on to set out in very clear terms the limitations on the
role of the High Court, holding that the Court had:
“no role to look at possible sentences which might be awarded in an issuing
state when a person is surrendered and to consider whether such a sentence is
proportionate” (para. 29).
She added that it would be virtually impossible in the vast majority of cases for the High
Court, or any national court, to ascertain the likely sentence to be imposed by a court in
the requesting state in all the circumstances of a particular case, even if, in a minority of
cases, it might be thought possible (para. 29).
53. On this, she made clear:
“Once an EAW meets the minimum gravity test for an offence set out in the
Framework Decision and the Act of 2003, it is not for the High Court to create and
apply a proportionality test to a potential sentence” (para. 30).
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Such considerations were, rather, a matter for a court of the issuing state - in Ostrowski,
Poland. Referring to Eurojust, the supervisory forum for the operation of the Framework
Decision, Denham C.J. observed that, while the question of triviality was a matter which
might be addressed in ―another‖ forum, it was not a question to be considered by the
courts of Ireland (para. 31).
54. In Ostrowski, the respondent‘s parent, brother and sister had moved to Ireland some
years previously, thereby making a ―collective decision to stay in Ireland‖. The
respondent‘s immediate family were, therefore, in Ireland, and his intention was to stay
in this State on a long-term basis. But these private and family circumstances were
insufficient to establish an Article 8 defence under the ECHR. This Court held that the High
Court had erred in adopting such an approach, and that it was not for that Court to
―create‖ a proportionality test for the potential sentence which a respondent might
receive. This was a matter for the courts of the issuing state.
55. Directly addressing Article 8 private and family rights, at para. 36, Denham C.J. quoted
with approval from the judgment delivered by Fennelly J. in this Court in Minister for
Justice, Equality and Law Reform v. Gheorghe [2009] IESC 76. Fennelly J. observed at
para. 48 of Gheorghe that it was a regrettable, but inescapable incident of extradition in
general, and surrender under the EAW system in particular, that persons sought for
prosecution in another state will very often suffer disruption of their personal and family
life. He went on to point out that Article 1 of the Framework Decision expressly provides
that it was based on fundamental rights and fundamental legal principles, then enshrined
in Article 6 of the Treaty on European Union. But, he said, no authority had been
produced to the Court to support the proposition that surrender should be refused where
a person would, as a consequence, suffer disruption, even severe disruption, of family
relationships (para. 48).
56. Denham C.J. observed that only in an exceptional case could such rights outweigh the
requirement to surrender (para. 37). Ostrowski was not such a case. Thus, she held that
there was no foundation upon which to find for the respondent on that ground. It followed
that to succeed, the private and family rights which arose would have to be genuinely
exceptional. The Chief Justice specifically held that the ―general principle of
proportionality‖ did not arise in the case (para. 37).
57. In Ostrowski, McKechnie J. delivered a very comprehensive and closely reasoned
concurring judgment. This traced the origins of the 2003 Act from the Framework
Directive, considered the terms of the Act itself and assessed the manner in which ECHR
and constitutional protections might arise in a judicial determination.
58. The judgment then turned to the question of balancing rights. There followed a passage
which, in many if not all particulars, is strikingly similar to the identification of a test
contained in para. 23 of the judgment now, under appeal.
59. But, it must be emphasised, in the passage about to be quoted, McKechnie J. was not
referring to the test to be adopted by a court in finally determining whether or not to
Page 13 ⇓
order surrender, but rather the antecedent proportionality test which might be applied
when raising a rights-based defence. Thus, it was in that specific context, that he stated
at para. 104 that:
“In summary, where resistance is offered by virtue of a Convention or
Constitution right, the court must conduct a fact specific enquiry into all relevant
matters so that a fair balance can be struck between the rights of the public and
those of the person in question.” (Emphasis added)
60. That passage speaks only in the context of resistance being offered by virtue of a
Constitution or Convention right. At para. 23 of the judgment under appeal, quoted at
para. 26 earlier, the words ―to surrender‖ appear after the word ―resistance‖. There is a
subtle, but important, difference in meaning and effect. McKechnie J. was not speaking of
a defence to surrender, but rather the fact-specific enquiry on the antecedent question of
resistance being offered by virtue of a Convention or Constitution right. It was in that
context that a proportionality test would arise. It was in that process the court must strike
a ―fair balance‖ between public and private interests and rights.
