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The European arrest warrant shall be issued not later than within 5 days after receiving all information necessary for preparing the European arrest warrant. STA |
14. STA |
The European arrest warrant shall be prepared in accordance with the form contained in the Annex 1 of these Rules. . STA |
16. . STA |
if the European arrest warrant is issued by the Ministry of Justice of the Republic of Lithuania, then it shall be undersigned by the Minister of Justice of the Republic of Lithuania or his delegated persons. STA |
Contrary to the Administrative Courts understanding, it is now clear (from the Ministry of Justices letter dated 5 November 2012) that, while the request made to the Ministry of Justice in respect of Bucnys, came under rule 9 from the Vilnius City 1st District Court after it had on 20 February 2010 quashed Bucnyss cond... |
The Vice-Minister of Justice of Lithuania has explained in correspondence put before the Supreme Court that the prison department would only act after being provided by the Vilnius City 1st District Court with relevant documentation regarding the conviction and sentence. Ratio |
It does not follow that the District Court made any sort of judicial decision at this point and the evidence does not show that it did. Ratio |
Both in law and in practice, the responsibility for requesting the Ministry of Justice to issue a European arrest warrant rested on the prison authorities, upon which rule 8 conferred it. Ratio |
In these circumstances, I cannot regard the European arrest warrant issued in respect of Sakalis as having been either issued by a judicial authority or as being the result of a judicial decision. Ratio |
The Prison Department is an executive agency charged, as rule 8 states, with the execution of the sentence. Ratio |
It is not a judicial body considering and ruling upon the question whether the person wanted has absconded. Ratio |
The language of rules 8 and 12, read together, makes it possible (though surprising) that the Prison Department is required before submitting a request to issue a European arrest warrant to the Ministry to take into consideration the severity and type of the offence committed and the convicted persons personality. Rati... |
In other words, it may have a discretion. Ratio |
If so, the evident oddity in the context of a European arrest warrant of such a discretion being entrusted to a prison department merely underlines the fact that it cannot be regarded as a judicial authority. Ratio |
The Ministry of Justice after receiving the Prison Department request is under rule 12 required not only to consider for itself whether the formal pre-conditions listed in rule 4 are satisfied but (it appears) also to take into consideration the severity and type of the offence and the . Ratio |
convicted persons personality. Ratio |
Assuming again that this connotes an element of discretion, even in the case of a conviction, as to whether it issues a warrant, the mere fact that the Ministry of Justice is given a discretion does not make it a judicial body. Ratio |
If anything, it points once again towards a need for a judicial decision by a body or bodies which could be regarded as judicial. Ratio |
I would therefore allow the appeal by Sakalis and set aside the Part 1 warrant issued in respect of him. Ratio |
The position in relation to Bucnys is different. Ratio |
Under the combination of rules 9 and 12, the Vilnius City 1st District Court not only took the decision to quash his conditional release on 12 September 2008, it also forwarded copies of its ruling to the Minister with a draft European arrest warrant, and it must be taken to have done this after taking into account the... |
convicted persons personality. Ratio |
The Ministry of Justices only role was to repeat the same exercise. Ratio |
Its review could not worsen the position of the convicted person. Ratio |
At best, if the Ministry took a different view on the question whether the criteria were met, its review might lead to a decision not to issue a European arrest warrant which the Vilnius court had adjudged to be appropriate. Ratio |
Essentially, therefore, the European arrest warrant issued in respect of Bucnys emanated from the court responsible for him having to serve a further period in prison. Ratio |
That was a judicial decision by a judicial authority. Ratio |
The Ministry by issuing the warrant effectively endorsed that decision. Ratio |
Under article 7 of the Framework Decision, it would have been permissible for Lithuania to designate the Vilnius City 1st District Court as the relevant judicial authority and to restrict the Ministrys role to its capacity of central authority. Ratio |
If a court were to out-source its registry and the registry were to be designated as the judicial authority responsible for issuing warrants or other orders to give effect to the courts orders, it should I think be possible to regard the registry as a judicial authority issuing a judicial decision, even though - or bec... |
