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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Minister for Justice & Equality -v- Martin Gerard Holden [2013] IEHC 62 (11 February 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H62.html Cite as: [2013] IEHC 62 |
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Judgment Title: The Minister for Justice & Equality -v- Martin Gerard Holden Neutral Citation: [2013] IEHC 62 High Court Record Number: 2011 208 EXT Date of Delivery: 11/02/2013 Court: High Court Composition of Court: Judgment by: Edwards J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 62 THE HIGH COURT [2011 No. 208 EXT.] BETWEEN/ THE MINISTER FOR JUSTICE AND EQUALITY Applicant - AND -
MARTIN GERARD HOLDEN Respondent JUDGMENT of Mr Justice Edwards delivered on the 11th day of February, 2013 Introduction The respondent does not consent to his surrender to the Republic of Lithuania. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied. Uncontroversial s. 16 issues The Court has also received and has scrutinised a true copy of the European arrest warrant in this case. Further, it has of its own initiative taken the opportunity to inspect the original European arrest warrant which is on the Court’s file and which bears this Court’s endorsement. The Court is satisfied following its consideration of these matters that:
(b) The warrant was duly executed; (c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued; (d) The warrant is in the correct form; (e) The warrant purports to be a prosecution type warrant and the respondent is wanted in Lithuania for trial in respect of the five offences particularised in Part E of the warrant. Further, the domestic decision upon which the European arrest warrant is based is a ruling of Vilnius City 3rd District court of the 29th July, 2010 “to impose measure of constraint – arrest”; (f) The issuing judicial authority has invoked paragraph 2 of article 2 of Council Framework Decision 02/584/J.H.A. on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereinafter referred to as “the Framework Decision”) in respect of all five offences to which the warrant relates, by the ticking of the box in Part E.I of the warrant relating to “swindling”. Accordingly, subject to the Court being satisfied that the invocation of paragraph 2 of article 2 is valid (i.e. that the minimum gravity threshold is met, and that there is no basis for believing that there has been some gross or manifest error), it need not concern itself with correspondence; (g) The minimum gravity threshold in a case in which paragraph 2 of article 2 of the Framework Decision is relied upon is that which now finds transposition into Irish domestic law within s. 38(1)(b) of the Act of 2003, as amended, namely that under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years. Each of the five offences which are the subject matter of the European arrest warrant in this case carries a potential penalty of up to eight years imprisonment. Accordingly, the minimum gravity threshold is comfortably met in each case; (h) There is no reason, upon a consideration of the underlying facts set out in Part E of the warrant, to believe that the ticking of the box relating to swindling was in error; (i) No issue as to trial in absentia arises in the circumstances of this case and so no undertaking is required under s. 45 of the Act of 2003; (h) There are no circumstances that would cause the Court to refuse to surrender the respondent under s.22, s.23 or s.24 of the Act of 2003, as amended. The Points of Objection The respondent has filed Points of Objection dated the 28th March, 2012. This document contains nine grounds (or purported grounds) of objection set out in numbered paragraphs. However, some of these were not proceeded with, while others were raised prematurely (in as much as they purported to set out grounds for a postponement of surrender under s. 18 of the Act of 2003 in the event of the Court being disposed to make an order under s. 16(1) of the Act of 2003). Accordingly, it is only necessary for the purposes of this judgment to set out those points of objection that were in fact proceeded with, and that were relevant to whether or not the Court should make an order under s. 16(1). The relevant points were:-
4. The surrender of the Respondent is prohibited by s.21A of the European Arrest Warrant Act 2003 (as amended) in that no decision has been made to charge the Respondent with any alleged offence. 5. The surrender of the Respondent is prohibited by s.21A of the European Arrest Warrant Act 2003 (as amended) in that no decision has been made to try the Respondent with any alleged offence.” The respondent has filed an affidavit sworn by him on the 23rd April, 2012. In it he avers to the following matters that seem to the Court to be potentially relevant to the objections raised:-
“The Suspect is suspected of committing two serious offences and attempting to commit two more serious offences. During the pre-trial investigation Martin Gerard Holden violated the terms of his bail and absconded from the investigation, his whereabouts have not been determined and he has no substantial social ties to Lithuania. Seeking to guarantee the Suspect’s presence during the proceedings, an uninterrupted pre-trial investigation and the hearing of the case in Court it is appropriate to apply a supervision measure – arrest and custody. Pursuant to Section 119 – 113, 125, 130 and 131 of the Criminal Proceedings Code of the Republic of Lithuania the Judge has directed the application of a supervision measure – arrest and custody of the Suspect Martin Gerard Holden.” I beg to refer to a copy of the certified translation of the Judgement of the Vilnius City 3rd District Court dated the 25th of May, 2010 upon which marked with the letter “A” I have signed my name prior to the swearing hereof. 7. I say that it is clear from the content of the said Judgement of the Court that no decision has been made to charge and/or to try your Deponent with any offences and it is further clear that the process remains at the pre-trial investigation stage. 8. It is further of note that an application was made on behalf of your Deponent during the hearing on the 25th day of May, 2010 that the Public Prosecutors application should be rejected on the grounds that “the case had no legal perspective, that issues between the parties should be resolved by way of civil proceedings, that the parties are in talks and there is no point in applying the supervision measure.” 9. I say that your Deponent was arrested on or about the 12th day of February, 2010 on foot of a similar “supervision measure”, and was detained in custody until the 25th day of February, 2010 when by direction of the Public Prosecutor your Deponent was released on bail. 10. I say that when I was arrested on or about the 12th day of February, 2010 I was detained in a Police Holding Area in Vilnius City. On the first night I was held there, there were approximately twelve to thirteen people detained in the same room. The room contained metal beds with a sheet metal surface and no mattress. I was given what can only be described as a dirty blanket. I say that it was mid-February and the temperature was approximately minus twenty degrees outside. I say that I was forced to sleep with all of my clothes and a heavy coat on. In the absence of any adequate insulation the said room remained extremely cold. I say that all persons were assigned bunk beds in the same room and there was a toilet and sink located in one corner with no means of privacy. I say that I was held in this Holding Area for seven nights. 11. The following day, at approximately 4:00pm I was taken to a Courthouse. I say and believe that an application for bail was refused and I was returned to the same holding cell that night. I say that I was detained over a “bank holiday weekend” but unlike in Ireland it appeared that the weekend lasted until the following Wednesday. During all of this time I was confined to the same small room with various people being held on each individual night. It was not possible to eat anything. Despite the fact that we were given food it was wholly inedible and for the duration of the seven nights that I was held there I consumed only water. 12. I say that on the following Thursday (the 18th day of February 2010) [I was moved to a Detention Centre in the centre of Vilnius. I say that I was detained in a prison cell with three to four other people including one person convicted of various drugs offences and another person having been convicted or murder. I say that one of the other prisoners, who had been sentenced to fourteen years imprisonment, spent the entirety of his duration in the cell beating his head against the concrete wall and screaming and shouting. I say and believe that this was very distressing. 13. I say that I was held in the Detention Centre for another seven days until my release on the 25th day of February, 2010. I say that the room in which I was held was approximately eight feet by twelve feet in dimension and as previously stated was used to detain three to four men at any one time. Further, I say that again as it was minus twenty degrees on the outside and there was no adequate insulation the room was extremely cold. I was again forced to spend the entire of my time with all of my clothes and coat on. The bed consisted of steel sheeting with a dirty and very thin mattress. Again I was given a dirty blanket/duvet which was wholly inadequate for the temperatures I was exposed to. I say that the toilet and sink were again contained in the same small room. 14. I say that the walls of the cell in the Detention Centre were smeared in excrement. Most of the smears were in fact writing and contained dates going back to 1979. It was very clear that no effort was made to clean the prison cell and the persistent smell was revolting. 15. I say and believe that whilst I was held in the Detention Centre I was permitted to go outside to the exercise yard for approximately one hour per day. I say that the yard was very small 20ft x 20ft. However, as it was minus twenty degrees on the outside and snowing heavily this was not an option and therefore I was confined to the same cell for the duration of my period of detention. 16. I say that the treatment afforded to me for the period between the 12th of February, 2010 and the 25th of February, 2010 whilst I was detained by the authorities at Vilnius was wholly inhuman and degrading, and I say and believe and am advised, constituted a breach of human rights. 17. I say that it is also alleged in the Warrant that I absconded and breached my conditions of bail. I have been advised by my Lithuanian Lawyer that if I am returned to the Republic of Lithuania that I will be held in custody in accordance with the “supervision measure” for the duration of the remaining pre-trial investigation and if I am sent forward for trial on indictment for the duration of the trial. I say that if I am held in custody for that period of time, such a period of custody, and, conditions of custody will constitute a breach of my human rights. 18. I say that a number of reports have been prepared by independent, international, entities which have found that the prison conditions in the Republic of Lithuania are of such a poor standard as to constitute inhuman and degrading treatment of the detainees held therein. I beg to refer to a copy of the said reports upon which fixed together and marked with the letters “B” I have signed my name prior to the swearing hereof. 19. I therefore pray this Honourable Court to refuse to surrender your Deponent pursuant to the European Arrest Warrant as requested.” Additional information
In general this means that Ireland is unable to surrender a person where they are being sought for questioning and investigation to allow a decision to be made whether or not to charge (indict) the person with the offence or for a decision to be made whether to put the person on trial. Where, however, a warrant is issued during the course of an investigation but there is an intention, at the time the warrant is issued, to put the person on trial, then it is possible for Ireland to surrender the subject. The issues upon which we need to be clear are whether the warrant has been issued either where the subject has already been charged (indicted) or with the intention of charging (indicting) the subject and with the intention of putting the subject on trial. It is in order to clarify the position in this case that we require the following information: (i) Has a decision been made to charge (indict) the requested person?
b. If it has, please provide a copy of this document. (iii) Does a decision to put the person on trial have to be made separately from the decision to charge him or her and, if so, has a decision to put the requested person on trial been made in this case? In addition please provide any other information that you feel might be useful in addressing this issue. (7) With regard to the issue of prison conditions as raised in the respondent's points of objection, affidavit and supporting exhibits, please provide any information the Lithuanian authorities may wish to have presented to the High Court in order to counter the claims made by the respondent in relation to prison conditions in Lithuania.”
