The High Court has ordered the surrender of Franclim Jose Soares Vitor to Portugal to serve a custodial sentence, rejecting his objection that his absence from proceedings there breached his defence rights.
In a judgment delivered on 7 November 2024, Mr Justice Patrick McGrath ruled that the objection under section 45 of the European Arrest Warrant Act 2003 did not prevent surrender. He made the order under section 16(2) of the Act.
Portugal sought Mr Vitor’s surrender under a European Arrest Warrant issued on 13 February 2023. The warrant sought his return to serve a sentence imposed for theft in a public place and aggravated theft or attempted aggravated theft. The High Court found the offences corresponded to theft and robbery under Irish law and that the minimum-gravity requirement was met. It also found that the warrant had been issued by a judicial authority and contained sufficient particulars.
Mr Vitor’s objection concerned his absence from the trial that resulted in the sentence. He argued that a document he signed in Portugal, called a Declaration of Identity and Residence, did not clearly tell him that a decision could be made in his absence. He also argued that an appeal by his co-accused, which reduced his sentence as well as the co-accused’s, was a further decision-making stage he had not been notified about.
The Portuguese authorities told the Irish court that Mr Vitor and his lawyer did not participate in the co-accused’s appeal, which was decided on the papers without a hearing. They said the sentence reduction followed automatically under Portuguese law and involved no new evidence. The authorities also said Mr Vitor had been told that proceedings could take place in his absence. The High Court noted he had left Portugal while aware of an ongoing criminal investigation and had not told authorities of his change of address, despite an obligation to do so.
The court found that Mr Vitor had been represented by court-appointed counsel at the original hearing and judgment. After the first-instance decision was served on him in Ireland, he was informed of his right to appeal and exercised it with a lawyer’s assistance. The Court of Appeal in Évora rejected his grounds, including that the hearing was a nullity because he was absent.
Justice McGrath concluded that Mr Vitor’s defence rights had been protected, rejected the section 45 objection and ordered surrender. The judgment does not report that surrender had already taken place.