In the present case, it appears that the Ministry of Justice had some discretion, but only in the sense of a one-way discretion to check that, in its view also, a European arrest warrant was appropriate. Ratio |
This requirement for two concurrent decisions in favour of such a warrant could only operate to the benefit of the person whose surrender was proposed by the court responsible for the conviction or sentence. Ratio |
In these circumstances, I consider that European law would accept that the spirit of the Framework Decision was met in the case of European arrest conviction warrants issued by the Ministry of Justice of Lithuania to give effect to a corresponding request by the Court responsible for the sentence, and would treat the M... |
I have been addressing the present situation of a Ministry of Justice acting at the request of the responsible court. Ratio |
It is possible that the spirit of the Framework Decision may also be satisfied in some other situations, for example when a Ministry of Justice acts on the basis of a request made by a public prosecutor, held by this court in Assange to be capable of being regarded as a judicial authority. Ratio |
To take a specific instance, in Germany the Ministry of Justice is designated as the relevant judicial authority for the purpose of issuing conviction (and indeed also accusation) European arrest warrants, but has in some way transferred or delegated its role to the public prosecutor at the relevant regional court. Rat... |
As we have no details of the arrangements or how they operate, I can express no conclusion either way, but it may prove appropriate to treat the Federal Ministry of Justice as the issuing judicial authority, when a German public prosecutors decision that a conviction European arrest warrant should be issued is simply e... |
The Estonian position Ratio |
Turning to the position of the European arrest warrant issued by the Head of the International Cooperation Unit of the Estonian Ministry of Justice, it is now known that the Viru County Court on 10 February 2011, on learning that Lavrov was living in the United Kingdom, sent a request to the Ministry of Justice to issu... |
There is also substantial further information about the Estonian legal position in the form of answers dated 28 February 2013 to a questionnaire submitted by the Crown Prosecution Service. Ratio |
The legal framework is contained in article 507 of the Code of Criminal Procedure of Estonia which reads: Submission of European arrest warrant (1) In pre-trial proceedings, the Prosecutor's Office and, in court proceedings, the court which conducts proceedings regarding a criminal offence which is the basis for a Euro... |
(2) The Ministry of Justice is competent to submit a European arrest warrant for the execution of a court judgment which has entered into force. STA |
(21) In pre-trial proceedings, a preliminary investigation judge may, at the request of the Prosecutor's Office, apply arrest for surrender before preparation of a European arrest warrant. STA |
(22) If surrender of a person is requested in court proceedings, the arrest for surrender of the person shall be applied by the court which conducts proceedings regarding the criminal offence. STA |
(3) A European arrest warrant shall be prepared in Estonian and it shall be translated into the language determined by the requesting state by the Ministry of Justice. STA |
(4) A European arrest warrant shall be communicated to a requesting state through the Ministry of Justice. STA |
(5) In cases of urgency, a request for application of arrest for surrender with regard to a person to be surrendered may be submitted to a member state of the European Union through the International Criminal Police Organisation (Interpol) or the central authority responsible for the national section of the Schengen In... |
In the case of Lavrov, articles 507(2) and 507(22) both applied. Ratio |
The Deputy Secretary-General of the Ministry of Justice explained by letter dated 28 February 2013: The court ruling declaring the person a wanted and applying arrest- on-sight towards him or her is the prerequisite for later issuance of a European arrest warrant. Ratio |
No European arrest warrant can be issued without a court first declaring the person a wanted and applying arrest-on-sight (domestic arrest warrant) towards him or her. Ratio |
Pursuant to section 507 (21) and (22) of the Estonian Code of Criminal Procedure, applying arrest for surrender is a prerequisite for issuing an European arrest warrant. Ratio |
If no arrest pending surrender has been applied towards the person, then an European arrest warrant cannot be issued. Ratio |
This letter gives the following further information: in this current case a court requested the Ministry of Justice to issue a European arrest warrant on the basis of court decisions entered into force. Ratio |
The issuance of an European arrest warrant in conviction cases by the Estonian Ministry of Justice only takes place upon request by the court who made the decision in the specific case or a court that has the competence to issue the arrest warrant and to declare the person a fugitive in cases where the person was convi... |
