High Court allows surrender under EAW Act 2003 despite incomplete offence description for third charge.

THE HIGH COURT

Record No. 2026 106 EXT

[2026] IEHC 455

BETWEEN

MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

APPLICANT

AND

VALERIJUS VORONENKO

RESPONDENT

JUDGMENT delivered by Mr. Justice Sean Gillane on 10 July 2026

Introduction

1. This is an application for the surrender of the respondent to Lithuania (“the issuing state”), pursuant to section 16 of the European Arrest Warrant Act 2003, as amended (“the 2003 Act”), on foot of a European Arrest Warrant issued by the Deputy Chief Prosecutor of the Department of Criminal Prosecution of the Prosecutor General’s Office of the Republic of Lithuania on the 19th of March 2026 (“the warrant”).

2. The respondent was arrested on the 2nd of April 2026 on foot of a SIS alert and brought before this Court. The warrant was produced to this Court on the 8th of April 2026.

3. No issue has been raised by the respondent in relation to his identity, and I am satisfied that the respondent is the person identified in the warrant.

4. The warrant is an accusation warrant and the surrender of the respondent is sought for prosecution in relation to three alleged offences. These offences are described at Part E of the warrant and the relevant provisions of the Criminal Code of the Republic of Lithuania are cited.

5. The first offence is alleged to have occurred at an unidentified date and time whereby the respondent is accused of having unlawfully acquired a bank card issued in the name of another. In relation to the ‘tick box’ offences as provided for under Article 2.2 of the European Council Framework Decision dated the 13th of June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States (“the Framework

Decision”), the offence ticked is “forgery of means of payment.” No manifest error appears to arise nor is it contended for.

6. The second offence is alleged to have occurred on the 27th of January 2026 when the respondent is alleged to have used the bank card for a number of contactless payments. The ‘tick box’ procedure is not used in relation to this offence but correspondence can clearly be made out with the offence of using a false instrument contrary to section 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001, as amended.

7. The third offence is alleged to have taken place on the 13th of March 2024 at a location in Kaunas where it is alleged that the respondent intentionally pushed and knocked over a mobile speed detection device causing pecuniary damage worth €4,2544.21. (This is how the figure appears in the warrant and it is unclear whether the comma is in the wrong place. In any event, no point is taken on this by the respondent.)

8. The ‘tick box’ procedure is not used in relation to this offence but the applicant contends that correspondence can be made out with the offence of criminal damage contrary to section 2 of the Criminal Damage Act 1991, as amended (“the 1991 Act”). This is not accepted by the respondent.

9. Minimum gravity is clearly established in respect of all three offences with maximum penalties of six years’ imprisonment in respect of the first two offences and five years’ imprisonment in respect of the third offence.

Discussion

10. The respondent is a Lithuanian national and objects to his surrender.

11. A notice of objection was filed on the 18th of June 2026 pursuant to Order 98, Rule 5 of the Rules of the Superior Courts and the matter was listed for hearing on the 19th of June 2026.

12. While putting the applicant on proof in relation to all matters required by the 2003 Act, two specific points were raised and argued by the respondent.

13. Firstly, the respondent called for proof that the Deputy Chief Prosecutor of the Department of Criminal Prosecution of the Prosecutor General’s Office was competent to the issue the warrant.

14. Secondly, the respondent argued that correspondence is not made out in relation to the third offence.

15. In the course of argument before me, counsel for the respondent did not press the first point and, quite properly, drew my attention to Minister for Justice v. Garbenis [2024] IEHC 375, which involved an objection to surrender on the basis that the Lithuanian Prosecutor General was not a judicial authority within the meaning of the Framework

Decision or the 2003 Act.

16. In that case, Keane J. referred to the decisions of the High Court and the Court of Appeal in Minister for Justice and Equality v. Firantas [2020] IEHC 358; [2021] IECA 75. At paragraph 18 of Garbenis, he said that Donnelly J. had rejected this argument in the High Court: “… concluding that the principle of mutual trust and confidence between Member States means that the information provided by an issuing judicial authority can only be rejected as incorrect on the basis of the most cogent countervailing evidence, which could not be said of the evidence relied upon by the respondent in that case. Of course, no countervailing evidence whatsoever has been produced in this case.”

