THE  HIGH  COURT
HC 292/04
Record Number: 2003 No. 27 EXT

Between:

The Attorney General
Applicant

And

Darius Musinskas
Respondent

Judgment of Mr Justice Michael Peart delivered the 17th day of August 2004:

The applicant seeks an order pursuant to the provisions of s. 29 of the Extradition Act, 1965, as amended, committing the respondent to prison to await an order of the Minister for his extradition back to Lithuania, where he is wanted in order to face trial in respect of certain offences as set forth in a Request from the Prosecutor General’s Office of the Republic of Lithuania dated 29th August 2003.

Briefly stated, the offences the subject of the Request are of forgery of a “bank payment order”, and obtaining money under false pretences. I can say at this stage that there is no contest on the respondent’s behalf in relation to correspondence or minimum gravity. Mr Robert Barron BL on behalf of the applicant has referred the court to what he submits are the offences in this jurisdiction to which the acts complained of as set forth in the Request would give rise, namely under s.25(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and s.6(1) of the same Act respectively. I am also satisfied for the purposes of s. 29(1) of the 1965 Act firstly that the person before the court on foot of the arrest is the person whose extradition is sought, and secondly that Part II of that Act applies to the requesting country, namely Lithuania, in respect of this Request. 
What is contended by Mr John Peart SC on behalf of the respondent is that the provisions of s.11 of the 1965 Act as amended apply in this case and that accordingly no order as sought should be made. That section provides as follows:

	11.—(1) Extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence.

	(2)  The same rule shall apply if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion or that that person’s position may be prejudiced for any of these reasons.”

It is subsection (2) above which it is submitted is applicable in this case.

In addition to that submission, Mr Peart has made submissions which seek to impugn the contents of the Request. I will return to that matter after I have dealt with the first submission that his extradition is sought in respect of an ordinary criminal offence only for the purpose of punishing him on account of his political opinion. Mr Peart submits that the evidence, which is uncontroverted by any replying affidavit, discloses substantial grounds for so contending. 

Before dealing with that submission in more detail, it is necessary to outline as far as is possible, the background to this Request for extradition.

If one refers to the Request dated 29th August 2003 of which a translation by a translator from the Lithuanian Prosecutor General’s Office has been provided, it appears that the allegation against the respondent is that on some date in March 1999, not ascertained, the respondent with the intention of obtaining property belonging to others used an “old bank form and forged a bank payment order by entering knowingly false data” and also forged the seal of a limited liability company. It is also alleged that on 10th April 1999 he together with another person, who was not identified during the investigation, presented the forged payment order document in a specified amount at an electric appliance shop, and by fraud obtained property to the value of that sum. While these offences are alleged to have been committed prior to the introduction of a new Criminal Code in Lithuania, the Request specifies the offences under the new Code introduced in October 2002 to which they correspond. 

The Request states that on 25th January 2000 the respondent was “submitted to court”.  It then states that “he was imposed a measure of suppression – written engagement not to leave”(sic). It is not absolutely clear to me what this means but I take it to mean that he was given some form of bail. The respondent’s affidavit to which I shall refer later on the other hand states that he has never been before any court. A copy of that Ruling is before this Court in the form of a translation. Mr Peart has suggested that this was some form of ex parte application and that the respondent was not there. But it is unclear from the Ruling itself whether that is so or not . I simply do not know that one way or the other. It appears from the ruling that the judge handling the matter was satisfied that there was “sufficient reason to submit the defendant to court”, that “the charges were made on the basis of evidences (sic) collected in the case”, and that “the indictment was drawn up” following the requirements of certain specified Articles of the Criminal Code. The indictment being “drawn up” on this occasion assumes some relevance when the Court comes to consider the evidence given at Cloverhill Court on the respondent’s bail application, and I shall return to that in due course. However, it appears that the judge then imposed what has been described as the “measure of suppression – written engagement not to leave”, and “submitted the defendant to the court” and fixed a date for hearing on the 10th February 2000. Obviously, this Court does not have knowledge of the precise criminal procedures which pertain in Lithuania, but what appears in this Ruling of the 25th January 2000 could possibly be the equivalent of an information being sworn in the District Court and on foot of which a warrant of arrest is issued. That would explain the fact that the respondent says that he was never before any court.