Thus, this is the court that sends to the Ministry of Justice the judgment or ruling with request to issue the European arrest warrant. Ratio |
The court's decision has to be either a final and enforceable judgment satisfying the requirements of the framework decision or a domestic arrest warrant stating that the detention conditions are met. . Ratio |
The only restrictions that the Ministry of Justice is obliged to follow upon issuing a European arrest warrant on a court's request, are the general restrictions on issuing of European arrest warrants from [the] Framework Decision ie the requirement that the punishment of imprisonment applicable to a crime for which th... |
If the materials sent to the Ministry of Justice for issuance of an European arrest warrant regarding a person towards whom the court has applied arrest for surrender, indicate that the actual punishment imposed on the person or actually servable part thereof is less than four months, then the Ministry of Justice may i... |
In other cases the court's request to issue a specific EAW is compulsory for the Ministry of Justice. Ratio |
The same letter also addresses the possibility that a European arrest warrant might be issued under executive influence: The Judicial Co-operation Unit is one of the structural units of the Ministry of Justice, but it is independent in its decisions and bases its actions solely on the law and the international instrume... |
This independence is also expressed in the fact that all documents prepared by the unit, ie both European arrest warrants and MLA [mutual legal assistance] requests for judicial assistance are undersigned by the head of unit or the advisor who prepared the letter. Ratio |
All materials, ie requests from courts, materials of the prosecutor's office, and also judicial co-operation materials and requests for legal assistance received from abroad are forwarded from the Ministry's office directly to the Judicial Co-operation Unit without passing through the Minister, the Secretary General or... |
Therefore the executive has no information about whether, how much or which judicial co-operation materials are being preceded by the unit at any time. Ratio |
There has been no intervention by the executive in the unit's work and there cannot be any intervention of that kind because communication in the field of international law is very strictly regulated by domestic legislation and by various other legal acts, so it is unthinkable that the Minister or the Secretary General... |
International judicial co-operation is very strictly and precisely regulated by various international conventions and treaties which prescribe also the role and competence of Ministries of Justice as central authorities. Ratio |
It is unthinkable that the Ministry of Justice could exceed its limits of competence by way of its executive ordering a request for legal assistance for which the Ministry of Justice has competence. Ratio |
It is also unthinkable that the executive of the Ministry of Justice could order that a request for legal assistance be not issued or not forwarded. Ratio |
As described above, in daily work the management has no information at all about the requests that are preceded [sic] by the Unit at any given time. Ratio |
Furthermore, the Public Service Act of the Republic of Estonia prohibits (article 62) unlawful orders from the executive and gives the ways how to react in such situations. Ratio |
On the basis of this detailed description of the legal, procedural and practical position, it is clear that the real decision is taken by the court responsible for the conviction and sentence, and the Judicial Cooperation Unit of the Ministry of Justices only lawful role is to check that the formal conditions for issue... |
On the basis, by parallel reasoning to that which I have indicated in relation to Bucnys, I consider that the Ministry can be regarded as a judicial authority issuing a warrant containing a judicial decision, albeit one taken in reality by the responsible court, here the Viru County Court. Ratio |
However, Mr Jones points to other information in the form of the Council Evaluation Report on Estonia 5301/07 dated 20 February 2007, which states: 3.1. ARG |
THE DECISION TO ISSUE The Estonian authorities do not have a formal practice guide concerning the instigation of European arrest warrant proceedings or the subsequent steps to be taken. ARG |
Standardised European arrest warrant practices have been outlined to all European arrest warrant stakeholders during training provision supplied by the CA together with professional trainers from the Estonian Law Centre. ARG |
It states that, in the case of accusation warrants, the following factors will be taken into consideration by a review made before any decision to issue a European arrest warrant: severity of the offence, degree of participation, extent of the injury/damage. ARG |
