Judgment: 2012-11-30 · Court archive

High Court refuses surrender in two Italian warrant cases after earlier trials emerged

The court said the respondents had already been tried in Italy, making the prosecution warrants before it unusable for surrender. It directed that its reasons be sent to Italian authorities and Eurojust.

High Court · [2012] IEHC 535

Who, what, where, when and why

Who
  • Giliola Gherine (Respondent)
  • Giuliano Gherine (Respondent)
  • Mr Justice Edwards
What

The court said the respondents had already been tried in Italy, making the prosecution warrants before it unusable for surrender. It directed that its reasons be sent to Italian authorities and Eurojust.

Where

Places mentioned in the report

  • Clonmel
  • Catanzaro
  • Castrovillari
When

Judgment:

Why

Reasons reported in the judgment

Justice Edwards said a person could not be surrendered to serve a sentence on a warrant seeking them for prosecution. Because the respondents had already been tried in Italy, the court said it could not surrender them for any offences in the warrants. It refused orders under section 16(1) of the European Arrest Warrant Act 2003, as amended. It did not consider whether the warrants met other legal requirements.

The High Court refused to order the surrender of two respondents to Italy under European arrest warrants after learning that they had already been tried on the offences covered by the warrants.

In a judgment delivered on 30 November 2012, Mr Justice Edwards said the warrants sought the respondents for prosecution. But a judgment from the Court of Castrovillari, delivered on 18 January 2011, recorded acquittals on some charges and convictions on others. The court also received an email from an Italian official stating that the convictions had been upheld by the Court of Appeal of Catanzaro and that proceedings were pending before Italy’s Court of Cassation.

The warrants related to alleged participation in a drug trafficking organisation. The allegations were not findings made in the Irish proceedings. The Italian judgment, exhibited by the respondents, stated that Giliola Gherine had been acquitted of one offence and convicted of another, receiving a sentence of 10 years and six months. Giuliano Gherine had been acquitted of four offences and convicted of another, receiving a 13-year sentence. The Irish judgment noted that one offence was common to both warrants.

The respondents had raised objections including double jeopardy. They were arrested in Clonmel on 24 April 2012 and later admitted to bail. Their surrender hearing took place on 8 November 2012.

Justice Edwards said a person could not be surrendered to serve a sentence on a warrant seeking them for prosecution. Because the respondents had already been tried in Italy, the court said it could not surrender them for any offences in the warrants. It refused orders under section 16(1) of the European Arrest Warrant Act 2003, as amended. It did not consider whether the warrants met other legal requirements.

The judge described the late disclosure of the Italian proceedings as serious and disconcerting. The Irish Central Authority received the information on 7 November 2012, the day before the surrender hearing, more than 22 months after the Italian verdict. The court said the existing warrants should have been withdrawn and that any attempt to secure the respondents to serve their sentences would require new warrants.

Under section 16(10), the court directed the Irish Central Authority to inform the issuing judicial authority and Eurojust of the reasons for refusing surrender, and to send them the judgment.

Read the original court judgment

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