The Request for extradition then states that when he did not appear in court on the 17th February 2000 (presumably the case had been adjourned from the 10th February 2000), the judge “changed an imposed measure of suppression – written engagement not to leave – with house arrest and declared him wanted.” Again it is difficult to know precisely what this means, but it certainly seems to be the case that following his non-appearance in court his bail status was altered to one of house arrest.

 The Warrant of Arrest dated 25th April 2003 throws some further light on this particular aspect of the case. That document states:

	“On 17 February 2000 under Ruling of District Court of Mazeikiai Region, when the defendant didn’t appear at the hearing and couldn’t be brought by police officers, he was declared wanted and previously imposed measure of suppression upon him was changed with house arrest.(sic)”

Whether this means that a bench warrant was issued, or simply that his status as being a person to whom bail had been granted was changed to a person who was thereafter simply under some form of house arrest, is not entirely clear but it would seem that the police did not know where he was since they had been unable to bring him to court, and in those circumstances putting him under some form of house arrest seems to lack any practical meaning. However, no doubt something has been lost in translation.

A copy of the Ruling of the 17th February 2000 itself, in the form of a translation thereof, is also before the Court. That document discloses as far as I can make out that on that date the Court noted that the respondent was not brought to court as he had left his place of residence, and that as a result he was declared wanted, a “measure of suppression – written engagement not to leave from his home(sic)” was imposed upon him, and the investigation of the complaints against him was suspended until he is found  “as investigation of the case in a trial court is conducted in presence of the defendant, whose appearing in the court is necessary.”

The Request for Extradition states that some three years later on the 25th April 2003 under a judge’s ruling “an imposed measure of suppression upon him – house arrest – was changed with arrest (sic)” Again I am not clear what this means. The Request then recites that on the 16th July 2003 information was submitted by the Lithuanian Police that the respondent had an address in Ireland, and his extradition is requested. The Request then gives the following guarantee:

“The Prosecutor General’s Office guarantees that Darius Musinskas – the person to be extradited – shall not be prosecuted or punished for committing a crime other than that indicated above to be the basis for extradition, nor shall be extradited to the third country without your consent. The period of limitation of handing down the sentence of conviction in respect of the said person has not expired.”(sic)

The Arrest Warrant to which I have referred previously states, in what must be regarded as an insufficient translation, the following:

“The defendant D. Musinskas has validated a written engagement not to leave from the place of residence without permission of the Court, has departed from Lithuania and went into hiding from the Court. This is the sufficient ground for supposition, that if not arrested he will continue to hide from the Court. On this basis a previously imposed measure of suppression is changed with pre-trial detention (arrest), as no milder measure of suppression would guarantee his participation in the procedure and undisturbed judicial investigation of the case (Paragraph 1 and sections 1 and 4 Paragraph 3 of Article 104 of the Code of  Criminal Procedure of the Republic of Lithuania).

Referring to what was stated and following Articles 95, 98, 101, 104, 276 and 277 of the Code of Criminal Procedure of the Republic of Lithuania the Court ruled on: changing a previously imposed measure of suppression – arrest – upon the defendant Darius Musinskas……………with pre-trial detention (arrest); assigning conduct of arrest to Police Commissariat of Mazeikiai.”

The High Court issued a warrant on the 7th November 2003 for the arrest of the respondent in this jurisdiction, the Minister for Justice, Equality and Law Reform having issued a Certificate on the 5th November 2003 that a request for the extradition of the respondent had been received from Lithuania on the 17th October 2003.

