High Court refuses surrender on flawed EAWs issued after acquittals, citing breach of mutual trust.

NEUTRAL CITATION NUMBER [2012] IEHC 535

THE HIGH COURT

Record No 2009/25 EXT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

- AND -

GILIOLA GHERINE

Respondent

____________________________________________________

ALSO/

THE HIGH COURT

Record No 2009/26 EXT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

- AND -

GIULIANO GHERINE

Respondent

JUDGMENT of Mr Justice Edwards delivered on the 30th day of November, 2012

Introduction:

This judgment is issued pursuant to s. 16(7) of the European Arrest Warrant Act, 2003 as amended by the European Arrest Warrant

(Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 (hereinafter “the Act of 2003 as amended”)

giving the Court’s reasons for refusing to make Orders in each of the above entitled proceedings under s. 16(1) of the Act of 2003 as

amended.

The circumstances of these cases

The respondents in these proceedings are each the subject of separate European Arrest Warrants issued by the Italian Republic on

the 3rd of October 2008 and transmitted to this State under the name, signature and seal of an issuing judicial authority for the

purposes of the European Arrest Warrant, namely., “Giudice Per Le Indagini Preliminari Presso II Tribunale Di Catanzaro”, [Judge for

preliminary investigations at the court of Catanzaro], whose representative was identified in Part (I) of the warrant in each case as

Antonio Battaglia, Judge for Preliminary Investigations.

These warrants were transmitted to the Irish Central Authority by the Italian Central Authority, namely “Ministero della Giustizi –

Direzione Generale delle Giustizia Penale – Ufficio II” [Ministry of Justice – General Directorate for Criminal Justice – Office 2], whose

representative was also identified in Part (I) of the warrant in each case as Ms Anna Gravina, Office Director. They were transmitted

under cover of a letter dated the 19th of January 2009 from the Italian Central Authority addressed both to the Irish Central Authority

and to SIRENE, and the letters were signed by one Antonio Laudati who is described as “General Director” and also as “Delegated by

the Minister of Justice”.

The warrant relating to each respondent, respectively, seeks the rendition of that respondent for the purpose of prosecuting him or

her for the offences particularised in Part (E) of the warrant. The respondents are understood to be siblings. Although their warrants

are not identical in all respects the offences to which their individual warrants relate are underpinned by a common factual matrix i.e.,

the respondents are each alleged to have participated in various ways in the activities of a illicit drug trafficking

organisation/enterprise. In the case of the respondent Giliola Gherine, the warrant seeking her rendition relates to two drugs offences,

each carrying a potential sentence of up to 30 years imprisonment under the law of the issuing State, and in respect of which

paragraph 2 of article 2 of the Framework Decision is invoked by the ticking of the box relating to “illicit trafficking in narcotic drugs

and psychotropic substances”. In the case of the respondent Giuliano Gherine, the warrant seeking his rendition relates to four drugs

offences, each again carrying a potential sentence of up to 30 years imprisonment under the law of the issuing State, and in respect

of which paragraph 2 of article 2 of the Framework Decision is again invoked by the ticking of the box relating to “illicit trafficking in

narcotic drugs and psychotropic substances”. One of the two offences with which Giliola Gherine was charged is identical to one of

the four offences with which Giuliano Gherine was charged.

The Irish Central Authority, having received both European arrest warrants in late January, 2009, caused them to be placed before

the High Court for endorsement as required by s. 13 of the Act of 2003 as amended. Both warrants were duly endorsed by the High

Court for execution in this jurisdiction on the 4th of February 2009.

On the 24th of April 2012 both warrants were executed by Detective Garda John O’Gorman who arrested both respondents at Clonmel

in the County of Tipperary. Following their respective arrests the respondents were each brought before the High Court in Dublin

pursuant to s. 13 of the Act of 2003 as amended. In the course of the s. 13 hearing evidence was received concerning their arrests

and a date was fixed for the purposes of s. 16 of the Act of 2003 as amended, and the respondents were remanded in custody in the

first instance to the date fixed. (They were both subsequently admitted to bail.) Thereafter the matter was adjourned from time to

time, ultimately coming before the Court on the 8th of November 2012 for the purposes of a surrender hearing.

The objections to surrender

The respondents filed identical Points of Objection in both sets of proceedings on the 2nd of July 2012 pleading inter alia double

jeopardy (ne bis in idem). These were supported by affidavits sworn by the solicitor acting for both respondents. It was claimed that

a judgment had been issued in the issuing State that in fact acquitted the respondents of some of the offences to which the

European arrest warrants relate, and further convicted them of the identical offence with which they had both been charged.

Moreover, the judgment in question was exhibited with the said affidavits.

In so far as it relates to Giliola Gherine, the judgment exhibited indicates that she was tried in absentia by the Court of Castrovillari

which delivered its verdict on the 18th of January 2011, acquitting her of one offence (the offence described as Count 4 within Part E

of her European arrest warrant) and convicting her of a second offence (the offence described as Count 15 within Part E of her

European arrest warrant). She was sentenced to 10 years and six months imprisonment in respect of the offence for which she was

convicted.