It continues: In cases concerning the enforcement of a sentence, officials within the CA will apply similar merit tests to assess the appropriateness of the application. ARG |
They will then obtain, directly from the criminal court concerned, a copy of the order to be enforced and proceed to draft an European arrest warrant. ARG |
In real terms therefore a pragmatic de minimis test is brought to bear, balancing the seriousness of the criminality against the merits (costs or otherwise) of issuing an European arrest warrant. ARG |
Estonia reported that their outgoing European arrest warrants were all of a benchmarked standard. ARG |
This second-hand account of the Estonian system does not bear much relationship with that given by the Ministry of Justice itself in 2012 and 2013. Ratio |
It makes no reference to the provisions of article 507 of the Code of Criminal Procedure, or to any role of the court responsible for the conviction, still less to any duty on the part of the Ministry to issue a European arrest warrant, once satisfied that the formal conditions are met. Ratio |
Although the report points out earlier that the Ministry of Justice has been designated both as the competent judicial authority and as the central authority in relation to the issue of European arrest conviction warrants, it speaks at this point only of the CA. Ratio |
The report was based on a visit by experts to Estonia in September 2006, little over two years after Estonia joined the European Union on 1 May 2004. Ratio |
The European arrest warrant system may not have been well digested by that date. Ratio |
The Code of Criminal Procedure may have been amended since 2006 it seems clear that article 507(21) 2 and (2) must have been added at some point. Ratio |
However, even if, contrary to the Ministrys emphatic explanation, the Judicial Cooperation Unit of the Ministry does enjoy some form of proportionality discretion, when it comes to the exercise of a European arrest warrant requested by a court responsible for a sentence, this is again a factor which can only weigh in f... |
It does not therefore mean, in my opinion, that the Ministry in issuing the European arrest warrant in respect of Lavrov should not be regarded as a judicial authority communicating a judicial decision made by the Viru County Court. Ratio |
Conclusions RPC |
The conclusions of principle that I reach are: - For the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003: i) A European arrest warrant issued by a Ministry in respect of a convicted person with a view to his or her arrest and extradition can be regarded as issued by a judicial... |
ii) If this condition is satisfied, the existence of a discretion on the part of the Ministry not to issue a European arrest warrant which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this. Ratio |
iii) Subject only to the second point in para 47 above (so far as left open), a Ministry which has power to issue and issues a European arrest warrant of its own motion or at the request of non-judicial authority, including an executive agency such as a prison department, cannot be regarded as a judicial authority for ... |
The conclusions I reach on these appeals are that: i) The European arrest warrant issued in respect of Bucnys by the Ministry of Justice of Lithuania at the request of the Vilnius City 1st District Court was a valid Part I warrant under the 2003 Act, and Bucnyss appeal should accordingly be dismissed. RPC |
ii) The European arrest warrant issued in respect of Sakalis by the same Ministry of Justice at the request of the Prison Department was not a valid Part 1 warrant, and Sakaliss appeal should accordingly be allowed. RPC |
iii) The European arrest warrant issued in respect of Lavrov by the Ministry of Justice of Estonia at the request of the Viru County Court was a valid Part I warrant, and the Ministry of Justice of Estonias appeal in the case of Lavrov should accordingly be allowed. RPC |
This is a judgment on (i) an appeal brought by the Secretary of State for Work and Pensions, against the Court of Appeals decision in favour of Ms Caitlin Reilly and Mr Jamieson Wilson, that the Jobseekers Allowance (Employment, Skills and Enterprise Scheme) Regulations (SI 2011/917) (the 2011 Regulations), purportedly... |
The Secretary of States appeal is complicated by the fact that, since the Court of Appeals judgment was handed down, (i) the 2011 Regulations have been repealed and replaced by the Jobseekers Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013/276) (the 2013 Regulations), and (ii) t... |
We deal with this aspect in paras 33-41 below. FAC |
We will begin by describing the relevant statutory and regulatory provisions as they stood in 2011, and will then summarise the relevant facts relating to Miss Reilly and to Mr Wilson; after explaining the effect of the decision of the courts below, we will then turn to the effect of the 2013 Act and Regulations; after... |
The relevant statutory and regulatory provisions in 2011 STA |
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