17. At paragraphs 19-20, Keane J. went on to say that: “The respondent appealed that decision on the ground that, under the Act of 2003, a fresh determination of the position in fact or law in the issuing state is necessary in every case, by reference to information provided specifically in the context of that case. The Court of Appeal (per Birmingham P; McCarthy and Kennedy JJ concurring) rejected that submission out of hand; Minister for Justice and Equality v Firantas, [2021] IECA 75 (at paragraph 18). In reaching that conclusion, Birmingham P observed (at paragraph 16): ‘Repetitive requests for the same information would, in my view, be disrespectful of the Lithuanian authorities and would … call into question their bona fides.’ For those reasons, I reject the submission that the Lithuanian Prosecutor General is not an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision. Hence, this objection fails.”

18. I am satisfied for the same reasons that there is no substance to this point of objection.

19. The principal objection under the heading of ‘correspondence’ only concerns the third offence and it was conceded by counsel for the respondent that even if he was successful in this argument, surrender would not be prohibited in respect of the first two offences.

20. In order to understand the argument advanced on behalf of the respondent and the applicant’s response, it is necessary to look in detail at what is alleged. Part E of the warrant describes the circumstances in which the third offence was alleged to have been committed in the following terms: “Moreover, on 13 March 2024, at around 10:00 p.m., while being near the building at Varnių g.38A, Kaunas, intentionally pushed with a hand and that way knocked over the mobile speed detection device Vitronic PoliScan FM1 (serial No. 955076) that had been standing on the ground and damaged it, that way causing pecuniary damage of 4,2544.21 EUR to the Police Department under the Ministry of the Interior of the Republic of Lithuania.

With such actions, Valerijus Voronenko is suspected of having committed the offence provided for in Article l87(2) of the Criminal Code of the Republic of Lithuania.”

21. The applicant submits that correspondence can be found in section 2 of the 1991 Act. This section provides that: “(1) A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence …

(6) For the purposes of this section a person is reckless if he has foreseen that the particular kind of damage that in fact was done might be done and yet has gone on to take the risk of it.”

22. The respondent argues that correspondence is not made out in circumstances where there is insufficient evidence to establish either that the damage arising from the respondent’s alleged actions was ever intended (including by recklessness) or that there was no “lawful excuse” for this action.

23. Counsel for the respondent relied on Minister for Justice and Equality v. Marjasz [2012] IEHC 233, where Edwards J. was concerned with the same objection in relation to the same putative corresponding offence i.e., criminal damage contrary to section 2 of the 1991 Act. Primarily, counsel relied on pages 37-38 where Edwards J. said that: “It was urged by counsel for the applicant, Ms. Dempsey B.L., that the requirements in Irish law that the respondent should have acted ‘without lawful excuse’ and ‘intending to damage any such property or being reckless as to whether any such property would be damaged’ are to be inferred from the general circumstances as disclosed in the warrant, and relies in particular on the words ‘destroyed’ and ‘to the detriment of’. In further support of her position Ms. Dempsey relies upon Attorney General v. Dyer [2004] 1 I.R. 40; Minister for Justice, Equality and Law Reform v. Dolny [2009] I.E.S.C. 48 and Minister for Justice, Equality and Law Reform v. Sas [2010] I.E.S.C. 16.

The difficulty with counsel for the applicant’s submission is that to destroy something, or to cause its destruction, to the detriment of another does not automatically imply intent or deliberation or absence of excuse. Something can be destroyed by accident and without either intention or recklessness. Thus, the cleaner who knocks a hundred year old vase off a mantelpiece with her feather duster commits no crime. Moreover, even where a destructive act is intentionally or recklessly carried out, it is not always done without lawful excuse. The old saw warns against interfering with a clock that doesn’t need fixing, and it does so for very good reason. Unnecessary interference with a clock, particularly by an unqualified person, and notwithstanding that it is done with the well intentioned objective of servicing it, may damage or even destroy the mechanism of the clock. However, the amateur horologist commits no crime because he has a lawful excuse. His objective has been to service the clock not to damage it.

Although it was submitted that the ingredients of absence of lawful excuse and intention or recklessness are all capable of being inferred from the general circumstances as disclosed in the warrant, and in particular the use of the word ‘destroyed’ and the phrase ‘to the detriment of’, that simply doesn’t follow. There is no basis on the limited facts provided for the drawing of the required inferences. It must be remembered that an inference only arises where two or more facts taken together connote, or suggest the existence of, a further fact or facts. However the facts that the respondent may have destroyed the property described in the charge to the detriment of a named party does not of themselves justify the inference that the destruction was committed intentionally/recklessly and not accidentally, and/or that there was an absence of lawful excuse.”

