A Lithuanian man whose extradition was frustrated after he twice refused to board a commercial flight due to take him back to Lithuania has won his Supreme Court appeal against a third order for his surrender.
The five-judge court’s significant unanimous judgment was given by Mr Justice William McKechnie who said issues arising from the appeal appeared to require “legislative reassessment” of sections of the European Arrest Warrant 2003.
Tomas Vilkas’s appeal centred on Section 16 of the 2003 Act and a January 2017 decision of the Court of Justice of the EU (CJEU) interpreting Article 23 of the Framework Decision on the European arrest warrant and surrender procedures.
Section 16 was intended to transpose Article 23.
Mr Vilkas is wanted in Lithuania to serve a four-year sentence imposed in 2012 for offences including robbery and unauthorised possession of a firearm.
The High Court made two orders for his surrender in July 2015 but he twice refused to board flights to Lithuania. A third order was then sought for his surrender via ferry and over land.
The net issue in the appeal was whether, when a person has not been surrendered within the time limits prescribed by Section 16 due to circumstances beyond the State’s control referred to as a “force majeure”, it is possible to extend the time for surrender and fix a new date for that purpose more than once.
The Supreme Court ruled there was no jurisdiction to fix a second date and granted Mr Vilkas’s appeal against a Court of Appeal finding otherwise. The Court of Appeal based its finding on the CJEU decision that Article 23 of the Framework Decision allows for the agreement of a new surrender date on more than one occasion.
Mr Justice McKechnie ruled the cumulative effect of the relevant and unambiguous Section 16 subsections means it is not possible to fix a new date more than once.
He rejected arguments by the State that the principle of conforming interpretation [between EU and domestic law] could be used to render the Section 16 provisions consistent with the CJEU’s opinion.
If surrender has not taken place within the timeframe of the original order for surrender made under the 2003 Act, or if a new surrender date has not been obtained within the time period, other provisions of Section 16 require the person must be discharged and the surrender process is at an end, he said.
Those subsections also could not be read so as to accord with the CJEU decision, he added.
‘Legislative reassessment’
The judge noted, when the appeal was at hearing, Mr Vilkas was detained in Northern Ireland under the same European Arrest Warrants. If he successfully resists his surrender there and returns here, the judge asked, what are the relevant authorities to do in order to comply with the CJEU decision?
Such issues appeared to call for a “legislative reassessment” of sections of the 2003 Act.
Earlier, he noted the CJEU had said the concept of force majeure as provided for in Article 23(3) of the Framework Decision must be interpreted strictly. The CJEU said a case of force majeure can justify extending the period for surrender only insofar as that case of force majeure means their surrender within the period laid down is “prevented”.
The Supreme Court dismissed a separate appeal by a Polish man, Piotr Paawel Skiba, which raised similar issues.
After Mr Skiba’s surrender was ordered by the High Court, plans were made to return him to Poland on a commercial flight on December 22nd, 2016. His solicitor phoned the Garda Extradition Unit ten days before to say Mr Skiba had a fear of flying.
On December 22nd, Mr Skiba refused to pass the departure gate and the effect of the commotion was the flight captain refused to let him board.
A second order for his surrender was granted, and a new surrender date set, on grounds the first was not executed due to a force majeure event.
Although his surrender was successfully effected in January 2017, the Supreme Court agreed to hear an appeal over whether the Court of Appeal correctly determined the applicable law.
Mr Justice McKechnie agreed with the COA Mr Skiba’s resistance to boarding the plane was a circumstance beyond the State’s control and therefore the fixing of a new surrender date was appropriate.
He disagreed the solicitor’s phone call meant the refusal to board the aircraft was foreseeable.