61. Later in the judgment, McKechnie J. did indeed turn to how the Act should be applied
when it came to the ultimate question of whether to order surrender. He considered the
interpretative effect of the decision of the Court of Justice of the European Union (―the
general principle that, under the common law, there existed a presumption that when
enacting domestic legislation such as the Act of 2003, the Oireachtas intended to do so in
a manner which would be consistent with its international obligations. He then addressed
Article 1.2 of the Framework Decision, which provides that 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.”
62. With all these factors in mind, he expressed the following very clear views on the ultimate
test under s.16, at para. 148:
“The question therefore is whether, with the aid of this interpretive approach,
there can be implied into the provisions of the 2003 Act, in particular those
referable to a surrender hearing, an overall requirement on the High Court
to apply a proportionality test of the scope and breadth as above mentioned. In
my view, it is not possible to so do.” (Emphasis added)
63. He went on:
“This conclusion results from the express wording of article 1.2 of the
Framework Decision, which applies in furtherance of the mutuality principles which
are the very foundation of the instrument itself, together with the express
provisions of the Act in the context of execution, which make it clear that unless
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the mandatory or optional barriers to extradition… can be availed of, the High
Court must, if satisfied as to formal matters, make the order as requested. As
previously stated, it does not have a residual power of refusal.” (Emphasis added)
64. Just as did Denham C.J. at para. 37 of her judgment, McKechnie J. rejected the possibility
of an overall requirement that the High Court should apply a ―general proportionality test‖
of the scope and breadth he described. That is not to say that a court may not have
regard to a truly exceptional set of circumstances such as, perhaps, involving egregious
delay.
65. While any decision to surrender must, of course, be compatible with the Convention
protections afforded, the process does not involve a general proportionality test. But no
less important are the actual terms of Denham C.J.‘s judgment. These convey the
constant and strong public interest which a court must weigh in determining whether to
make an order.
66. To summarise on this issue, I think the High Court judgment incorrectly elided two
separate tests into one overall proportionality assessment which does not correspond with
the requirements of the Act.
67. Ostrowski makes clear that, to be successful, an Article 8 defence must cross a high
threshold. Below that, while Convention or constitutional rights necessitating
proportionality assessments will often arise for consideration in many cases, these will not
be sufficient to defeat a claim for surrender. The test must be seen within the
requirements of ss.4A, 10, and 37(1) of the 2003 Act, as explained in Ostrowski.
68. In carrying out an assessment in our law for the purposes of s.16 of the Act, therefore, it
is not accurate to speak of the task as one which is not governed by any predetermined
approach, or pre-set formula, balancing competing public and private interests. In fact,
the constant and weighty public interest in ordering surrender is not only underlined by
Article 8(2) considerations such as necessity under law, freedom and security, but the
words of ss.4A and 10 of the Act. The test must be seen in light of the clear exposition in
the judgments in Ostrowski. A court may often have to take private and family rights
considerations into account. But it can only do so having regard to the limitation
contained in Article 8(2) of the ECHR, and the public interest considerations inherent in
the Act and the Framework Decision. To surmount these, in any case, would necessitate
that the evidence requirement be high. The assessment does not involve a balance
between the rights of the public and those of the individual. It is one, rather, where, as
the Act provides, a court shall presume that an issuing state will comply with the
requirements of the Framework Decision - unless the contrary is shown on the basis of
cogent evidence. When faced with an application under the EAW, an Irish court should not
carry out a general proportionality test on the merits of the application; but rather, it
should apply the specific terms of the Act, albeit subject to a careful consideration of
whether, if necessary, applying a proportionality test to an Article 8 Convention right, to
order surrender would involve a violation of that ECHR right to the extent of being
incompatible with the State‘s obligations under the Convention.
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69. I am, therefore, driven to the conclusion that the High Court judgment under appeal
proceeded under a misapprehension regarding the test to be applied in an application for
surrender under s.16 of the 2003 Act. But that does not absolve this Court from itself
carrying out an assessment in order to determine, applying the correct test, whether an
order for surrender should have been made.