Therefore, Martin Gerard Holden was aware what he was suspected of, moreover, during consideration of imposing the measure of constraint - arrest he was personally present at the hearing. For the purpose of clarification we would like to provide an outline of the criminal procedure stages in Lithuania. In the Republic of Lithuania the criminal procedure is defined by the Code of Criminal Procedure. It was approved on 14 March 2002 by the Law No. 1X-785 and came into force on 1 May 2003. The said code specifies the following procedural stages of the criminal procedure: 1) pre-trial investigation; 2) trial procedure at the courts of first instance; 3) procedure of appeal; 4) enforcement of rulings and judgements; 5) procedure of cassation. The criminal case in respect of Martin Gerard Holden is in the first stage of the criminal procedure, which in the Republic of Lithuania is called the pre-trial investigation. In the course of the first stage of the criminal procedure, i.e. in the pre-trial investigation, the prosecutor and the pre-trial investigation officer, within the limits of their competence, shall take all measures provided by the law in the shortest possible time to thoroughly disclose the criminal act, to prosecute the perpetrators and properly apply the law. The data relevant to the case is collected, checked and assessed at this stage, thus, all steps are taken to prepare the case for the second stage of the criminal procedure - the trial procedure at the court of first instance. During the pre-trial investigation, the person who possibly committed a criminal act is the suspect. The person shall be deemed the accused person from the moment when the prosecutor, while finalizing the pre-trial investigation, adopts a bill of indictment, whereof he transfers to the court together with the case material. The accused shall be a party to judicial proceedings (Article 22 of the Code of Criminal Procedure of the Republic of Lithuania). With regard to the conditions in imprisonment institutions in the Republic of Lithuania, we herewith send commentaries of the Ministry of Justice of the Republic of Lithuania (copy of a letter No. (1.39.)7R-3701 dated 16 May 2012 together with their translation into the English language) pertaining to another case concerning a surrender pursuant to the European arrest warrant. Thank you for cooperation. ANNEXES: 1. Copy of the decision of the prosecutor of Vilnius City District Prosecutor Office to recognize the person as a suspect together with the confirmation that the decision in question has been served - 3 pages; 2. Copy of the letter of the Ministry of Justice of the Republic of Lithuania No. (1.39.)7R-3701 dated 16 May 2012 with its translation into the English language.” It is convenient to address the annexed documents in reverse order. In so far as the decision of the prosecutor to recognise the respondent as a suspect is concerned, and which is dated the 5th November, 2009, the Court is in receipt of a translation of this document and it is appropriate to refer to it at this stage. It is in the following terms:- “DECISION TO ACKNOWLEDGE AS A SUSPECT 5 November 2009 Vilnius
Sufficient data was collected during the pre-trial investigation which confirms that Martin Gerard Holden, a citizen of the Republic of Ireland, born on 2 February 1966, committed a criminal act defined in the Criminal Code of the Republic of Lithuania, Article 182, paragraph 2, however, in the absence of the possibility of interviewing Martin Gerard Holden about the criminal act that he is suspected of, since his whereabouts is unknown, in accordance with the provisions of the Code of Criminal Procedure of the Republic of Lithuania, Article 21, Martin Gerard Holden is to be acknowledged as a suspect of the criminal act defined in the Criminal Code of the Republic of Lithuania, Article 182. Under the Code of Criminal Procedure of the Republic of Lithuania, Article 21.
2. On the basis of this Decision to consider that MARTIN GERARD HOLDEN, born on 2 February 1966, is suspected of the criminal act defined in the Criminal Code of the Republic of Lithuania, Article 182, paragraph 2, namely, He is suspected of having acquired, by deceit, for his benefit, another person's property of high value, namely:
The suspect has the following rights defined under Article 21, paragraph 4, of the Criminal Procedure Code of the Republic of Lithuania: to know what he/she is suspected of; to have a counsel for the defence from the moment of detention or first interview; to give testimony; to produce documents and items relevant to the investigation; to make requests; to raise objections; to familiarize himself with the pre-trial investigation material; to lodge complaints on the actions and decisions of the pre-trial investigation officer, prosecutor or pre-trial investigation judge. The Decision was served and the suspect's rights were explained on 11 February 2010. Suspect /Signature/ Martin Gerard Holden Senior investigator /Signature/ Ivona Purkiniene”
It might be helpful for the purpose of avoiding confusion if we set out the position under Irish law as determined by the Irish Supreme Court. The Irish Courts will only surrender a person sought for the purpose of prosecution if the appropriate authority in the issuing state intends to put the person on trial for the offences and surrender is sought to realise that intention. This does not mean that the investigation phase must be closed, it can continue. What is not permissible is for the realisation of the intention to put the person on trial to be dependent on such further investigation producing sufficient evidence for that purpose. I am to ask therefore whether in this case that is the position in respect of Mr. Holden?”
Please also be advised that pursuant to Paragraph 1 of Article 218 of the Code of Criminal Procedure of the Republic of Lithuania, the prosecutor being convinced that sufficient data was collected during the pre-trial investigation, which would substantiate the suspect's guilt in relation to commission of the criminal act, declared that the pre-trial investigation has been completed. In order to attain such conviction of the prosecutor, to finalize the pre-trial investigation, to draw up an indictment and to bring the case with the said indictment to the court, it is necessary to execute the rest of the proceedings; therefore, personal participation of Martin Gerard Holden is necessary in the criminal procedure which is taking place in Lithuania.”
