Supreme Court: Coronavirus pandemic did not justify postponing the surrender of man to Lithuania

About this case:

• Citation:
  [2021] IESC 80
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

The man was due to be surrendered in February 2021 on foot of a European Arrest Warrant and flown to Lithuania via Germany.

The court held that the mere cancellation of flights from Ireland to Germany did not provide sufficient reason to postpone the surrender on humanitarian grounds. It was also held that the concept of judicial notice did not justify the postponement.

Background

The appellant had previously been convicted in Lithuania for armed robbery and the illegal possession of firearms. He had been sentenced to seven years’ imprisonment but did not serve the full sentence. The Lithuanian authority subsequently invoked the EAW procedure to transfer the man back from Ireland to Lithuania to serve the remainder of his sentence.

On 18 January 2021, the High Court granted an application by the Minister pursuant to the European Arrest Warrant Act 2003 to surrender the appellant to Lithuania. The surrender was due to be effected on 5 February 2021.

However, it transpired that all flights had been cancelled between Ireland and Germany to protect against the transmission of the virus. The Minister used major German airports as hubs for the transfer of prisoners to Lithuania and therefore it was not possible to use this method of transfer. The Lithuanian authority wrote a letter to the Irish authority seeking to postpone the surrender on this basis.

The Minister applied to the High Court on 10 February 2021 seeking to postpone the surrender of the appellant. The application was made pursuant to section 18 of the 2003 Act, which provided that a State may postpone the surrender of a prisoner if it was justified on humanitarian grounds.

The appellant objected to this postponement, stating that the unavailability of flights was not a humanitarian ground. It was said that the application should more properly have been brought under section 16, which allowed for a force majeure exception.

The High Court, and Court of Appeal on appeal, held that the sufficient humanitarian grounds had been demonstrated by the Minister, having regard to the fact that the limits on travel were intended to save lives. Further, the Court of Appeal held that the High Court was entitled to take judicial notice of the general international situation regarding Covid-19 and did not need to solely rely on the evidence of the Minister. The appellant appealed to the Supreme Court.

Supreme Court

Delivering judgment in the case, Mr Justice Gerard Hogan began by considering the legislative framework for the postponement of surrender under section 18 of the 2003 Act and the Council Framework Decision.

Having regard to the wording of Article 23 of the Framework Decision, the court held that a surrender could be “exceptionally” postponed for “serious humanitarian reasons” if there were “substantial grounds for believing that it would manifestly endanger the requested person’s life or health.” The court emphasised that any postponement of surrender was “confined to special and particularised circumstances” which were established in evidence.

It was held that a pandemic could not justify postponement “in and of itself.” This was particularly so where the appellant did not claim to be sick or that his transfer posed an unacceptable health risk. While air travel was restricted to essential cases, the effecting of an EAW was justified as essential travel, the court said.

Further, Mr Justice Hogan pointed out that there were a wide range of options were potentially open to the Minister and Lithuanian authority to effect the transfer. The court said these options were “improperly explored” and there was no reason that the mere cancellation of flights to Germany should prevent a surrender. It may have been the case that postponement was inevitable due to the short timeframes involved in EAW procedure, but that did not justify an order under section 18 of the 2003 Act.

In a separate concurring judgment, Mr Justice Charleton considered the issue of judicial notice. Referring to several authorities, the court stated that “the limit of judicial knowledge is drawn at what the community generally knows, at notorious facts and generally indisputable information, but does not extend into arcane study requiring expert testimony, facts centrally disputed by the parties and the occurrence or existence of what is not commonplace knowledge”.

Applying that comment to the present case, Mr Justice Charleton held that, while it may have been general knowledge that transport was restricted at the time, it was not right to suppose that all transport was not viable. The court said that the shutting of one route established nothing in the context of a surrender case.

Mr Justice Charleton also emphasised that a court hearing an EAW application was engaging in an inquisitorial exercise rather than determining an adversarial dispute. As such, a court was not limited to in its enquiry to what the parties put before it and a court could require parties to produce further evidence at its own motion.

Conclusion

The court held that the Minister did not establish that, at the time of surrender, sufficient humanitarian grounds existed to prevent the surrender of the appellant. The appeal was allowed.

Mr Justice Séamus Woulfe delivered a dissenting judgment, in which he took the view that the postponement was justified in the case based on the letter from the Lithuanian authority. Further, he held that judicial notice could be taken of the pandemic and that protection from the disease while travelling was a humanitarian ground.