Minister failed to establish grounds for postponing extradition, court finds

The Supreme Court has determined that the Minister for Justice failed to establish that the state of affairs during February 2021 prevented on humanitarian grounds the extradition of a Lithuanian national.

The decision overturns the findings of the High Court and later the Court of Appeal, which both found in favour of the Minister.

Andrius Sciuka was arrested and brought before the High Court in June 2020 on foot of a European arrest warrant issued by the Republic of Lithuania for enforcement of the remainder of a sentence for being part of a group that carried out an armed robbery and for illegal possession of firearms, according to the judgment by Mr Justice Séamus Woulfe.

The High Court made an order in January 2021 that Mr Sciuka was to be surrendered to Lithuania. However, authorities there requested a postponement of the making of the transfer order, due to the cancellation of all flights from Ireland to Germany on account of the high prevalence of Covid-19 in this State.

Upon request from the Minister for Justice in February 2021, the High Court granted a postponement of the transfer order.

The five-judge Supreme Court overturned the decisions of the lower courts, finding by majority that the Minister did not present evidence as to whether the man could be surrendered in a timely fashion by way of any practical alternative arrangements to travelling through Germany.

The Court’s decision was made with four judges in favour: Mr Justice Gerard Hogan, Ms Justice Elizabeth Dunne, Ms Justice Marie Baker and Mr Justice Peter Charleton, and one opposed: Mr Justice Woulfe.

In a judgment, with which three others concurred, Mr Justice Hogan noted that an “acute difficulty” arose due to the strict time limits mandated by the European arrest warrant process.

The “essential question” presented by the appeal, he said, was whether the cancellation of certain flights during the pandemic justified the postponement of Mr Sciuka’s surrender to Lithuania, having regard to humanitarian considerations under Article 23 of the Council Framework Decision of 2002.

The judge said domestic law providing for Article 23 states that a surrender “may exceptionally be temporarily postponed for serious humanitarian reasons”. Substantial grounds for believing the extradition would manifestly endanger the requested person’s life or health is given as an example of such reasons, according to the Act.

Mr Justice Hogan stressed that, although highly restricted, air travel between Ireland and continental Europe had not quite come to halt. He said the cancellation of flights to Germany did not mean there were no other routes of transfer between Ireland and Lithuania.

If, upon inquiry, it was clear that transport to Lithuania was not feasible within the short time remaining, then the postponement of the surrender order “might well have been inevitable”, he said. However, the case did not require a decided view on this hypothesis.

In his dissenting judgment, Mr Justice Woulfe said he considers the cancellation of flights on the normal transit avenue for surrender from Ireland to Lithuania to be capable of amounting to humanitarian grounds within the 2003 Act. He found there was no evidence that Lithuanian officials would have been able to organise an alternative mode of surrender within the extremely tight timeframe.

He adopted the reasoning of the Court of Appeal, which had rejected Mr Sciuka’s appeal, that “humanitarian” need not apply personally to the proposed extraditee and can pertain to the saving of other human lives or alleviation of human suffering.