Following consultation with our legal advisors, we have been advised to request copies (accompanied by certified translations) of the following documents: (i) The ruling of Vilnius City 3rd District Court dated 12th February 2010 in which a measure of constraint-arrest for 1 month was imposed. (ii) The decision of the Vilnius City District Prosecutor's Office dated 25th February 2010 to release Martin Gerard Holden on bail. (iii) The ruling of Vilnius City 3rd District Court, dated 25th May 2010 in which measure of constraint-arrest and announcing that Mr. Holden as wanted [sic], was imposed (iv) The ruling of Vilnius City 3rd District Court dated 29th July 2010, supplementing one criminal act to the suspicions and imposing a measure of constraint-arrest.” The translated ruling of the 12th February, 2010 is in the following terms:- “VILNIUS CITY THIRD DISTRICT COURT RULING 12 February 2010 Vilnius
Has established as follows: The data collected during the pre-trial investigation indicates that suspect Martin Gerard Holden acquired, by deceit, for his benefit, another person’s property of high value, namely:
Data showing that suspect Martin Gerard Holden committed the crime incriminated to him is the following: material received from Qatar law-enforcement authorities according to the request for legal assistance, material received from the bank Swedbank AB (former Hansabankas AB) and from DnB NORD bank AB, material received from Irish law-enforcement authorities and other case materials. Arrest as a pre-trial supervision measure should be imposed, since by taking less strict pre-trial supervision measures it is impossible to attain the goals established in the Code of Criminal Procedure of the Republic of Lithuania, Article 119, of ensuring participation of the suspect in the proceedings and an unhindered pre-trial investigation, and of preventing new criminal acts, since it is reasonably believed that the suspect will go into hiding from the pre-trial investigation officers, prosecutor or court, as the above-mentioned person is suspected of a serious crime carrying a severe prison sentence only, in accordance with the law. The pre-trial investigation did not establish the whereabouts of Martin Gerard Holden, therefore, a wanted notice should be issued. Also he does not have a permanent place of residence in Lithuania, does not have a legal source of living and has no strong social ties with Lithuania. The materials received from the Department of Justice, Equality and Law Reform of the Republic of Ireland according to the request for legal assistance show that he with his family does not live at the registered address of the place of residence and has no property. In the case, foreign citizens who suffered property damage in the amount of LTL 254,962 from the crime are to bring civil actions for damages. The suspect can try to avoid payment of damages by hiding from prosecution. All actual data collected in this case indicates that arrest as a pre-trial supervision measure is necessary, since by taking other pre-trial supervision measures, without restricting the liberty of suspect Martin Gerard Holden, there is no possibility for ensuring unhindered investigation of the case and court hearing. Moreover, the suspect will commit further crimes defined in the Code of Criminal Procedure of the Republic of Lithuania, Article 122, paragraph 4. Reasonable assumption that the person can commit at least one of the crimes defined in the Code of Criminal Procedure of the Republic of Lithuania, Article 122, paragraph 4, can be confirmed by information on that person's role in committing crimes, suspicion notification of the commission of several crimes, receipt of means of subsistence from criminal activity, the victims’ and witnesses’ testimony and other data. It is laid down in Decision No. 50 of the Senate of the Supreme Court of Lithuania of 30 December 2004 concerning Case Law in Imposing Arrest and Home Arrest, and in Extending the Arrest Period, paragraph 1, sub-paragraph 10, that “On the grounds indicated in the Code of Criminal Procedure of Republic of Lithuania, Article 122, paragraph 1, subparagraph 3, arrest can be imposed or extended, if a person suspected of at least one of the crimes defined in the Code of Criminal Procedure of the Republic of Lithuania, Article 122, paragraph 4.” Martin Gerard Holden is suspected of serious crimes. The characterisation of Martin Gerard Holden shows that for him crimes have become his lifestyle; therefore, there is quite a high probability that, if freed, he can commit further crimes. The number of criminal acts and the circumstance that, in the Republic of Lithuania, Martin Gerard Holden does not have any legal source of living allow a reasonable assumption that proceeds of crime are or can be the source of living of Martin Gerard Holden. Request is made for keeping suspect Martin Gerard Holden under arrest and for-setting a two-month arrest period. The suspect and his counsel for defence asked for the refusal of the prosecutor's request. The prosecutor's request is to be granted. By taking less strict pre-trial supervision measures against suspect Martin Gerard Holden than arrest it is impossible to attain the goals established in the Code of Criminal Procedure of the Republic of Lithuania. Article 119, and to ensure participation of the suspect in the proceedings, an unhindered pre-trial investigation and court hearing, and also to prevent new criminal acts. This conclusion is made after the evaluation of the fact that the material received from Qartar law-enforcement authorities according to the request for legal assistance, material received from the bank Swedbank AB (former Hansabankas AB) and from DnB NORD bank AB, and other case materials form a sufficient basis for the suspicion that suspect Martin Gerard Holden could have committed the acts incriminated to him. Although Martin Gerard Holden stated that he has a place of residence in Lithuania, is married and has no criminal record, he is suspected of two premeditated serious crimes and, if found guilty, can receive a long prison sentence. A wanted notice was issued in the case. In these circumstances, there is a firm basis for assuming that suspect Martin Gerard Holden may go into hiding from the pre-trial investigation officers, prosecutor or court (Code of Criminal Procedure of the Republic of Lithuania, Article 122, paragraph 2). Moreover, he is suspected of two serious crimes defined in the Criminal Code of the Republic of Lithuania, Article 182, paragraph 2; therefore, it should be concluded that the suspect may commit new crimes (Code of Criminal Procedure of the Republic of Lithuania, Article 122, paragraph 4). In order to prevent new possible criminal acts and to ensure participation of suspect Martin Gerard Holden in the proceedings, an unhindered pre-trial investigation and court hearing, suspect Martin Gerard Holden. identification number 91RL6602026M0612058, should be kept under arrest as a pre-trial supervision measure which was imposed by the Decision of Vilnius City Third District Court of 10 November 2009 and a one-month arrest period should be set. In accordance with the Code of Criminal Procedure of the Republic of Lithuania, Article 119, Articles 121-123, Article 125 and Article 130, Has decided as follows: To keep suspect Martin Gerard Holden, identification number 9IRL6602026M0612058, born in Ireland on 2 February 1966, under arrest as a pre-trial supervision measure which was imposed by the Decision of Vilnius City Third District Court of 10 November 2009. To set a one-month arrest period. The arrest period should be calculated from 10 February 2010, the date on which the suspect was detained. The suspect and his counsel of defence can appeal against the Ruling to Vilnius Regional Court through Vilnius City Third District Court within 20 days of its issue. Judge /Signature/ Alberta Baltušytė
“VILNIUS CITY DISTRICT PROSECUTOR'S OFFICE DECISION TO IMPOSE PRE-TRIAL SUPERVISION MEASURES: BAIL AND SEIZURE OF DOCUMENTS 25 February 2010 Vilnius
Has established as follows: Vilnius County Police Headquarters, Crime Investigation Board, Economic Crime Investigation Division has been conducting a pre-trial investigation in case No. 10-2-470-07 on the basis of the elements of the crime defined in the Criminal Code of the Republic of Lithuania, Article 182(2) concerning swindling. On 11 February 2010, Martin Gerard Holden was served with the notification of suspicion of the criminal acts defined in the Criminal Code of the Republic of Lithuania, Article 182(2) concerning fraudulent acquisition of another person's property of high value for his benefit, namely:
During the pre-trial investigation, a wanted notice for Martin Gerard Holden had been issued on 12 November 2009 and arrest as a pre-trial supervision measure which had been imposed by the Decision of Vilnius City Third District Court of 10 November 2009 was left in effect by the court Decision of 12 February 2010 when the suspect was detained. Evaluation of the seriousness of the criminal acts which are under investigation in the case, i.e. the fact that Martin Gerard Holden is suspected of two serious crimes, evaluation of the data characterising the suspect, i.e. the fact that he has no criminal record in Lithuania, evaluation of his social ties in Lithuania, i.e. the fact that he has a place of residence in Lithuania and is married, and evaluation of the amount of the sum that has to be credited to the deposit account of the prosecutor's office as a deposit show that several less serious pre-trial investigation measures than arrest, i.e. bail and seizure of documents, should be imposed at the same time on suspect Martin Gerard Holden, identification number 9IRL6602026M0612058, in order to attain the goals established in the Code of Criminal Procedure of the Republic of Lithuania, Article 119, of the participation of the suspect in the proceedings, an unhindered pre-trial investigation and a court hearing, and in order to prevent new criminal acts. In reference to the above and in accordance with the Code of Criminal Procedure of the Republic of Lithuania. Article 119, Article 121, Article 125, Article 133 and Article 134, Has decided as follows: 1) To set bail at LTL 50,000 (fifty thousand) for suspect Martin Gerard Holden, identification number 9IRL6602026M0612058, as a pre-trial supervision measure; 2) The amount of the bail making up LTL 50,000 (fifty thousand) has to be paid into the deposit account No. LT107044060000304886 (SEB bankas AB, Gedimino Ave. 12, Vilnius) of Vilnius City District Prosecutor's Office by bail giver Martin Gerard Holden, identification number 9IRL6602026M0612058 or other persons; 3) To impose a pre-trial supervision measure of seizure of documents on suspect Martin Gerard Holden, identification number 91RL6602026M0612058; 4) To seize the passport of the citizen of the Republic of Ireland No. PT1850211 issued on 17 January 2008 from the suspect; 5) To issue the suspect with the document seizure note. Prosecutor /Signature/ Gaudentas Balčiūnas The Decision has been translated to me and announced on 25 February 2010. The duty has been explained to me, if summoned, to appear before the pre-trial investigation officer, prosecutor, judge or the court, not to interfere with the course of the proceedings and not to commit new criminal acts. I pledge to fulfil this duty. I have been warned that, if I neglect this duty, the bail will pass to the state and pre-trial supervision measures imposed by this Decision can be replaced with tougher ones. Suspect /Signature/ Martin Holden The payment of LTL 50,000 (fifty thousand) litas was made by Mariana Leščenko, identification number 47604201359, at the bank Swedbank AB on 19 February 2010. Payment document: payment order of 19 February 2010. Prosecutor /Signature/ Gaudentas Balčiūnas I have received a copy of the decision: Suspect 25-02-2010 M Holden (Signature)” “VILNIUS CITY THIRD DISTRICT COURT RULING 25 May 2010 Vilnius
Has established as follows: The data collected during the pre-trial investigation indicates that suspect Martin Gerard Holden acquired, by deceit, for his benefit, another person's property of high value, namely:
