The Supreme Court has allowed Tomas Vilkas’s appeal over the attempted surrender of him to Lithuania, ruling that Irish law permitted only one new surrender date after a failed transfer.
The judgment, delivered by Mr Justice William McKechnie on 5 December 2018, overturned the Court of Appeal’s decision that the High Court could set multiple new dates under section 16 of the European Arrest Warrant Act 2003. The Supreme Court held that the wording of the Act did not allow a second extension and could not be interpreted to match the EU Framework Decision on European arrest warrants.
Two Lithuanian warrants sought Mr Vilkas’s surrender in connection with convictions for six offences committed in Lithuania between September 2009 and October 2011. The source says he was sentenced to four years’ imprisonment in 2012. The High Court ordered his surrender in July 2015.
A first attempt to transfer him by commercial flight failed when he refused to board. The High Court then set 6 August 2015 as a new surrender date. A second attempt, also by plane, failed on 13 August. The Minister for Justice sought another date, proposing 15 September and a transfer by ferry and overland, but the High Court held it had no jurisdiction to hear the application and discharged him.
The Court of Appeal later referred questions to the Court of Justice of the European Union. The CJEU ruled that the Framework Decision can permit repeated new surrender dates when surrender is prevented by qualifying circumstances beyond the Member States’ control. It also said the authorities remain obliged to agree a new date after the EU time limits expire. The Court of Appeal applied that interpretation to Irish law and allowed the Minister’s appeal.
The Supreme Court found that the domestic statute had a different effect. Under its reading, once the first new date was set, the person had to be surrendered within the statutory period or discharged. The Court said extending the procedure again would contradict the Act’s clear wording, so the EU rule could not be applied through conforming interpretation.
The Court stated that Mr Vilkas had not been surrendered within the period following the first extension and therefore had to be discharged. It did not decide whether his second refusal to board amounted to force majeure; the Court said that question did not need to be considered. It also noted, as an aside, that the repeated refusal likely would not have met the EU force majeure test because it could have been foreseen.
The judgment raised a further unresolved issue: the EU court had said expiry of the time limits required release from custody but did not end the surrender process, while Irish law used “discharge,” understood in this context as ending the process. The Supreme Court said the provisions may require legislative reassessment. Its conclusion on this appeal was that the particular surrender process under the warrants had ended.