The respondent was arrested on foot of that warrant by Sergeant Martin O’Neill of the Garda Siochana Headquarters Crime Branch on the 11th November 2003 at an address in Dundalk, Co. Louth. Following that arrest the respondent was brought before the High Court on the same date, where evidence was given regarding the formalities of the arrest, such as identification and the service of copy documents and so on, none of which is in dispute in this application. That evidence was then reduced to writing in the form of an affidavit sworn by the said Sergeant Martin O’Neill on the 28th November 2003. Following that appearance before the High Court, the respondent was remanded to another date and in custody. A Bail application was made subsequently. I am informed, and the respondent was released on bail pending the determination of this application.

The respondent has sworn an affidavit in this case, and it is on foot of this affidavit that the submission is made that s. 11 of the 1965 Act applies. In this affidavit he states that in January 2000 he moved to London for business reasons, where he remained until January 2001 when he returned to Lithuania to his family. He says that he stayed there living at his own home between January 2001 and June 2002, and that during that time no allegations of a criminal nature were made against him or brought to his attention. He also says that while he was there he involved himself in political matters, and he says that this “culminated in distinct and serious threats made to me personally, which included threats and the burning of my hall door as an indication of what was to come.” He goes on to say that at that time his wife was expecting their second child and he believed it prudent to move while they still could. He says that when they left he “was in distinct fear for the family’s safety.” They came to Ireland where their second child was born.

In paragraph 4 of his said affidavit he states that he knew nothing about the allegations made against him until he was arrested at his home, and that he had no real understanding of what the Garda was saying to him at the time, except that he was showing him some document and taking him away from his home. He says that he has been shown a translation of Sergeant O’Neill’s affidavit and that the contents thereof surprise him, and that this was the first time that he really understood what was happening. He then goes on to deal with the Court document dated 25th January 2000 to which I have referred earlier. This is the document which states that an indictment was drawn up, and that the “defendant is to be submitted to the  court” and which fixed the hearing date for the 10th February 2000. He describes this as having been an ex parte application, and that he left Lithuania on the 10th January 2000 and that no summons or any other such document was ever served on him, and he notes from the documentation that he has seen that there is no summons as such with the documentation.

The Respondent then states in paragraph 6 of his affidavit that while he was at Cloverhill Court on the 24th November 2003 in relation to his application for bail following his arrest, he listened to the evidence of Sergeant O’Neill with the assistance of an interpreter. He says that when Sgt. O’Neill gave evidence in relation to the bail application he stated that he had been informed by the Lithuanian police that an Indictment had issued on the 9th December 1999 and that the respondent had been brought to a police station on the 2nd February 2000 and had been indicted with the offences charged. This evidence gives a totally different account of events than appears from the documents to which I have already referred, which suggested that an indictment had been drawn up by the Court on the 25th January 2000, and that the respondent was not present in the Court at that time. In his affidavit the respondent refers to the fact that among the documents furnished with the Request for extradition there is no copy of any such Indictment, and he avers that he was never brought to any police station on the 2nd February 2000, and that the alleged offences were never put to him, either on the 2nd February 2000 or on any other date. He also avers that on his bail application, his Counsel cross-examined Sgt. O’Neill about these matters, and he states that the latter “adamantly confirmed that he had received clear instructions to this effect until my Counsel showed him the Order of the Court of 25th January 2000 indicating the ex parte application, and the order that a summons might issue.” He goes on to state as follows:

“I say that he was at a complete loss for words to try to explain the total contradiction that his instructions and the documentation posed. I say that I am not guilty of any offence. I was not arrested or brought to any police station. I was not accused of any crime, and I say that no documentation was served on me, this deponent, or any member of my family subsequent to my departure for London on 10th January 2000. I say I am unaware of the real reason for this application; that it has something to do with the political matters in which I was involved. I say and believe that the documents and the evidence are totally contradictory and make no sense.”