Data leading to the conclusion that the suspect could have committed the criminal act incriminated to him is the following: material received from Qatar law-enforcement authorities according to the request for legal assistance, material received from the bank Swedbank AB (former Hansabankas AB) and from DnB NORD bank AB, material received from Irish law-enforcement authorities according to the request for legal assistance, the victims’ testimony, replies from the State Enterprise Centre of Registers and other case materials. During the pre-trial investigation, a wanted notice for Martin Gerard Holden had been issued on 12 November 2009 and arrest as a pre-trial supervision measure which had been imposed by the Decision of Vilnius City Third District Court of 10 November 2009 was left in effect by the court Decision of 12 February 2010 when the suspect was detained. By the Decision of the prosecutor of 25 February 2010, the suspect was released from custody and, by the Decision of 25 February 2010, two less strict pre-trial supervision measures than arrest - bail and seizure of documents - were imposed. Martin Gerard Holden, however, violated the conditions of the pre-trial supervision measures and went into hiding from pre-trial investigation officers, the prosecutor and the court. If summoned, he fails to appear before pre-trial investigation officers, and he does not live at the residential address: Ukmergės 300C-52, Vilnius, Republic of Lithuania. The prosecutor requests the imposition of arrest as a pre-trial supervision measure on the suspect. The counsel for defence of the suspect has asked for the refusal of the prosecutor's request. He has stated that the case has no judicial perspective, the relations between the parties should be tackled by means of civil procedure and the parties are conducting negotiations, therefore there is no need to impose the strictest pre-trial supervision measure on the suspect. The prosecutor’s request should be granted. The suspect is suspected of two serious crimes and of an attempt to commit two more serious crimes. During the pre-trial investigation, Martin Gerard Holden violated the conditions of the pre-trial supervision measures and went into hiding from the investigation, his whereabouts have not been determined and he has no strong social ties with Lithuania. In order to ensure the participation of the suspect in the proceedings, an unhindered pre-trial investigation and a court hearing, it is purposeful to impose arrest as a pre-trial supervision measure on him. In accordance with the Code of Criminal Procedure of the Republic of Lithuania, Articles 119-123, Article 125, Article 130 and Article 131, the judge
The suspect or his counsel for defence can appeal against this Ruling to Vilnius Regional Court through Vilnius City Third District Court within 20 days of its issue. Prosecutor /Signature/ D. Korsakovas” “VILNIUS CITY THIRD DISTRICT COURT RULING 29 July 2010 Vilnius
Has established as follows: The data collected during the pre-trial investigation indicates that suspect Martin Gerard Holden acquired, by deceit, for his benefit, another person's property of high value, namely:
Data leading to the conclusion that the suspect could have committed the criminal act incriminated to him is the following: material received from Qatar law-enforcement authorities according to the request for legal assistance: material received from the bank Swedbank AB (former Hansabankas AB) and from DnB NORD bank AB, material received from Irish law-enforcement authorities according to the request for legal assistance, the victims' testimony, replies from the State Enterprise Centre of Registers and other case materials. During the pre-trial investigation, a wanted notice for Martin Gerard Holden had been issued on 12 November 2009 and arrest as a pre-trial supervision measure which had been imposed by the Decision of Vilnius City Third District Court of 10 November 2009 was left in effect by the court Decision of 12 February 2010 when the suspect was detained. By the Decision of the prosecutor of 25 February 2010, the suspect was released from custody and, by the Decision of 25 February 2010, two less strict pre-trial supervision measures than arrest - bail and seizure of documents - were imposed. Martin Gerard Holden, however, violated the conditions of the pre-trial supervision measures and went into hiding from pre-trial investigation officers, the prosecutor and the court. If summoned, he fails to appear before pre-trial investigation officers, and he does not live at the residential address: Ukmergės 300C-52, Vilnius, Republic of Lithuania. By the Decision of Vilnius City Third District Court of 25 May 2010, arrest as a pre-trial supervision measure was imposed on Martin Gerard Holden. On 29 July 2010, G. Balčiūnas, prosecutor at the Division of Vilnius City District Prosecutor's Office reapplied to the pre-trial investigation judge to impose arrest as a pre-trial supervision measure on the suspect, since suspect Martin Gerard Holden's suspicion had been supplemented with one more episode. The counsel for defence of the suspect has asked for the refusal of the prosecutor's request. He has stated that the case has no judicial perspective, the relations between the parties should be tackled by means of civil procedure and the parties are conducting negotiations, therefore there is no need to impose the strictest pre-trial supervision measure on the suspect. The prosecutor’s request should be granted. The suspect is suspected of two serious crimes and of an attempt to commit three more serious crimes. During the pre-trial investigation, Martin Gerard Holden violated the conditions of the pre-trial supervision measures and went into hiding from the investigation, his whereabouts have not been determined and he has no strong social ties with Lithuania. In order to ensure the participation of the suspect in the proceedings, an unhindered pre-trial investigation and a court hearing, it is purposeful to impose arrest as a pre-trial supervision measure on him. In accordance with the Code of Criminal Procedure of the Republic of Lithuania, Articles 119-123, Article 125, Article 130 and Article 131, the judge
The suspect or his counsel for defence can appeal against this Ruling to Vilnius Regional Court through Vilnius City Third District Court within 20 days of its issue. Prosecutor /Signature/ D. Korsakovas” The respondent’s submissions The Court’s attention was drawn to the fact that the warrant commences with request by the Prosecutor General that the respondent “be arrested and surrendered for the purposes of conducting a criminal prosecution.” It was submitted that this must be viewed in the context of the information in Part F of the warrant which appears under the heading “Other circumstances relevant to the case (optional information) and states that:-
It was further urged that when one goes on subsequently to look at some of the further material that was made available by the issuing judicial authority it provides support for the proposition that the case was still under active investigation. Counsel for the respondent pointed in particular to the following reference in the letter from the issuing judicial authority dated the 8th June, 2012, in response to the applicant’s letter of the 25th May, 2012 (which counsel characterises as accurately and clearly setting out the position in Irish law): The issuing judicial authority stated (inter alia):-
The criminal case in respect of Martin Gerard Holden is in the first stage of the criminal procedure, which in the Republic of Lithuania is called the pre-trial investigation.” In addition, it was submitted, the applicant had asked the direct question “Has a decision been made to charge (indict) the requested person?”, and the response received was the passage just quoted. It was urged that what can be inferred from this is that the direct answer to the question asked is “No, he is at the pre-trial investigation stage”. Moreover, the point is made that this question is almost immediately followed by the further question “If a decision to charge (indict) the requested person has been made does this mean that a decision to put the requested person on trial has also been made?”, in circumstances where the position in Irish law had earlier been set out in crystal clear terms. This second question is not directly, or even indirectly, answered. Rather a fairly nuanced response to the query was provided which, it was urged, does not indicate or flag up any lack of understanding as to what was being asked, and which sought to side-step the issue. The reply was in these terms:-
During the pre-trial investigation, the person who possibly committed a criminal act is the suspect. The person shall be deemed the accused person from the moment when the prosecutor, while finalizing the pre-trial investigation, adopts a bill of indictment, whereof he transfers to the court together with the case material. The accused shall be a party to judicial proceedings (Article 22 of the Code of Criminal Procedure of the Republic of Lithuania).” Counsel for the respondent also draws to the Court’s attention that throughout every one of the documents containing Decisions of the Prosecutor, and Rulings of the Vilnius City 3rd District Court, the respondent is referred to as the “suspect” and not as the “accused”. In relation to the s. 21A(2) presumption, counsel for the respondent submitted that he was entitled to rely on material put forward by the issuing judicial authority for the purpose of contending that that which is presumed stands rebutted. While he acknowledged that his client bears the evidential burden in terms of rebutting the s. 21A(2) presumption, he contended that once the presumption “had become unsettled” by the response received to the initial request for additional information, in circumstances where the nature of the query raised was clear and unambiguous, and yet it was not directly answered, the Court should treat the presumption as having been rebutted and proceed to enquire into whether, as of the date on which the European arrest warrant was issued, a decision had in fact been made to charge and try the respondent in respect of all five of the offences to which the warrant relates. It was submitted that in all the circumstances of the case this Court could not be satisfied on the information provided to it that a decision had been made to charge and try the respondent in respect of all, or indeed any, of the offences to which the warrant relates. In support of his submissions, counsel for the respondent opened various passages from the judgments in Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16 (Unreported, Supreme Court, 1st March, 2012). It was submitted that the Supreme Court’s earlier decision in Minister for Justice and Equality v. Olsson [2011] IESC 1, [2011] 1 IR 384 has been “refined” (to use counsel’s exact words) in Bailey. Counsel accepted that it was apparent from the judgment of the Chief Justice in Bailey that Olsson was still good law, but he contended that the Chief Justice, in quoting from the judgment of O’Donnell J. in Olsson, had sought to place particular emphasis on certain matters. It was submitted that the Chief Justice (in paragraph 71 of her judgment) had sought, inter alia, to emphasis the mandatory language used in s. 21A and also the conjunctive nature of the decision of which the Court must be satisfied, i.e., that the Court must be satisfied that there has been a decision both to charge the person with and also try him or her with the offence(s) in question in the issuing state (this Court’s emphasis). Further, the Chief Justice had indicated that the starting point in any consideration of the possible application of s. 21A was the warrant itself. In the Bailey case she found the first paragraph of the warrant to be “not helpful as it states the alternative purposes for which a warrant could be sought, but did not identify the purpose of the warrant”. It was conceded by counsel for the respondent that the same can not be said in the present case, in as much as the first paragraph of the warrant with which the Court is presently concerned indicates that surrender is sought “for the purposes of conducting a criminal prosecution”. The Chief Justice had then referred extensively to the evidence before the Court in Bailey concerning foreign law for the purpose of ascertaining the factual position with regard to what stage the proceedings in France had reached when the European arrest warrant was issued. Counsel for the respondent accepted that it was an important feature of that case that both sides were in agreement as to the position under French law, namely that if the appellant (Mr. Bailey) were handed over to France by the Irish authorities he would be at the investigation procedure stage of the case, and that while a decision had been made in France equivalent to a decision to charge the appellant that decision did not incorporate a decision to try him for the murder of Mme. Toscan du Plantier and indeed no further decision had been made. Nevertheless, counsel urges upon this Court that in so far as the Chief Justice’s judgment in Bailey addressed the s. 21A(1) requirement at the level of principle it has important implications for the present case. In particular, the Court was referred to paras. 95 to 98 of the Chief Justice’s judgment in Bailey, wherein she stated:-