70. The principle that Irish courts may refuse an order for surrender under s.37 of the Act, is
well established. To take one illustration, in Minister for Justice, Equality and Law Reform
v. Rettinger [2010] IESC 45; [2010] 3 IR 783, this Court (Denham, Fennelly and
Finnegan JJ.) refused an order for surrender to Poland on the grounds that there was a
real risk of a violation of the absolute prohibition against torture and inhuman or
degrading treatment under Article 3 of the ECHR due to the prison conditions in that
Member State. But, even there, the Court held that a possibility of such treatment would
not be sufficient (per Denham J. at para. 31). The evidence had to go further. It
established a real risk of violation of what was, in that instance, an absolute protection. In
that context, this Court found that s.37(1)(c) of the Act required reasonable grounds for
believing that a real risk existed (per Fennelly J., at para. 74).
71. But there are real distinctions between the circumstances in Rettinger and the instant
case. Here, what is in question is not the absolute right to be found in Article 3 of the
ECHR, but rather an alleged risk to the qualified right to private and family life which is
subject to the qualifications contained in Article 8(2) of the ECHR. Thus, the evidence of
an Article 8 violation would have to be so clear that, in the words of s.37(1), an order for
surrender would be incompatible with the State‘s obligations under the Convention or its
protocols. The Act of 2003 therefore makes it entirely clear that it is the duty of the
courts to have careful regard to constitutional and ECHR guarantees and protections.
Minister for Justice v. J.A.T. (No. 2)
72. In Minister for Justice v. J.A.T. (No.2), cited at para. 5 above, this Court did have to
consider a truly exceptional case, where the Article 8 circumstances were entirely outside
the norm. The case involved a second EAW, issued in relation to the VAT offences alleged.
The fact that a second warrant was issued was due to flaws in the first EAW, which, as
this Court held, could have been, but were not, addressed in the application concerning
that first warrant. A very considerable time had passed since the alleged offences. Further
time had elapsed since the appellant had been arrested on foot of the second EAW.
73. Denham C.J. described the other unusual features of the case. Her judgment had regard
to the oppressive effect that the two EAWs had on the appellant, his son and his family;
the absence of explanation for the failure to remedy the defects in the first warrant; and
the fact that there had been no engagement by the authorities, either on that issue or to
explain the delays. She observed that the Court also had to have regard to the duty to
protect fair procedures and the principle that a party in litigation should not benefit from
proceedings which were, de facto, abusive of the court‘s process.
74. But critically in J.A.T., there was clear, cogent medical evidence concerning the degree of
incursion into the appellant‘s Article 8 private and family rights. The appellant himself was
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psychologically vulnerable. He was stressed, not sleeping, suffering from considerable
anxiety and depression, and worried about the care of his son (per Denham C.J. at para.
67). The appellant reported to his doctor that his whole family was ―falling apart‖ and that
his dependent son not only suffered from chronic schizophrenia which would not improve,
but would most probably deteriorate as he got older, especially if he continued to abuse
alcohol (paras. 67–68). He had a daughter in England who also had mental health issues,
which appeared to have started around the time of the initial proceedings.
75. The uncontroverted medical evidence further established that not only that the appellant
was in quite a distressed state, but that his doctor would fear for the appellant‘s mental
health if he was required to go through the full process of court appearances and
extradition proceedings for a second time. The appellant‘s wife was not in a position to be
the son‘s primary carer, and the appellant played a primary role in running the family.
This was an almost unique set of circumstances.
76. O‘Donnell J.‘s judgment concurred with the order proposed by Denham C.J. His
judgment, too, forms part of the ratio. It laid particular emphasis on the fact that, in EAW
proceedings, considerable weight is to be given to the public interest in ensuring that
persons charged with offences actually do face trial (para. 4). He referred to the ―constant
and weighty‖ interest in surrender under an EAW, as well as under bilateral or multilateral
extradition treaties. He pointed out that the fact that people accused of crimes should be
brought to trial was not only a fundamental component of the administration of justice in
a domestic setting, but also internationally. He further mentioned the important and
weighty interest in ensuring that Ireland not be seen as a haven for fugitives and to
honour its treaty obligations; if anything, there was a greater interest and value in
ensuring performance of those obligations entailed by membership of the EU (para. 4).
The judgment identified what are described as the particular and specific factors in J.A.T.:
the repeat application, lapse of time, delay, impact on the appellant‘s son, and knowledge
on the part of the requesting and executing authorities of those factors, all weighed
cumulatively (para. 10).
