Min for Justice v Orszagh

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 08 March 2011
• Neutral Citation: [2011] IEHC 155
• Court: High Court
• Date: 08 March 2011

[2011] IEHC 155

THE HIGH COURT

Record Number: No. 135 Ext./2009

Record Number: No. 313 Ext./2009

Record Number: No. 181 Ext./2010

Min for Justice v Orszagh

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Tomás Országh

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S45

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

ROAD TRAFFIC ACT 1961 S52

ROAD TRAFFIC ACT 1961 S53

CRIMINAL DAMAGE ACT 1991 S2

CRIMINAL CODE OF THE REPUBLIC OF POLAND S362(1)

CRIMINAL CODE OF THE REPUBLIC OF POLAND S362(2)

EUROPEAN ARREST WARRANT ACT 2003 S10

1 Mr Justice Michael Peart delivered on the 8th day of March 2011:

2 The surrender of the respondent is sought by judicial authorities in Slovak Republic on foot of three separate European arrest warrant which issued there on different dates and in respect of separate offences.

The first warrant:

3 The first warrant issued on the 9 ^th October 2008. It was thereafter transmitted to the Central Authority here and on the 10 ^th June 2009 this warrant was endorsed for execution. Thereafter on the 5 ^th July 2010 the respondent was arrested on foot of same, and was brought before the High Court on the following day, the 6 ^th July 2010, as required by section 13 of the European Arrest Act, 2003, as amended ("the Act of 2003").

4 This warrant seeks the surrender of the respondent so that he can serve a sentence of 28 months imprisonment which was imposed in absentia on the 19 ^th May 2008. An undertaking has been provided by the issuing judicial authority which is sufficient to satisfy the requirements of section 45 of the Act of 2003 in relation to affording the respondent the opportunity of a retrial.

5 The offence for which he was convicted and sentenced is essentially one whereby he obtained a loan of money on the basis of false information which he provided in support of his application in relation to his employment.

6 I am satisfied that this offence if committed here would be an offence here under section 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, namely the offence of making a gain by deception.

7 Minimum gravity is satisfied by the length of sentence imposed upon him, namely one in excess of four months.

8 The respondent has not pursued the only point of objection which was raised in Points of Objection, which was in relation to the requirement that an undertaking for a retrial is required. There is such an undertaking in relation to the conviction which is the subject of this warrant.

9 There is no reason to refuse surrender under sections 21A, 22, 23 or 24 of the Act of 2003, and I am satisfied that his surrender is not prohibited by reason of any provision of Part III of the Act of 2003 or the Framework Decision.

The second warrant:

10 The second warrant is one which issued on the 29 ^th January 2009. It was endorsed for execution here on the 25 ^th November 2009, and, he was arrested on the 5 ^th July 2010 also on foot of this warrant and brought before the High Court on the 6 ^th July 2010, as required.

11 This warrant is in respect of two offences for which he was convicted and for which he received a cumulative sentence of 8 months imprisonment following his conviction on the 21 ^st September 2005. He was present for his trial for these offences, so no undertaking is required under section 45 of the Act of 2003. However, this 8 month sentence was conditionally suspended for a period of 18 months, and it appears that because he was in breach of the conditions attaching to the suspension, the sentence was activated, so that his surrender is now sought to enable that sentence to be served.

12 The conditions attaching to that suspension of sentence were not set forth in the warrant, and it became necessary to seek further information in that regard in view of an issue raised by the respondent that he did not 'flee' from the Slovak Republic when he came to this country. I will come to that matter in due course.

13 He was not present for the hearing which led to the activation of the sentence, and he submits that an undertaking under section 45 of the Act of 2003 is required for retrial, or presumably a rehearing of the activation application since he was not present at the hearing which led to the deprivation of his liberty. Edward Dwyer BL for the respondent has submitted that such an undertaking is required since the concept of a trial must include the sentence hearing also, and it was only on foot of the activation hearing that the respondent is required to serve this 8 month sentence. I cannot agree with that submission. He was present at his trial and when the sentence was imposed. The fact that it was what we call a suspended sentence does not mean that it is not a sentence. There is no requirement that he be afforded a rehearing of the activation hearing or a retrial of the case.

14 The offences are set out in detail in the warrant and since no issue is raised in relation to correspondence in relation both offences, I will not set out those details, but rather, simply indicate that I am satisfied that the first offence corresponds to an offence of either careless driving or even dangerous driving contrary to section 52 or section 53 of the road Traffic Act, 1961. The second offence is one of causing criminal damage and would correspond here to that offence under section 2 of the Criminal Damage Act, 1991.

15 Minimum gravity is satisfied by the length of sentence imposed, and the fact that it was at first suspended does not affect that.

16 Subject to addressing the fleeing point I am satisfied that there is no reason to refuse to order surrender under the provisions of sections 21A, 22, 23 or 24 of the Act of 2003 and that surrender is not prohibited by any provision of Part III of the Act of 2003 or the Framework Decision.

The third warrant:

17 This warrant is dated 13 ^th October 2008, and it was endorsed for execution by the High Court on the 2 ^nd June 2010. The respondent was arrested on foot of this warrant on the 6 ^th July 2010 and brought before the Court on that date, as required.

18 This warrant relates to two offences of driving while he was disqualified from driving. I am satisfied that these offences correspond to offences of driving without a licence contrary to the Road...