96. O’Donnell J., in giving a judgment with which the other members of the Court agreed, analysed s. 21A. He stated at pp. 399-400:- “Thus, the concept of the ‘decision’ in s.21A should be understood in the light of the ‘intention’ referred to in s.10 of the Act of 2003 and the ‘purpose’ referred to in art. 1 of the Framework Decision. When s.21A speaks of ‘a decision’ it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the time the warrant was issued. The Act of 2003 does not require any particular formality as to the decision; in fact, s.21A focuses on (and requires proof of) the absence of one. The issuing state does not have to demonstrate a decision. A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges at the time the warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal prosecution. The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As Murray C.J., pointed out in Minister for Justice v. McArdle [2005] IESC 76, [2005] 4 IR 260, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person. It would be entirely within the Framework Decision and the Act of 2003 if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an ‘intention’ to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly the warrant would have been issued for the purposes of conducting a criminal prosecution. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present ‘decision’ to prosecute, and no present ‘intention’ to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s.21A of the Act of 2003, as amended that no decision had been made to charge or try the requested person.” [Emphasis added] 97. Consequently, applying that judgment, a court is to refuse to surrender a requested person when it is satisfied that no decision has been made to charge and try him. A warrant issued for the purposes of their investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. In such circumstances a court could be satisfied under s. 21A of the Act of 2003, as amended, that no decision had been made to charge and try the requested person. 98. Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384 was decided on its facts, and the facts in this case are different. That case turned on the evidence before the Court, and this case turns on the evidence before this Court. I would distinguish the determination in that case, because of the facts of this case. However, the analysis is helpful.” The applicant’s submissions Elaborating on this submission, it was urged by counsel for the applicant that her opponent was seeking “to turn the presumption on its head”, in suggesting that the Court could not be satisfied on the evidence before it that a decision had been taken (as of the time at which the European arrest warrant was issued) to both charge and try the respondent in respect of all five offences to which the warrant relates. It was submitted that the correct position in law is that the High Court is not required to engage in the first instance in an assessment of the available evidence for the purpose of satisfying itself in regard to such matters. Rather it may presume the existence of a decision to charge and try the respondent, and act upon that presumption, unless it has been demonstrated that cogent evidence exists tending to rebut that which is presumed. The respondent bears an evidential burden in regard to the adduction and/or identification to the Court of such evidence. It is only where the Court is satisfied that cogent evidence exists tending to rebut the presumption that it becomes necessary for the Court to seek to look behind that which is presumed. It was counsel for the applicant’s submission that the respondent had not discharged the evidential burden upon him and that the Court was obliged to act on foot of the s. 21A(2) presumption. Counsel for the applicant further submitted that, in any event, the material relied upon by the respondent, far from tending to rebut the s. 21A(2) presumption, in fact supports that which is presumed. In particular, the underlying domestic judicial decision, namely, the ruling of the 29th July, 2010 “imposing measure of constraint – arrest”, which clearly predates the issuance of the European arrest warrant, covers all five offences to which the European arrest warrant relates. It was urged that this important fact must be considered in conjunction with all of the additional information provided in this case, but in particular the information contained in the letter dated the 25th June, 2012 from the issuing judicial authority to the effect that:-
Please also be advised that pursuant to Paragraph 1 of Article 218 of the Code of Criminal Procedure of the Republic of Lithuania, the prosecutor being convinced that sufficient data was collected during the pre-trial investigation, which would substantiate the suspect's guilt in relation to commission of the criminal act, declared that the pre-trial investigation has been completed.” Counsel for the applicant made the further point that even if the Court was persuaded as to the existence of cogent evidence tending to rebut the s. 21A(2) presumption, that would not be the end of the matter. Even where the presumption stands rebutted, the Court would require to be “satisfied” on the basis of cogent evidence that, at the material time, a decision had not been made to charge the respondent with, and try him or her for, the offences in question in the issuing state, before it would be justified in refusing to surrender the respondent on s. 21A(1) grounds. The Court was referred to paragraph 36 of the judgment of O’Donnell J. in the case of Minister for Justice, Equality and Law Reform v. Olsson [2011] IESC 1, [2011] 1 IR 384 in support of this submission:-
Finally, it was submitted that the circumstances giving rise to the decision of the Supreme Court in Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16 (Unreported, Supreme Court, 1st March, 2012) not to surrender Mr. Ian Bailey to the Republic of France were quite unique, and readily distinguishable from the circumstances of the present case. The Court’s decision Having considered the totality of the evidence before the Court, and in particular the European arrest warrant itself, all of the additional information provided by the issuing judicial authority, and the various rulings and decisions of the Vilnius City Third District Court that were exhibited, I do not consider that respondent succeeded in demonstrating the existence of cogent evidence tending to rebut the s. 21A(2) presumption so to justify this Court in seeking to look behind that which is presumed. On the contrary, the Court agrees with counsel for the applicant that the available evidence when considered as a whole, each piece having been placed in its proper context, tends in fact to support that which is presumed. In so far as the case law is concerned, in the intervening period since the conclusion of the s. 16 hearing in the present case and during which my judgment has been reserved, I delivered a judgment in a case of Minister for Justice and Equality v. Connolly [2012] IEHC 575, (Unreported, High Court, Edwards J., 6th December, 2012) in which I said the following at paragraph 8.20:-
In conclusion on this issue, the Court is satisfied in all the circumstances that it is entitled to, and must, in accordance with s. 21A(2) of the Act of 2003, proceed upon the presumption that, as of the date of issuance of the European arrest warrant in this case, a decision had been taken both to charge the respondent with, and also to try him for, the five offences to which the European arrest warrant relates in the issuing state. In the circumstances the Court is not disposed to uphold the s. 21A(1) objection raised by the respondent. The s. 37 issue - the objection based upon prison conditions
This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” The principles contained in recitals 12 and 13 of the Framework Decision find reflection in s. 37 of the Act of 2003. In the particular circumstances of this case, the Court is concerned primarily with s. 37(1)(a) and s. 37(1)(b). These provisions are in the following terms:-
(a) his or her surrender would be incompatible with the State's obligations under— (i) the Convention, or (ii) the Protocols to the Convention, (b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38 (1)(b) applies)” The respondent’s case is that if surrendered in respect of the offences to which the European arrest warrant relates he would face a real risk of breach of his rights under Article 3 of the Convention, or alternatively his personal rights to bodily integrity and human dignity as guaranteed under Article 40.3 of the Constitution of Ireland. He contends that to surrender him in such circumstances would be incompatible with this State’s obligations to him under the Convention, and would constitute a contravention of his rights under the Constitution of Ireland, and his surrender must therefore be regarded as prohibited. The law I said in Mazurek that the following principles can be distilled from the authorities:-
- However, “by virtue of the absolute nature of the obligation imposed by Article 3 of the European Convention on Human Rights and Fundamental Freedoms, which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, the objectives of the system of surrender pursuant to the Council Framework Decision on the European Arrest Warrant cannot be invoked to defeat an established real risk of ill treatment contrary to aArticle 3” (per Fennelly J. in Rettinger); - The two foregoing principles are readily reconcilable and they do not imply that “there is any underlying conflict between the Convention and the Framework Decision” (per Fennelly J. in Rettinger); - The subject matter of the court’s enquiry “is the level of danger to which the person is exposed” (per Fennelly J. in Rettinger); - “[I]t is not necessary to prove that the person will probably suffer inhuman or degrading treatment. It is enough to establish that there is a ‘real risk’” (per Fennelly J. in Rettinger) “in a rigorous examination.” (per Denham J. in Rettinger). However, the mere possibility of ill treatment is not sufficient to establish an applicant’s case (per Denham J. in Rettinger); - A court should consider all the material before it, and if necessary material obtained of its own motion (per Denham J. in Rettinger); - Although a respondent bears no legal burden of proof as such a respondent nonetheless bears an evidential burden of adducing cogent “evidence capable of proving that there are substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to article 3 of the ECHR” (per Denham J. in Rettinger); - It is open to a requesting State to dispel any doubts by evidence. This does not mean that the burden has shifted. Thus, if there is information from an applicant as to conditions in the prisons of a requesting State with no replying information, a court may have sufficient evidence to find that there are substantial grounds for believing that if the applicant were returned to the requesting state he would be exposed to a real risk of being subjected to treatment contrary to article 3 of the ECHR. On the other hand, the requesting State may present evidence which would, or would not, dispel the view of the court (per Denham J. in Rettinger); - The court should examine the foreseeable consequences of sending a person to the requesting State (per Denham J. in Rettinger). In other words the Court must be forward looking in its approach; - The court may attach importance to reports of independent international human rights organisations, such as Amnesty International, and to governmental sources, such as the U.S. State Department. The letter of 16th May, 2012 It will be recalled that the letter from the issuing judicial authority to the applicant dated the 8th June, providing additional information in response to queries raised by the applicant in a letter of the 25th May, 2012, enclosed a document described as “commentaries of the Ministry of Justice of the Republic of Lithuania (copy of a letter No. (1.39.)7R-3701 dated 16 May 2012 together with their translation into the English language) pertaining to another case concerning a surrender pursuant to the European arrest warrant.” The other case in question is one in respect of which this Court also has seisen, and in which judgment on a surrender application stands reserved.