He also avers that neither he nor his Counsel can make sense of the documentation which has been furnished. He also states that no proof of any kind has been tendered which might enable this Court to consider whether a prima facie case is made out, except bald accusations. Just to deal with that last matter now, the position as I understand it is that this Court has no function in deciding on the strength or otherwise of the case which the respondent would face if returned to the requesting country. This Court is concerned only as to whether the person before the Court is the person whose extradition is sought, and whether the alleged act(s) giving rise to the offence in the requesting state, would if done in this State amount to an offence. Then provided that there is no other reason, as provided in the legislation, as to why the respondent ought not to be extradited, the Court must make the order sought. This Court has no function in adjudicating in any way upon the merits of the prosecution’s case.

I have been informed that following the service of the respondent’s replying affidavit, the applicant sought adjournments from time to time in order to take instructions for the purpose of filing a further affidavit in order to deal with what was stated by the respondent in his affidavit. I am told that there were about 14 such adjournments. However, it now appears, as I have been informed by Mr Barron, that no further affidavit is forthcoming and therefore there is no affidavit before the Court to contradict or dispute in any way what has been stated by the respondent.

It must be noted that the only reference to these charges having any connection to political activity on the part of the respondent is the short sentence set forth above where the respondent states “that it has something to do with the political matters in which I was involved.” and to what he stated in paragraph 3 of his affidavit about having the door of his house burnt and having had threats made against him because he had involved himself in “political matters”. There is no detail of any kind given as to the nature of his political activity or involvement, or why it might have given rise to this suggested adverse attention or the bringing of these charges against him, or as to why or how he would be prejudiced on account of his political opinion. This is surprising in view of the significance of such activity or opinion in relation to his submission that an order for his extradition should not be made, given the provisions of section 11(2) of the 1965 Act.

It is provided in s.11 that extradition shall not be granted where there are substantial grounds for believing, inter alia, that a request for extradition has been made for the purpose of prosecuting or punishing a person on account of his political opinion, or if that person’s position may be prejudiced on account of his political opinion. The question in the present case is how can this Court be satisfied that his position may be prejudiced on account of his political opinion in the face of such a paucity of information provided by the respondent. There is simply an assertion that he is unaware of the real reason for his extradition being sought and that “it has something to do with the political matters in which he was involved.” Within that affidavit alone I cannot be satisfied that there are substantial grounds for believing that the request has been made for a reason related to his political opinions. There would have to be some more detailed information stated in an affidavit than has been stated by this respondent. 

However, the important feature of this application in my view is the fact that the Lithuanian authorities have clearly taken a decision for whatever reason not to contradict what the respondent has stated in his affidavit. It would surely have been a very simple matter for them to deny that he had any political involvement and to deny that his extradition is being sought for any reason related to his alleged political activity or that his position might be in any way prejudiced on that account. That would have put the onus back onto the respondent to set out in some more detail exactly why he contends as he does. This absence of any replying affidavit in spite of ample opportunity being afforded to the applicant so to do gives me sufficient cause for concern that I regard it in itself as a substantial ground for believing or inferring that his “position may be prejudiced” as provided in s. 11(2) of the 1965 Act. Since I am of that view, I am mandated by s. 11(1) of that Act not to grant an order for extradition, and I therefore refuse to do so and order the release of the respondent.

I should add that if I were not in a position to be so satisfied, I would have felt obliged to refuse an order in this case because, also, of the unsatisfactory nature of the information furnished with the request for extradition. The translation of the documents is not sufficiently clear to understand precisely the procedures and the sequence of events prior to and subsequent to the court application of 25th January 2000. Again in the absence of any replying affidavit to the respondent’s affidavit, this Court is left in the position of not understanding the procedures in Lithuania sufficiently, and the contradiction pointed out by the respondent in paragraph 6 of his affidavit, between what Sergeant O’Neill was informed by the Lithuanian police, and what appears to be set forth in the documentation accompanying the request, remains unexplained. I would have thought that if there was a suitable explanation, the opportunity to provide a replying affidavit would have been availed of without any difficulty. It is the failure to take that opportunity which gives me cause for some concern that all is not what it ought to be as far as this request for extradition is concerned. The Court is left with a sufficient doubt so as to refuse to make the order sought on the basis that it is not satisfied in relation to s. 29(1)(d) of the 1965 Act.