77. At para. 2, O‘Donnell J. pointed out that when, under United Kingdom (―U.K.‖) legislation,
the courts in the neighbouring jurisdiction had given consideration to Article 8 defences,
the consequence had been to give rise to a substantial number of subsequent applications
where such defences had been relied upon (see, the judgment of the U.K. Supreme Court
ER 539). The question of the weight to be given to public and private interests was later
reviewed in that jurisdiction, when, in a subsequent judgment, Polish Judicial Authorities
v. Celinski and Ors. [2015] EWHC 1274 (Admin); [2016] 3 All ER 71, a Divisional High
Court of England and Wales laid considerable emphasis on the principle that substantial
weight should be given to the public interest in compliance with extradition requests, the
undesirability of the United Kingdom being seen as a haven for fugitives from justice, and
the fact that the judgment in HH had to be seen within its own specific factual context,
where there were highly unusual Article 8 features (paras. 8–9). The Divisional Court
emphasised that ―proportionality‖ questions, the culpability of the defendant and the
Page 17 ⇓
integrity of the sentencing regime in each individual state were matters for the issuing
state (paras. 12-13). While persuasive judgments from the neighbouring jurisdiction will
always be illuminating, it is important to emphasise that the terms of the U.K. Extradition
Act, 2003, and the duties of a court in considering such applications, are very different
from those contained in the Irish Act of 2003.
Consideration
78. Having analysed the effect of the statute, and the nature of the test as explained, it is
then necessary to consider the facts as fully outlined in the High Court judgment.
Applying the principles with their correct weighting, the evidence adduced must be
evaluated to determine whether an order for surrender should be made. As well as other
factors, counsel for the respondent urged the Court to take into account the passage of
time which had elapsed. No authority was cited to this Court for the proposition that the
elapse of time, per se, could give rise to a refusal to surrender. One cannot, of course,
preclude the possibility that, in a given situation, very lengthy delay, perhaps giving rise
to exceptional Article 8 consequences, could be a significant factor in an EAW application.
But the question is whether this is such a case? For the purposes of this appeal, counsel
for respondent Minister prepared a chronology of events. The reference to the Kovalkovas
judgment is explained below this chronology.
79. Chronology:
11th June, 1989: Respondent‘s date of birth
2nd September, 2003–21st May, 2005: 43 offences committed
17th November, 2004: Respondent convicted of 7 offences
10th February, 2005: Respondent convicted of 2 further offences
4th November, 2005: Respondent convicted of 7 further offences
28th February, 2006: Respondent convicted of 25 further offences
30th June, 2006: Respondent convicted of 1 further offence
1st July, 2006: Respondent convicted of 1 further offence
Composite sentence imposed: 5 years and 8 months
22nd June, 2009: Respondent released on conditional parole
12th September, 2011: Lithuanian court revoked his parole
2nd December, 2013: EAW issued by the Lithuanian Ministry of Justice
10th November, 2016: Kovalkovas judgment delivered by the CJEU (see, 477/16 BPU)
9th December, 2016: Notice from Ministry of Justice regarding modification of the EAW
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21st December, 2016: New EAW issued by regional court
April, 2018: EAW transmitted to the Central Authority
30th April, 2018: Central Authority in Ireland requests additional information
7th May, 2018: Additional information received (No. 1)
14th May, 2018: EAW endorsed by the High Court
28th July, 2018: Respondent arrested
29th July, 2018: Respondent brought before the High Court
30th July, 2018: Respondent was given bail
26th September, 2018: Respondent filed points of objection and affidavit
11th October, 2018: Central Authority requested further information
24th October, 2018: Additional information received (No. 2)
18th January, 2019: Surrender hearing before the High Court
1st March, 2019: High Court judgment delivered
27th May, 2019: High Court refused to grant certificate of leave to appeal
4th June, 2019: Notice of Appeal to the Supreme Court
2nd August, 2019: Determination of the Supreme Court ([2019] IESCDET 193)
22nd August, 2019: Notice of Intention to Proceed (filed late by consent)
80. As the High Court judge correctly concluded in this case, there were indeed significant
elapses of time. The respondent served three years out of the five-year and eight-month
composite sentence finally imposed on him on the 1st July, 2006. He was granted parole
on the 22nd June, 2009. He was released on the 1st July of the same year. The order for
release was revoked in September 2011. The High Court judgment infers that the
respondent came to Ireland in late 2011 or 2012. At some point, he was placed on the
wanted list in Lithuania. But the authorities did not establish his whereabouts until the
year 2013.