The letter of the 16th May, 2012 refers predominantly to Lukiškės Remand Prison, and seeks to engage with specific criticisms contained in the affidavit of an expert put forward by the respondent in the case in question relating to confinement conditions in that institution. In the present case, there is no evidence as to what prison the respondent may be detained at in the event of his surrender. His brief detention to date appears from his own affidavit to have been initially in what he describes as “a Police Holding Area” in Vilnius City, and subsequently at “Vilnius City Detention Centre” (which the Court believes to be the “Vilnius City Police Detention Centre” referred to in the 2010 CPT report exhibited with his affidavit). However, it is to be inferred from the issuing judicial authority’s reliance on the letter of the 16th May, 2012 that it is at least possible, and perhaps likely, that in the event of his surrender he would be detained at Lukiškės Remand Prison, which the Court understands from knowledge gleaned in other cases, including the case to which the letter of the 16th May, 2012 relates, to be located in Vilnius and to be one of a number of adult remand prisons (as distinct from police detention facilities) in the Republic of Lithuania. The letter of the 16th May, 2012 states:-
1) On the objects chosen for supervision by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter referred as CPT) during the visit to Lithuania in 2010 By commenting the opinion expressed by the Prof. Rod Morgan that the visit of 14-18 May 2010 to Lithuania concentrated almost exclusively on Juvenile Interrogation Isolator - Correctional Facility of Kaunas, hereby we note that in the CPT Report of 2010 visit it is directly stated that this object was chosen for the reason that during the visit to Lithuania in 2008 the confinement conditions in the said Facility were recognized as improper and it was sought to evaluate the progress achieved by responsible Lithuanian institutions implementing the recommendations outlined on the CPT Report on visit to Lithuania in 2008. It should be also noted that CPT Report on visit to Lithuania in 2008 in relation to other prison facilities checked (Lukiškės Remand Prison, 3rd Correction Facility of Pravieniskės) does not state that the confinement conditions in these facilities violate the human rights and degrade the dignity of the imprisoned persons; only some drawbacks were indicated that in most of the cases were removed by the competent Lithuanian institution prior to the submission of the Governmental Report on the Implementation of the Recommendations to CPT (in 2009). 2) The comparison of the number of persons kept in the Lukiškės Remand Prison since 2000 until 2012. When comparing the number of persons kept in the Lukiškės Remand Prison in 2000 with present situation it should be highlighted that the average number of the prisoners kept in this facility has reduced by 30 per cent. This reduction has been affected by the essential changes of Lithuanian criminal policy, since in 2003 new Code - Criminal Code and Criminal Procedure Code - had come into force. We would like to draw your attention that in 2000 1574 arrested persons and 253 sentenced persons in average were kept in Lukiškės Remand Prison. According to the data of 2012 1141 arrested person and 555 sentenced persons in average have been kept in this facility. Thus, when in 2003 the number of the persons imprisoned in this facility began significantly to reduce, the number of vacancies in the prison cells was also reduced, as a result of this the capita living space in prison cells had increased. It should be also noted that since 2008 the European Court of Human Rights has adopted not a single decision that would recognise that the confinement conditions in Lukiškės Remand Prison failed to meet the requirements set forth in the provisions of the Convention on Human Rights and Fundaments Freedoms. 3) On works done to improve the confinement conditions in Lukiškės Remand Prison We would like to draw your attention to the fact that despite the economic downturn and reduced budgetary allocations, the reconstruction works in Lukiškės Remand Prison were still continued in the period of 2008-2011 that allowed not only improving the prisoners' welfare, but also doing of the major repairs and full renewal of 67 per cent of all prison cells, where arrested persons are kept. The repair works of other premises and spaces used by the prisoners were also done, namely: the renewal of shower rooms and courtyards for walking; the instalment of 3 gyms with sports equipment; the instalment of the premises for demonstration of films and of the cabinet of chaplain, and etc. 4) on actions of Lithuanian Government when dealing with the issue of moving Lukiškės Remand Prison to new premises We would like, to inform you that the Imprisonment Facility Modernisation Strategy and Plan on it Implementing Measures approved by the Government of the Republic of Lithuania on 30 September 2009 (in the section that covers the issue of moving Lukiškės Remand Prison to new premises) foresee to transfer the sentenced persons kept in the said facility to a new Pravieniškės Prison, and the arrested persons - to a new Vilnius Remand Prison until 2014. The Ministry of Justice believes that a major progress has been achieved in the process of the implementation of these plans, as the Government of the Republic of Lithuania has already approved all documents related with a project of a new Pravieniškės Prison, thus a public tender shall be announced for the purpose of selecting an operator, who will have to carry out all necessary works until 2014 in order the sentenced persons, currently kept in Lukiškės Remand Prison, were transferred to Pravieniškės Prison. And the vacant cells will be occupied by the arrested persons kept in Lukiškės Remand Prison until 2017, when a new Vilnius Remand Prison is planned to be built. As a result of this, the requirements for proper confinement conditions will be fully met already in the period mentioned and there will be no problems related with overcrowded prison population. In summary it could be noted that the Ministry of Justice does not consider that the confinement conditions in Lithuanian prison facilities could be deemed as violating the human rights, as they fully meet minimal international standards for confinement conditions, despite some minor shortages. By the same token it can be noted that [named person] during his trial may be not necessarily kept in Lukiškės Remand Prison but in other facilities executing the coercive measure - arrest, for example, in a fully modernised Kaunas Remand Prison.” The respondent’s submissions Counsel for the respondent submitted that the evidence relied upon by his client—namely his relatively recent personal experience of detention in two different police detention centres/facilities in Vilnius, Lithuania as recounted in his affidavit, and the descriptions and criticisms of conditions of detention in remand prisons and detention centres in Lithuania as contained in the two reports exhibited with his affidavit, i.e., the 2010 CPT Report and the 2010 U.S. State Department Report—represent evidence of sufficient cogency to rebut the presumption in s. 4A of the Act of 2003, and to put this Court upon its enquiry concerning whether or not there are substantial grounds for believing that the respondent would face a real risk of being subjected to inhuman or degrading treatment, or alternatively breach of his rights to bodily integrity and to be treated with human dignity, in the event of him being surrendered.
