(CN) - Applying the "fool me twice, shame on me" adage to extradition, an EU court adviser said Thursday that a second round of bad behavior by a prisoner during a transfer is not a force majeure authorizing a third attempt.
Authorities in Lithuania issued a European arrest warrant for one Tomas Vilkas, who was already in custody in Ireland for attacking an American with a golf club. Vilkas was supposed to be handed over to Lithuania aboard a commercial flight on a specific date; however, the man became agitated, aggressive and refused to board the plane and - given his behavior - the pilot wouldn't let him on board either.
Two weeks later, Irish and Lithuanian authorities attempted a second handoff with identical results. Anticipating that this could go on indefinitely, Irish officials made arrangements to take Vilkas by sea to mainland Europe and then over land to Lithuania.
Ireland's high court had to approve the latest effort. But it determined that it didn't have jurisdiction to hear a third extradition request under EU law and ordered Vilkas' release.
An appeal ensued, leading the appellate court to ask the European Court of Justice whether EU law allows for repeated extradition efforts when events happen beyond the control of member states and those events are ongoing or recur.
In his advisory opinion for the EU high court, Advocate General Michal Bobek said EU law permits subsequent attempts to extradite a prisoner when a force majeure prevents the initial transfer. But the circumstances beyond member states' control must be abnormal and unforeseeable in order to qualify as a legal force majeure - and not applicable in a case where Vilkas behaved badly but authorities didn't take precautions to prevent the second outburst, Bobek said.
"If the narrow interpretation of force majeure as suggested in this opinion is embraced, it is clear that any rerun will occur only in very exceptional situations," Bobek wrote. "On this understanding, the aggressive behavior of the requested person frustrating a first surrender attempt could be qualified as force majeure only if there was nothing in the file and the facts of the individual case which would have led the national judicial authorities to have reasonably foreseen such a course of events.
"By contrast, a repetition of almost identical behavior preventing a subsequent surrender attempt could not be reasonably qualified as force majeure, unless, on the facts of the case, the competent authority had reason to believe that such a scenario could not reoccur."
Resolving that question, Bobek said, must be left to the Irish court after examination of Vilkas' file and previous conduct.
Bobek's advisory opinion is not binding on the Luxembourg-based high court, which has begun its own deliberations in the case.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.