81. The Central Authority in Ireland requested further information as to the reasons for delay.
The Lithuanian Ministry for Justice had previously issued an EAW in 2013. But, in fact, the
warrant before the High Court was issued in Lithuania in December 2016 and was not
transmitted to Ireland for execution until April 2018.
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82. Counsel for the Minister referred this Court to evidence that on the 9th December, 2016,
the Siauliai County Court in Lithuania received a notice regarding what is termed
―modification‖ of the earlier warrant for the respondent. Counsel submits that this
modification was likely to have related to the judgment of the CJEU issued in the case of
Kovalkovas a few weeks earlier, which held that the Lithuanian Ministry of Justice was not
a ―judicial authority‖ for the purpose of Article 6 of the Framework Decision, and was
therefore not entitled to issue the warrant (see, Kovalkovas (Case C-477/16 PPU; 10th
November, 2016) at para. 48).
83. But the High Court judgment under appeal also expressed the view that other elapses of
time were also matters of significant concern. The judge observed that the elapse of time
between the grant and revocation of parole had not been addressed by the requesting
state, although if this had been the only period of unexplained delay it would not, of itself,
be particularly significant. However, he went on to observe that, from the information
available, it appeared that during the time between the grant of parole on the 22nd June,
2009, and the revocation of parole on the 12th September, 2011, the respondent was still
amenable to the Lithuanian authorities, as they were monitoring his conduct, and were
aware then that he had not fulfilled the parole conditions which led to the matter being
returned to the relevant court on the 12th September, 2011 (para. 31).
84. The judgment also expressed concern as to the overall elapses of time which occurred,
and that there had not been any full explanation for the elapse of time between the
revocation of parole and when the earlier EAW was issued on the 2nd December, 2013.
Perhaps the difficulty did indeed arise from the pending Kovalkovas case before the CJEU,
which was not resolved until 2016. This was not explained in evidence. This was
unsatisfactory and was not in full accord with the principles underlying the Act of 2003
and the Framework Decision.
85. On the 10th October, 2018, the Central Authority in Ireland asked for a further
explanation regarding the elapse of time which had taken place between the issue of the
second EAW in December, 2016 and its arrival in Ireland in April 2018. The response from
the Lithuanian Central Authority was to the effect that further information had been
sought from the court of first instance and that it would not be possible to provide further
information before the 22nd October, 2018, but that as soon as further information was
received, it would be forwarded. No further information has emerged. One cannot but
have some sympathy for the learned trial judge‘s concerns, both as to the elapse of time
and the absence of information, both then and since.
86. The question of the passage of time from the commission of an offence no longer forms
part of the framework of the 2003 Act. Section 40(a)–(b) of the Act, which formerly
provided that a person should not be surrendered for a corresponding offence when, by
reason of the passage of time, such person could not be proceeded against in this State,
was deleted by s.19 of the Criminal Justice (Miscellaneous Provisions) Act, 2009 with
effect from the 25th August 25, 2009, by virtue of the Criminal Justice (Miscellaneous
Page 20 ⇓
Provisions) Act, 2009 (Commencement) (No. 3) Order 2009 (S.I. No. 330/2009). But this
was not the only observation on the elapse of time question.
87. There are indications however that the High Court may have considered that elapse of
time was sufficient in itself to defeat an EAW application. As indicated at para. 5 above, in
the supplemental judgment delivered in response to the Minister‘s application to certify
that points of law of exceptional public importance arose, the High Court judge observed
that if the relevance of delay as a consideration had ever been in doubt in this area, the
recent judgments of the Supreme Court in Finnegan (cited at para. 5 above) ―put this
point beyond doubt‖.
88. Finnegan dealt with the question of egregious delay in the issuing of a warrant. But the
judgment of the majority of this Court was clearly limited to the unusual circumstances of
that case. The judgment did not establish any general principle to the effect that delay in
processing the warrant in that case could figure as a factor in an EAW assessment. In
fact, in Finnegan, O‘Donnell J. pointed out at para. 13 that, under the EAW regime, elapse
of time itself ―cannot be a ground for refusing surrender‖. (Emphasis added; see, also,
Minister for Justice, Equality and Law Reform v. Stapleton [2007] IESC 30; [2008] 1 I.R.