Counsel for the respondent further submitted that when the Court engages in the rigorous examination of the evidence before it which it must engage in, it will inevitably be left with doubts, and that in the absence of any meaningful or substantive engagement by the issuing state with evidence as to the respondent’s own experience, and with the country of origin evidence upon which he also relies, those doubts will not have been dispelled. It was submitted that what the respondent has sworn to amounts to inhuman and degrading treatment. Regardless of how long or how short it continues for, the conditions of detention that he describes are simply not good enough and they amount to inhuman and degrading treatment. He submitted that in such circumstances the Court is obliged to refuse to surrender the respondent. Submissions on behalf of the applicant Counsel for the applicant makes the further point that the 2010 CPT report was concerned predominantly with short term police detention centres; with juvenile detention centres and with alleged secret detention centres, and not to adult remand prisons. Moreover, in relation to Lukiškės Remand Prison where he may possibly be detained, the letter of the 16th May, 2012 addresses recent criticisms of conditions in that institution. Decision on s. 37 issues However, the 2010 CPT report must be read in its context. It is the latest in a series of such reports commencing with a baseline report published in the year 2000, with follow up reports published in 2004, 2008 and most recently in 2010. (It is understood there was a further CPT visit to Lithuania in 2012, but the 2012 report has not yet been published. For consistency hereinafter these will referred to in abbreviated format as “the 2000 CPT report”, “the 2004 CPT report”, etc.) To properly understand the context of the 2010 CPT report it is necessary to refer to the earlier reports, all of which are to be found on the Council of Europe website using the url: http://www.cpt.coe.int/en/states/ltu.htm. Before doing so, however, the Court wishes to reiterate its agreement with views expressed by Latham L.J. in Miklis v. Lithuania, [2006] EWHC 1032 (QB) and with which I have previously expressed concurrence in other judgments. In that case Latham L.J., who was giving judgment on behalf of a Divisional High Court in the Queen’s Bench Division in England, said at para. 11:-
The 2004 follow up visit focused again on police establishments and prisons, as well as on psychiatric hospitals. There were four prisons visited, two of which had remand prisoners i.e., Kaunas Juvenile Remand Prison and Correction Home and Lukiškės Remand Prison. The 2008 follow up visit again focused on police establishments, prisons, and psychiatric hospitals, adding on this occasion residential care homes. Three prison establishments were visited, two of which had remand prisoners i.e., Kaunas Juvenile Remand Prison and Correction Home and Lukiškės Remand Prison. Most recently, the 2010 follow up visit focused on police establishments (9 of these were visited), one particular juvenile remand prison (i.e., Kaunas Juvenile Remand Prison and Correction Home) and “secret detention” (the alleged transportation and confinement of persons detained by the C.I.A. on Lithuanian territory). At the very outset of the 2000 CPT report, the relationship between police detention and prison remand in Lithuania is explained. (The explanation is reiterated in subsequent reports, most recently at para. 9 of the 2010 CPT report). It was stated in 2000 that:-
While in police custody, suspects are held in designated police detention centres, but can be removed during the day for questioning or to attend legal proceedings. Further, persons who are remanded in a prison establishment can be returned to police custody for questioning or further investigation. 10. The police are also responsible for the custody of persons in administrative detention (mostly fine defaulters) and of persons whose detention has been ordered by a judge to ensure that they fulfil their obligation to act as witnesses in court proceedings. Although a person may be required to serve up to three consecutive administrative detention sentences, it is unlikely that a period of more than three months would actually be spent in a police detention centre. It would appear that, when a longer period is involved, the persons concerned are offered some home leave after each three-month period. 11. In addition, a person can be detained by the police for identification for up to three hours (a period which can be extended to 48 hours under aliens law provisions), or for up to five hours while completing police proceedings concerning administrative offences. The police can also detain a person for sobering up or for the purpose of enforcing compulsory medical treatment or health care measures.” It is clear from the above that in the event of the respondent being surrendered, he will not be detained in a police detention centre, but rather will be detained in an adult remand prison, possibly (or perhaps even probably) Lukiškės Remand Prison. The available information indicates that he no longer qualifies to be detained in police detention. He has already been through police detention, he has been brought before a judge and he is now the subject of “arrest as a pre-trial supervision measure” as ordered by the Vilnius City Third District Court. He does not face administrative detention, nor is he required to be detained for “sobering up”. While it is theoretically possible for him to be returned to police detention for up to 15 days from any remand prison to which he is sent, there is nothing in the evidence to suggest that the authorities have a present intention to do this in his particular case. That said, it is noted that the respondent was summoned for questioning by the prosecutor on the 28th April, 2010, and failed to attend. The pre-trial supervision measure that has since been imposed is expressed as being necessary (inter alia) “to ensure the participation of the suspect in the proceedings”. In the circumstances the Court must acknowledge a possibility that if he is surrendered the public prosecutor may indeed request his temporary return to police detention for the purpose of questioning him. In any event, even if it does occur it will be of short and finite duration, limited to up to 15 days under Lithuanian law. As I stated in Minister for Justice and Equality v. Machaczka [2012] IEHC 434, (Unreported, High Court, Edwards J., 12th October, 2012) at para. 152:-
(emphasis added) While the conditions experienced by the respondent in police detention, and described in his affidavit, must have been very uncomfortable and indeed unpleasant for him, I am not convinced given the short duration of his stay in police detention that it amounted in his particular circumstances to inhuman or degrading treatment amounting to a breach of article 3 of the Convention, or that it breached his rights to bodily integrity and to be treated with human dignity under Article 40.3 of the Constitution. Similarly, the Court would not regard the theoretical possibility of a short term return to police detention (assuming conditions have not changed since 2010) as giving rise to substantial grounds for believing that the respondent would face a real risk of being subjected to inhuman or degrading treatment, alternatively breach of his rights to bodily integrity and to be treated with human dignity, without evidence of particular vulnerability in his case. Clearly, long term exposure to the conditions described could indeed breach a person’s rights, but one would not expect shorter term exposure to do so unless the person was specifically vulnerable in some respect. In arriving at the view just expressed the Court has taken due account of the following passages from paras. 23 and 24 of the 2010 CPT report:-
In this regard, the delegation was informed that, since the 2008 visit, the legislation had been amended so as to reduce the number of such returns. They could now take place only on the basis of a reasoned decision by the competent authority, and the remand prisoners concerned had the right to appeal against the decision. These new provisions had apparently resulted in a significant decrease in the number of remand prisoners returned to police establishments. 24. Unfortunately, the situation observed by the delegation was not so positive. It quickly became apparent that returning remand prisoners to police establishments was still a widespread practice. The majority of remand prisoners with whom the delegation spoke (including juveniles) had been returned to police establishments on a number of occasions. In this connection, a review of the files revealed that the decisions on which these returns were based often consisted solely of stereotypical phrases. Furthermore, although the maximum period for which a remand prisoner could be held in a police establishment was 15 days, the delegation met many remand prisoners (adults) who had in fact remained in police establishments for prolonged periods − several successive periods of 15 days, interrupted by a brief return (sometimes for only one or two days) to prison. The CPT must stress once again that, from the standpoint of the prevention of ill-treatment but also in view of the conditions prevailing in police detention centres (see paragraphs 25 to 27), it is far preferable that further questioning of persons already committed to a remand prison be undertaken by police officers in prison rather than on police premises. The return of remand prisoners to police establishments should be sought and authorised only very exceptionally, for specific reasons and for the shortest possible period of time. The CPT recommends that the Lithuanian authorities pursue their efforts to achieve this objective.”
It should be noted that the possibility to review laws and regulations regulating the temporary placement of the detained and sentenced persons in police detention facilities and the keeping of persons punished by administrative arrest in police detention facilities is currently discussed at the inter-institutional level (with the presence of the Ministry of Justice and the Ministry of the Interior, also the Police Department under the Ministry of the Interior). ….[D]ue consideration is currently being given to the issue of transferring the function of carrying out the provisional measure, i.e. detention, (which is currently entrusted to police detention facilities and which can be described as being uncharacteristic to police) over to the establishments subordinated to the Prisons Department under the Ministry of Justice of the Republic of Lithuania, and police establishments will only have premises for short-term (not exceeding 5 hours) and long-term (not exceeding 48 hours) keeping of persons.” The 2010 U.S. State Department Report also said the following, at pp. 2 – 3, with respect to prison and detention centres generally (including police detention centres and juvenile detention facilities):
According to Prison Department data, there were 9,139 prisoners at year's end, including 421 women and 158 juveniles. In its June 2009 report, the CPT delegation noted that it received several allegations by prisoners that staff of Lukiskes Prison mistreated them; the mistreatment consisted of punches, baton blows, and blows with books. In some cases the prison personnel inflicting the mistreatment were said to have been drunk. The delegation also heard inmates’ allegations that personal [sic] at the Pravieniskes Corrections Home No. 3 and the Kaunas Juvenile Remand Prison and Correction Home engaged in mistreatment (see section 6, children). Three correctional institutions remained overcrowded. For example, on December 31, a correctional facility in Siauliai held 676 inmates, despite a capacity of 435. The CPT report noted that renovated cells at the Lukiskes Prison were overcrowded, sometimes to ‘an outrageous degree,’ with six prisoners in a cell measuring eight square meters (approximately 86 square feet). Authorities did not respond to a 2008 judgment of the European Court on Human Rights (ECHR) that declared conditions at Lukiskes Remand Prison and the Rasu Prison to be violations of the prohibition of inhuman or degrading treatment as defined by European Convention on Human Rights. During the year the parliamentary ombudsman received 865 complaints from prisoners, compared with 267 in 2009. Most complaints involved the failure of administrators to give proper attention to prisoners’ grievances about such conditions as poor hygiene in prisons’ visiting rooms and other premises; the practice of turning off the electricity during half of the day to save money; mistreatment by prison personnel; restrictions on such prisoners’ rights as access to information; and inappropriate investigation of complaints. The ombudsman’s investigators found 330 of these complaints to be justified and 456 to be groundless, while the remainder were judged to be outside the ombudsman’s purview. During the year the ombudsman received, and dismissed as groundless, one allegation that working inmates received less than they were supposed to be paid.” The applicant’s case before the ECtHR alleged, inter alia, breach of his rights under article 3 of the European Convention on Human Rights and Fundamental Freedoms on the basis of alleged overcrowding and poor general conditions of detention. Although the Lithuanian government contested many of the factual allegations made by the applicant, the ECtHR found that the Lithuanian Government had in fact breached the applicant’s article 3 rights. The Court stated in its judgment at paras. 80-82:-
81. The applicant claimed that 2 to 8 persons had had to share a cell of about 9 m², all the detainees being confined to the cell for most of the day. The Government contended that there had been some 2.86 m² of floor space per person in that institution at the material time. However, the Court notes that the CPT found less available space during its visit in 2000 – 1.3 m² per person – which had further deteriorated by the time of their second visit to that prison in 2004 to 1.16 m² (paragraphs 64 and 68 above). Whilst each person apparently had a bunk bed to sleep on, the Court observes that the overcrowding was just as severe as that condemned in the aforementioned Kalashnikov v. Russia case (0.9 to 1.9 m²; ibid. § 97). Moreover, each cell at Lukiškės had had an open toilet without sufficient privacy. In addition, as a remand prisoner, the applicant had been obliged to stay in such cramped conditions some 23 hours a day, with no access to work, or educational or recreational facilities (cf. the aforementioned judgments of Karalevičius v. Lithuania, §§ 34-41, and Peers v. Greece judgment, §§ 75-76). 82. It is true that the applicant did not suffer any palpable trauma as a result of these conditions. Nevertheless, the Court finds that they failed to respect basic human dignity and must therefore have been prejudicial to his physical and mental state. Accordingly, it concludes that the severely overcrowded and unsanitary conditions of the applicant’s detention at the Lukiškės Remand Prison amounted to degrading treatment in breach of Article 3 of the Convention.”
