The Supreme Court allowed Modestas Kizelavicius’s appeal against a High Court order for his surrender to Lithuania, ruling that the sentence he was required to serve could not be separated from an offence for which surrender was not permitted.
The appeal concerned a European arrest warrant seeking his return to serve a combined sentence of one year and three months. The High Court had ordered surrender in respect of three of the four offences on the warrant. It found that robbery, assault and use of a forged driving licence corresponded to offences under Irish law. A fourth offence, forgery committed in Dublin, did not correspond.
The Supreme Court said the combined sentence covered all four offences. It understood that a one-year sentence imposed in October 2003 related to the robbery and assault, while a seven-month sentence imposed in May 2005 related to two forgery offences. Those sentences were combined, with an unexplained four-month deduction, to produce the one-year-and-three-month term.
The Court said it could not identify what part of the combined term related to each offence. As a result, it could not determine a portion that applied only to the three corresponding offences. The judgment said the Court had no basis to apportion the sentence, and the sentence was not severable.
The Court applied the approach in Minister for Justice, Equality and Law Reform v Ferenca. That decision held that where a sentence is a single composite term covering offences for which surrender is permitted and an offence for which it is not, the sentence cannot be split to allow surrender for only some offences. The Supreme Court said section 17 of the European Arrest Warrant Act 2003, which allows surrender to be ordered for some offences and refused for others, applies where the requests and sentences are distinct and severable.
At the appeal hearing, Kizelavicius’s counsel said the separate sentences and the reduction to the final term were not explained in the warrant, and that the Minister had not sought further information under section 20. The judgment records that a separate argument under section 10 of the Act, concerning whether he had “fled”, was not pursued.
The Supreme Court refused the surrender request and allowed the appeal. Its decision addressed the composite sentence before it: it did not permit surrender for the three corresponding offences because the sentence also covered the non-corresponding offence and could not be divided.