I.R. 242). In itself then, delay cannot be a factor.
89. Though a matter of legitimate concern, in this case the delay is to be viewed against the
respondent‘s private and family circumstances. Unless truly exceptional or egregious,
delay will not alter the public interest, although there may come a point where the delay
is so lengthy and unexplained as to constitute an abuse of process, or to raise other
constitutional or ECHR issues. The High Court judgment holds that there had been a
significant dilution of the public interest which would ordinarily apply (para. 37). It posed
what was characterised there as a modified and weakened public interest in surrender,
evidenced by the elapses of time and other factors. Against this, it posed the private and
family factors in the case (para. 38). But for the reasons set out above, there was a
misapprehension as to the nature of the assessment. This is not a balancing exercise
where public and private interests are placed equally on the scales. It is nonetheless
necessary to have regard to the circumstances.
90. The question of weighting again arises in this section of the judgment under appeal. The
public interest in making an order is clear, constant and substantial. But in this case, the
judge also held that the elapse of time prior to 2011, from 2013 to 2016 and later from
2016 to 2018, did not ―signify a pressing social need in Lithuania for the return of [the
respondent]‖ (para. 35). He expressed particular concern regarding the delay from 2016
onwards in light of the previous elapses of time. What then are the family circumstances?
Private and Family Circumstances
91. The respondent lives with his partner and the two children near a provincial town. They
signed a further lease for their home for nearly two years in early 2018. Both of their
children attend/attended pre-school and primary school in Ireland. Both children are Irish
citizens and have always lived in Ireland. The respondent is in loco parentis in relation to
Page 21 ⇓
the older of the two girls and states his intention to continue so to act. His relationship
with his partner has now continued for approximately seven years. Since he arrived in
Ireland, the respondent has lived openly under his own name. The only two convictions
against him are for driving without insurance and depositing grass cuttings in a place not
designated for such purpose. The respondent‘s partner has no convictions. She works in a
retail outlet. Both she and he are well-settled in the area. There are undoubtedly factors
in the case which would attract sympathy, but beyond that the evidence simply does not
go. The evidence falls very far short of that described in J.A.T.
92. It cannot be said therefore that there are ―exceptional‖ Article 8 factors. The judge
observed that the sole feature of particular interest was the young age of the children for
which the respondent was responsible. He made the observation that the potential effect
of the loss of contact with their father for almost three years at their time of life would be
obvious, particularly in the case of the child who was born in 2015 (para. 38).
93. He described the evidence on that aspect of the case as ―general‖ and that, on the
evidence, it was reasonable to conclude that the children‘s best interests would be
vindicated by the continued provision of care and support by a present father (para. 38).
While true, these observations make clear the lack of exceptionality - and the absence of
cogent evidence - on the facts which distinguished this case from the highly unusual
circumstances of J.A.T. These are undoubtedly factors which a Lithuanian court will take
into account.
94. The contrast with the exceptional facts in J.A.T. is plain. For an Article 8 defence to
succeed, it can only be on clear facts based and cogent evidence. The evidence must be
sufficient to rebut the presumption contained in s.4A of the Act (see, para. 41 above).
The circumstances must be shown to be well outside the norm; that is, truly exceptional.
In the words of s.37(1), they must be such as would render an order for surrender
―incompatible‖ with the State‘s obligations under Article 8 of the ECHR. This would
necessitate that the incursion into the private and family rights referred to in Article 8(1)
was such as to supervene the limitations on the right contained in Article 8(2), and over
the significant public interest thresholds set by the 2003 Act itself.
95. The High Court judgment describes the youth of the offender at the time of his various
offences. It can be said that many of the offences were thefts, sometimes significant and
sometimes trivial. But the offences also included an assault on a car owner during the
course of the theft of a car, where it appears, the respondent, was one of a group of three
offenders who engaged in the crime. (para. 9). In the course of the offence, they falsely
imprisoned the victim. But this consideration in the High Court judgment, was a type of
―proportionality analysis‖ of the offences sentence and sanction. As this Court held in
Ostrowski, these are not factors which an Irish court is entitled to take into account under
the Act. But none of this precludes these issues being brought to the attention of the
Lithuanian courts. However even taken cumulatively, none of these, or the Article 8
factors outlined, are sufficient to place this case in an ―exceptional‖ category.
