MJELR -v- Kizelavicius
Supreme Court
Judgment was delivered by Mrs Justice Denham on November 11th, 2009, the Chief Justice, Mr Justice Murray and Mr Justice Kearns concurring
Judgment
The appellant successfully appealed against a decision of the High Court that he be surrendered to Lithuania in respect of three of the four offences outlined on the European Arrest Warrant.
In this instance the sentence was a composite sentence relating to four offences, the third of which was not a corresponding offence.
If he had been sentenced separately for each offence, he could have been surrendered on three, but as he was not, his appeal was allowed.
Background
The appellant was sentenced in relation to four offences: one of robbery, one of assault, one of using a forged driving licence, and an act of forgery which took place in Dublin.
This last offence was found not to be a “corresponding offence”, in that it did not correspond to an equivalent offence under Irish law. The offences took place in 2003 and 2004.
The appellant was sentenced to one year for two of the offences and seven months for two others. The sentences were deferred and an obligation to continue studying was imposed.
However, according to the local court, the convicted person did not perform the imposed obligation and instead he departed abroad.
The deferral was cancelled and an aggregate sentence of one year and three months imposed. The breakdown of the sentencing was not given.
The arrest warrant was based on the ruling of the Alytus Region District Court on January 9th, 2009, which stated that the deferral of sentence had been cancelled.
In the High Court ruling, Mr Justice Peart had said: “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.”
He added that it was possible that some pre-trial detention was taken into account, but that it was not necessary that these matters be dealt with, and found that the minimum gravity requirement under the European Arrest Warrant had been complied with.
Counsel for the applicant pointed out that there was no information on which offence or offences the four months’ reduction was given, or any other information on how the one year and three month sentence was composed.
Decision
Mrs Justice Denham pointed out that, under the European Arrest Warrant Act, a person would only be surrendered if the offence corresponded to one under the law of the requested state, the offence was punishable by not less than 12 months in that state, and a sentence of not less than four months had been imposed in the state issuing the request for extradition.
She said that the conviction on the act of forgery took place in Dublin, outside the jurisdiction of the issuing state.
The High Court found there was no equivalent in this jurisdiction, so there was no correspondence.
If the only sentences on the warrant were those for assault and robbery, no problem would arise.
However, the sentence was composed of the sentence for the three corresponding offences and the one which did not correspond, and for which the appellant could not be returned to Lithuania. It was not possible to identify the sentence for the non-corresponding offence.
The 2003 Act did make provision for the surrender of a person for some offences while refusing surrender for others where multiple offences were mentioned on the warrant.
But this was only possible if the request in relation to each was separate and distinct.
As in this case the sentence could not be severed, and the court could not surrender the appellant to serve any sentence for the non-corresponding third offence, the request for his surrender must be refused.
The full judgment is on www.courts.ie.
Micheál O’Higgins SC and Kieran Kelly BL, instructed by John O’Leary Co, Tallaght, for the appellant; Anthony Collins SC and Melanie Greally BL, instructed by the Chief State Solicitor, for the Minister for Justice