In so far as it relates to Giuliano Gherine, the judgment exhibited indicates that he was also tried in absentia by the Court of

Castrovillari. Again, that court which delivered its verdict on the 18th of January 2011, acquitted him of four offences (three of which

it appears were the offences described as Counts 2, 3 & 4, respectively, within Part E of his European arrest warrant) and convicted

him of a fifth offence (the offence described as Count 15 within Part E of his European arrest warrant). He was sentenced to 13 years

imprisonment in respect of the offence for which he was convicted.

Additional information

Arising out of these pleas in the respondent’s Points of Objection, the Irish Central Authority immediately sought further information

from the issuing judicial authority, and in particular sought to clarify whether what was being alleged by respondents was true and

accurate (because, if so, it would serve to undermine this Court’s jurisdiction to effect surrender on either of the European arrest

warrants in question.)

A reply was received by e-mail from the aforementioned Ms Anna Gravina on the 7th of November 2012 in the following terms:

“I represent that this Office has no jurisdiction in relation to the two above-mentioned subjects. From information

gathered shows [sic] that have been convicted by a judgment of the Court of Castrovillari of 18.1.2011. Gigliola GHERINE

penalty of ten years and six months in prison and Giuliano GHERINE penalty of thirteen years in prison.

The judgment was upheld by the Court of Appeal of Catanzaro and the process currently pending before the Court of Cassation in

Rome.”

Decision on the requests for surrender

The European arrest warrants in these cases were issued for the purposes of seeking the rendition of the respondents so that they

might be prosecuted for the offences set out in those warrants. It now turns out that they are each both convicted and acquitted

persons, and the fact that they have now been tried in the issuing state undermines this Court’s ability to act on the warrants now

before it. Even though the respondents are now convicted persons in respect of one of the offences covered by their respective

warrants, the jurisdiction of the Court to surrender them is still undermined. A person cannot be surrendered for the purpose of

serving a sentence in relation to an offence on foot of a warrant that seeks his or her rendition for the purpose of prosecuting him or

her for that offence.

The Court does not require to be addressed concerning, or to consider, whether or not there is compliance with Act of 2003 as

amended in other essential respects. Even if the warrants were entirely in order in all other respects, the problem presented by the

fact that the respondents have already been tried in the issuing state is insurmountable in terms of the present proceedings.

In the circumstances the Court cannot surrender the respondents for any of the offences to which their respective European arrest

warrants relate. The Court therefore refuses in each case to make an Order under section 16(1) of the Act of 2003, as amended.

The Court wishes to state, however, that it regards what has occurred in this case as disconcerting and very serious. Even though

the respondents were tried, and verdicts were rendered, in the issuing State as far back as the 18th of January 2011, neither the

issuing judicial authority, nor the Italian Central Authority, saw fit to communicate that fact to the Irish Central Authority, or to cause

it to be communicated to this Court as the executing judicial authority, until the 7th of November 2012, in excess of twenty two

months later and only the day before the respondents’ surrender hearings. They allowed the respondents to be arrested and deprived

of their liberty (albeit only briefly) on foot of jurisdictionally flawed warrants, and they allowed this Court to unwittingly deal with the

respondents for the last 7 months, as though they were fugitives, in respect of matters for which they had in fact been acquitted.

Moreover, in respect of the single offence for which they have both been convicted, neither the issuing judicial authority, nor the

Italian Central Authority, saw fit to ensure that this Court was advised that the respondents were no longer wanted for prosecution.

The Irish Central Authority should have been advised immediately (if it had been so advised it would in turn immediately have advised

this Court); the existing warrants should have been withdrawn; and if it was desired to pursue the respondents further it was

incumbent on the Italian authorities to issue new European arrest warrants covering only the offence for which the respondents have

each, respectively, been convicted and seeking their rendition for the purposes of having them serve the sentences of imprisonment

imposed upon them.

The European arrest warrant system depends upon member states having mutual trust and confidence in each other. Moreover, it is

predicated upon the principle of mutual recognition, which is described in recital no 6 to the Framework Decision as “the cornerstone

of judicial co-operation”. This Court was asked to “recognise” the European arrest warrants in this case on the basis of mutual

recognition, and further, on the basis of trust and confidence between member states, to give effect to European arrest warrants

that purported to seek the respondents for the purpose of prosecuting them, in circumstances where they had already been tried!

While there may not have been a deliberate attempt to abuse this Court’s process, what occurred in the present case, if replicated,

could potentially have implications for the trust and confidence which this Court currently has in relation to the Italian State, its

Courts and institutions.

S. 16(10) of the Act of 2003 provides (to the extent relevant) :

“If the High Court ……has decided not to make an order under subsection (1) or (2), it shall direct the Central Authority

in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reason

therefor specified in the direction, and the Central Authority in the State shall comply with such direction.”

The Court regards the matter as being of sufficient seriousness to invoke its power under s. 16(10) of the Act of 2003 as amended,

and to direct the Central Authority in the State to inform both the issuing judicial authority and Eurojust of the reasons for this

Court’s refusal to order surrender in each of these cases. To that end, I further direct the Central Authority in the State to transmit

this judgment to both the issuing judicial authority and to Eurojust.