The High Court refused to order the surrender of two respondents to Italy after it learned they had already been tried there on offences covered by European Arrest Warrants seeking their prosecution. The court said that the trials undermined its ability to act on the warrants as issued.
The decision, delivered by Mr Justice Edwards on 30 November 2012, concerned separate proceedings against Giliola Gherine and Giuliano Gherine. The warrants had been issued by an Italian judicial authority in October 2008 and endorsed for execution in Ireland in February 2009. Both respondents were arrested in Clonmel, Co Tipperary, on 24 April 2012. Their surrender hearings were listed for 8 November.
The respondents objected to surrender, including on double-jeopardy grounds. They relied on an Italian judgment showing that both had been tried in absentia by the Court of Castrovillari, which delivered verdicts on 18 January 2011. The judgment recorded that Giliola Gherine was acquitted of one offence and convicted of another, receiving a sentence of 10 years and six months. Giuliano Gherine was acquitted of four offences and convicted of another, receiving a 13-year sentence.
On 7 November 2012, the day before the surrender hearings, an official from the Italian Central Authority told Ireland’s Central Authority by email that both respondents had been convicted in 2011, that the convictions had been upheld by the Court of Appeal of Catanzaro, and that proceedings were pending before the Court of Cassation in Rome.
Justice Edwards said the warrants sought surrender for prosecution, although the respondents had already been tried. Even for the offences resulting in convictions, the court could not surrender them to serve sentences under warrants seeking their prosecution. It therefore refused, in each case, to make an order under section 16(1) of the European Arrest Warrant Act 2003, as amended.
The court did not consider whether the warrants complied with other requirements. Its decision was limited to the effect of the prior trials on the warrants before it. Justice Edwards described the late communication of the trials as “disconcerting and very serious”, noting that the information arrived only the day before the hearings. He said the existing warrants should have been withdrawn and new warrants issued if Italy sought surrender to serve the sentences.
Under section 16(10), the court directed Ireland’s Central Authority to inform the issuing judicial authority and Eurojust of the reasons for refusing surrender, and to transmit the judgment to both.