In the CPT’s opinion, the cumulative effect of overcrowding and poor material conditions (to which must be added the lack of a programme of out-of cell activities, see paragraph 48) could be considered to be inhuman and degrading, especially when persons are being held under such conditions for prolonged periods (i.e. up to several months). The delegation was informed that there were plans to build a new remand prison near Vilnius and to close Lukiškės Remand Prison in 2011 (sentenced prisoners would be transferred to Pravieniškės-2 Correction Home No. 1). The CPT welcomes these plans and recommends that the Lithuanian authorities implement them as quickly as possible. In this regard, the CPT would like to receive a detailed schedule concerning the construction/commissioning of the new Remand Prison in Vilnius. 45. The CPT is aware that the construction of new buildings inevitably absorbs a significant amount of the financial resources available. However, care should be taken to ensure that this does not lead to unacceptable situations; the decision to deprive a person of his or her liberty entails a correlative duty upon the State to provide decent conditions of detention. Regardless of the timetable for the above-mentioned developments, the CPT recommends that the necessary steps be taken to ensure that all persons detained in Lukiškės Remand Prison, including remand prisoners, have acceptable conditions of detention as regards cell equipment and furnishings, as well as heating during cold weather. Furthermore, all prisoners should be provided with cleaning products (in sufficient quantity) for their cells. 46. In the two establishments mentioned, the delegation noted that, in spite of the legislation and regulations adopted following the CPT’s 2004 visit,many inmates did not have essential personal hygiene products (soap, toilet paper, sanitary towels, toothpaste, toothbrushes). The CPT reiterates its recommendation that steps be taken to ensure that all prisoners in Lithuania have adequate quantities of essential personal hygiene products.” (emphasis as in original). It is clear from the decision of the ECtHR in Savenkovas that during the periods when the applicant in that case was in Lukiškės Remand Prison/Lukiškės Prison, the conditions of detention there were capable of amounting to breach of a prisoner’s rights under article 3 of the Convention, and Mr. Savenkovas’s said rights were in fact breached. Moreover the situation had not materially improved by 2008 when the CPT concluded “the cumulative effect of overcrowding and poor material conditions (to which must be added the lack of a programme of out-of cell activities, see paragraph 48) could be considered to be inhuman and degrading, especially when persons are being held under such conditions for prolonged periods (i.e. up to several months).” If these stark findings had not been engaged with by the issuing state they might have provided sufficiently cogent evidence for this Court to treat the s. 4A presumption as having been rebutted, and have raised sufficient doubts in the Court’s mind to put it on enquiry as to whether or not substantial grounds exist for believing that if the respondent were returned to the requesting country he would be exposed to a real risk of being subjected to treatment contrary to article 3 of the Convention. However, the contents of the letter of the 16th May, 2012 furnished by the issuing judicial authority are of significance in this context. Among the points made is that in the period from 2000 to 2012 the average number of prisoners kept in Lukiškės Remand Prison has reduced by 30%, and that as a result of this the per capita living space in prison cells has increased. Moreover, since 2008 the ECtHR has made no further adverse findings against Lithuania in connection with conditions at Lukiškės Remand Prison. Furthermore, between 2008 and 2011 works continued, notwithstanding the budgetary downturn, to repair and improve the physical infrastructure at Lukiškės Remand Prison. Some 67% of all cells have been the subject of “full renewal” and repair works to other premises and spaces used by the prisoners were also carried out, namely: the renewal of shower rooms and courtyards for walking; the installation of three gyms with sports equipment; the provision of film showing facilities, and chaplains’ facilities. Finally, the point is made that there are plans in the medium term to close the existing Lukiškės Remand Prison premises and move remand prisoners to a new Vilnius Remand Prison by 2017. However, the plan is to move sentenced prisoners from Lukiškės earlier than that to a new Pravieniškės Prison due to open in 2014. It is asserted that once sentenced prisoners leave Lukiškės remand prisoners will occupy the cells vacated by them (pending the 2017 move to the new Vilnius Remand Prison) and “there will be no problems related with overcrowded prison population.” In the Court’s view the letter of the 16th May, 2012 does represent an engagement by the issuing state with the fact that there have been findings in the past that conditions of detention at Lukiškės Remand Prison were capable of breaching a prisoner’s article 3 rights, particularly in the matter of overcrowding, and in at least some cases actually did so. The letter of the 16th May, 2012 suggests an already somewhat improved, and continually improving situation. In particular, overcrowding has already been addressed to a degree and there is a definite plan, and timescale, to eliminate it altogether. Moreover, since 2008 there has been a program of repairs and upgrades to the existing infrastructure and facilities for prisoners so as improve conditions of detention. The evidence is one way in that regard, there is no evidence tending to contradict it. In the circumstances this Court finds that any doubts that it might have had arising solely out of the findings of the ECtHR in Savenkovas, and the 2008 CPT report, are dispelled. I must digress for a moment to say I am aware that in a recent judgment handed down by the former Recorder of Belfast in a case of Lithuania v. Campbell, (Unreported, High Court of Northern Ireland, Burgess J., 16th January, 2013) the Northern Ireland High Court refused to surrender a respondent (Campbell) on the basis that it was satisfied that if returned to Lithuania he would be exposed to a real risk that he would be subject, or would be likely to be subjected to, inhuman and degrading treatment by reason of prison conditions in Lithuania. However, the decision contains no novel proposition of law. It was decided by the application of well established and uncontroversial legal principles to the facts of the particular case as found by the Court on the basis of the evidence before it. It is important to appreciate that each case, including the present case, must be decided by application of the law to its own peculiar facts as established in evidence. It is clear from the judgment in Campbell, a copy of which I have procured, that the evidence leading to the factual findings in that case was very different to the evidence in the case before me. In particular, the Court in Campbell had evidence before it from a learned academic (coincidently the same expert as is referred to in the letter of the 16th May, 2012) who had personally participated in a number of CPT visits to Lithuania where conditions at Lukiškės Remand Prison were examined, and who had returned to Lithuania in a private capacity in May 2010 on which occasion he had taken the opportunity of re-visiting Lukiškės Remand Prison. He opined in evidence that there had been no material improvement in conditions since 2008. Unlike in Campbell there is no evidence before me concerning conditions in Lukiškės Remand Prison since 2008 other than the contents of the letter of 16th May, 2012. Moreover, it is to be observed that following the private visit of the academic in question to Lukiškės Remand Prison in May 2010 as described in the Campbell judgment, a further two years had elapsed before the issuing judicial authority wrote its letter of the 16th May, 2012 to the Irish Central Authority. Yet further time has elapsed since then. Returning to the issue under consideration, this Court has to be forward looking in its approach and therefore can only act on evidence, direct or inferential, concerning present day conditions in Lithuanian remand prisons. While evidence as to the situation in the past in Lukiškės Remand Prison might to some extent point to the likely present situation in Lithuanian remand prisons generally, the older the evidence the less reliable it is going to be as an indicator of the present situation. In that regard, such evidence (apart from the letter of the 16th May, 2012) as has been adduced before this Court, or that the Court has otherwise been able to obtain from reliable sources (e.g. the 2000, 2004 and 2008 CPT reports), cannot be regarded as recent. I consider that such evidence as I have before me, apart from the letter of the 16th May, 2012, is, at this stage, quite old and that it cannot be relied upon as an accurate indicator of current conditions in Lithuanian remand prisons, although as previously stated it might just have been enough to put this Court on its enquiry if the letter of the 16th May, 2012 was not in evidence. However, when the letter of the 16th May, 2012 is taken into account, the evidence as a whole lacks the degree of cogency necessary to justify this Court in regarding the presumption under s. 4A of the Act of 2003 as rebutted in the case of the respondent. In my view there is insufficient evidence as to current adverse prison conditions in Lithuania to rebut that which is presumed, i.e., that the issuing state will respect the respondent’s fundamental rights, including his rights under article 3 of the Convention, in the event that he is surrendered to the issuing state on foot of the European arrest warrant with which the Court is presently concerned. It follows that the Court is also not persuaded that to surrender the respondent would give rise to real risk that his rights to bodily integrity and/or to be treated with human dignity, guaranteed under Article 40.3 of the Constitution of Ireland, would be breached. In the circumstances I am not disposed to uphold the objection raised by the respondent under s. 37 of the Act of 2003. Conclusion |