Page 22 ⇓
96. Were it to be the situation that, on surrender, the respondent would be entirely shut out
from raising these circumstances, this might be a different case. Arguably, such a
preclusion would be a denial of fundamental rights. The warrant recites at para. 3.4 that
the respondent was not personally served with the decision of the 12th September, 2011,
but that he would be personally served with the decision without delay after surrender.
Importantly, the EAW then goes on to recite that:
“When served with the decision, the person will be expressly informed of his or
her right to a retrial, or appeal, in which he or she has a right to participate, and
which allows the merits of the case, including fresh evidence, to be re-examined,
and which may lead to the original decision being reversed; and – the person will
be informed of the timeframe within which he or she has to request a retrial or
appeal, which will be 7 days.”
97. Later in the warrant, at box (h), it is stated that:
“The legal system of the Issuing Member State allows for a review of the penalty
or measure imposed – on request, or at least after 20 years – aiming at a non-
execution of such penalty or measure and/or – the legal system of the Issuing
Member State allows for the application of measures of clemency to which the
person is entitled under the Act, or practice of the Issuing Member State, aiming at
non-execution of such penalty or measure.”
98. These are important considerations regarding future compliance with fundamental rights
in the event of the respondent‘s surrender. There is no evidence that the respondent
would be precluded from raising any or all of the features of the case in the courts of the
Republic of Lithuania.
Conclusion
99. On the basis of s.4A of the 2003 Act, recited at para. 30 earlier, and in the absence of any
contrary evidence, this Court must presume compliance with the Framework Decision and
the protections it contains. It must presume that any determination in Lithuania of what
part, if any, of the balance of the sentence the respondent will now have to serve after a
substantial elapse of time will be a judicial decision, following a proceeding where the
respondent will be able to fully exercise his rights of defence, or mitigation, in an effective
manner and thereby influence any final decision which could potentially lead to a loss of
freedom.
100. No case has been made that, on surrender, a new hearing as to sentence or penalty in
the Lithuanian courts will have any predetermined outcome; rather, it will be decided on
the basis of the facts then adduced (see, Tupikas (Case C-270/17; 10th August, 2017) at
paras. 78–80, and Ardic (Case C-571/17 PPU; 22nd December, 2017) at para. 76).
101. For completeness, it may be helpful here briefly to address the questions which formed
part of the application to the High Court to certify points of law for an appeal to the Court
of Appeal. This judgment holds, therefore, that a court is not entitled to take into account
Page 23 ⇓
the fact that a requested person is to return to serve the balance of a part-served
sentence because of a breach of parole conditions, rather than to serve a sentence ab
initio; or to assess the gravity of the breach of the parole conditions; or to consider
whether the requested person has achieved rehabilitation since being released; or to hold
that an omission to fully explain delay was in itself, sufficient, in conjunction with the
other factors in this case, to warrant refusal.
102. It is natural that there will be human sympathy in a situation like this. But this must take
second place to the duties which devolve upon the courts under the Framework Decision
and the terms of the Act itself. The factors so fully outlined in the High Court judgment
will doubtless be considered by the Lithuanian court. I would conclude that the High Court
judgment misapprehended the test to be applied, and thereafter took into account
features which are not permissible in an assessment of this type. While, of course, there
were circumstances which differentiate this case from others, none of them were such as
to render the facts of this case, truly exceptional, or well beyond the norm, such as would
warrant a refusal to surrender.
103. I would wish to add, however, that the EAW system is predicated on mutual trust. If
central authorities in an executing state request information about factors such as the
elapse of time, a full explanation will not only be helpful to the court in an executing
state, but will often be necessary for justice to be done. The information placed before
this Court to explain the delay was insufficient. The information provided did not explain
that the delay - if there was such - was as a result of the judgment of the CJEU in
Kovalkovas. While it was suggested that further information would be available to explain
the later delay, it was never forthcoming. The absence of proper and necessary
information, even in response to direct requests, is not conducive to mutual trust and
confidence. Such full exchanges of information, creating mutual trust and confidence, are
fundamental to the operation of the scheme. The capacity to verify, as well as proceed on
the basis of trust, is fundamental. But while these are unsatisfactory features of this case,
they are of insufficient weight to be determinative. For the reasons set out in this
judgment, I would nonetheless allow the appeal and make an order that the respondent
may be surrendered on the European Arrest Warrant to the Republic of Lithuania.
Result: Allow Appeal