24. It seems to me, however, that these remarks must be read in the context of the description of the offence by the issuing judicial authority in that case. At page 34, it is recorded that: “The facts relating to the second offence, and set out at Part E.2.II of the warrant, are that: ‘On 7th May in Wolsztyn he destroyed an ISDN IT box and a telephone cable fan-out worth PLN 982, acting to the detriment of Polish Telecommunications Plc. (Telekomunikacja Polska S.A.) OSD Wolsztyn.’ Although a year in [sic] not given in the warrant it was later clarified in additional information that the full date of this offence is the 7th May, 2001.”

25. As can be seen, Marjasz involved an allegation that property was “destroyed” simpliciter, with absolutely no reference to any mens rea element in the particulars of the alleged offence. On that basis, it is, perhaps, unsurprising that the court was not prepared to draw an inference that the property had been destroyed intentionally or recklessly and not accidentally and/or that there was an absence of lawful excuse, as it was invited to do.

26. In this case, however, it is plain from the face of the warrant that the allegation is that the respondent intentionally pushed the mobile speed device with a hand and in that way knocked it over, damaging it.

27. There is nothing in the information before me, in the warrant or otherwise, from which even the possibility of a ‘lawful excuse’ might be inferred.

28. The applicable legal principles are clear and well established. The words in the warrant used to describe the offence are to be given their ordinary or popular meaning. The essential question to be addressed was expressed in the following way by Denham J. in Minister for Justice v. Dolny [2009] IESC 48 at paragraph 14: “In addressing the issue of correspondence it is necessary to consider the particulars on the warrant, the acts, to decide if they would constitute an offence in the State. In considering the issue it is appropriate to read the warrant as a whole. In so reading the particulars it is a question of determining whether there is a corresponding offence. It is a question of determining if the acts alleged were such that if committed in this jurisdiction they would constitute an offence.

It is not a helpful analogy to consider whether the words would equate with the terms of an indictment in this jurisdiction. Rather it is a matter of considering the acts described and deciding whether they would constitute an offence if committed in this jurisdiction.”

29. At pages 6-8 of Minister for Justice and Equality v. Cahill [2012] IEHC 315, Edwards

J. set out three objectives underpinning the statutory requirement for a description of the circumstances in which the offence was committed or alleged to have been committed: “The first is to enable the High Court, in its capacity as executing judicial authority, to be satisfied that it is appropriate to endorse the warrant for execution in this jurisdiction. … The second objective is to enable the executing judicial authority to be satisfied as to correspondence in cases in which double criminality is required to be demonstrated. ...

The third objective, and the critical one in the circumstances of the present case, is to enable the respondent to know precisely for what it is that his surrender is sought. A respondent is entitled to challenge his proposed surrender and in order to do so needs to have basic information about the offences to which the warrant relates. Among the issues that might be raised by a respondent are objections based upon the rule of specialty, the ne bis in idem principle and extra-territoriality to name but some. In order to evaluate his position, and determine whether or not he is in a position to put forward an objection that might legitimately be open to him to raise, he (and also his legal advisor in the event he is represented) needs to know, in respect of each offence to which the warrant relates, in what circumstances it is said the offence was committed, including the time, place, and degree of participation in the offence by the requested person.”

30. It seems to me that the answer to the question of whether the particulars on the warrant in relation to the third offence would constitute an offence in this State is a resounding yes, and that offence is one of criminal damage contrary to section 2 of the 1991 Act.

31. I am satisfied that the requirements of section 11 of the 2003 Act have been met in relation to the classification of the offences concerned under the law of the issuing state and that the description of the facts underpinning the offences are clearly set out at Part E of the warrant.

32. I am satisfied that I am not required to refuse the respondent’s surrender under sections 22, 23 or 24 of the 2003 Act. I am also satisfied that I am not required to refuse surrender for any other reason pursuant to Part 3 of the 2003 Act.

33. For the reasons set out above, I am satisfied that the warrant was issued by a judicial authority in the issuing state and that the address, telephone number and email address of the issuing judicial authority are set out on the face of the warrant.

Conclusion

34. For the reasons set out above, I reject the points of objection raised by the respondent to his surrender. I therefore propose to make an order for his surrender to such person as is duly authorised to receive him on behalf of the issuing state.