Min for Justice v Dunkova

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 30 May 2008
• Neutral Citation: [2008] IEHC 156
• Docket Number: Record Number: No. 133 Ext./2007
• Court: High Court
• Date: 30 May 2008

Min for Justice v Dunkova

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Vera Dunkova

Respondent

[2008] IEHC 156

Record Number: No. 133 Ext./2007

THE HIGH COURT

Abstract:

Criminal law - Extradition - Surrender of respondent - Whether respondent person to whom s. 10 applied - Whether offence corresponded to offence in this jurisdiction - European Arrest Warrant Act 2003

The surrender of the respondent was sought by a judicial authority in the Czech Republic so that she could serve the balance of a sentence of imprisonment. The respondent contended inter alia that she could not be regarded as having “fled” from the issuing state since as a matter of Czech law the sentence had expired before she left. The respondent also contended that the facts as set out in the warrant would not if done in this jurisdiction have given rise to an offence of robbery.

Held by Peart J. in refusing to make an order for the respondent’s surrender that the offence alleged in the warrant did not correspond to an offence in this jurisdiction. The description of the charge in the warrant was not sufficient to demonstrate correspondence with the Irish offence with which it was said to correspond. The respondent left the Czech Republic while there existed an outstanding obligation under Czech law.

Reporter: R.W.

EUROPEAN ARREST WARRANT ACT 2003 S45

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

EUROPEAN ARREST WARRANT ACT 2003 S15

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S10(d)

CRIMINAL CODE S68 (CZECH REPUBLIC)

CRIMINAL CODE S68(2) (CZECH REPUBLIC)

MIN JUSTICE v TOBIN UNREP SUPREME 25.2.2008 2008 IESC 3

EUROPEAN ARREST WARRANT ACT 2003 S3

EUROPEAN ARREST WARRANT ACT 2003 S10(d)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL CODE S247 (CZECH REPUBLIC)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(5)

AG v DYER 2004 1 IR 40 2004 1 ILRM 542 2004/3/491

LARCENY ACT 1916 S32

CRIMINAL JUSTICE ACT 1951 S10

MYLES v SREENAN 1999 4 IR 294

EUROPEAN ARREST WARRANT ACT 2003 S5

CONSTITUTION

EUROPEAN ARREST WARRANT ACT 2003 S37

CROWTHER v UNITED KINGDOM UNREP ECHR 1.2.2005 (APP NO 52741/00)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 7

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought by a judicial authority in the Czech Republic so that she can serve the balance of a sentence of imprisonment imposed upon her there on the 26^th February 1996. An appeal against that sentence was disposed of on the 31^st May 1996, and according to the warrant became effective and enforceable thereafter. I will address an issue arising from the postponement of the commencement of that sentence to 9^th December 1998 at the respondent's request, when addressing the points of objection raised by the respondent on the present application for an order for surrender.

2 I am satisfied from the evidence adduced on this application that the respondent is the person in respect of whom this European arrest warrant has been issued. No issue to the contrary has been raised.

3 The trial and sentence of the respondent did not take place in absentia, and no undertaking under s. 45 of the Act arises.

4 I am satisfied that there is no reason under sections 21A, 22, 23 or 24 of the Act to refuse to make the order sought, and I am satisfied also, subject to addressing the points of objection raised herein, that her surrender is not prohibited by any provision in Part III of the Act or the Framework Decision.

5 The respondent has referred to the affidavit sworn by Sgt. Kirwan following his arrest of the respondent, and in which he states, inter alia, that following the arrest of the respondent on the 28^th September 2007 he informed her that "under section 13 of the European Arrest Warrant Act she could consent to her early surrender to the requesting state....". It is argued on her behalf that he has thereby failed to comply with the provisions of s. 13 of the Act because the right to consent is a right under s. 15 of the Act and not under s. 13 of the Act. Factually it is correct to say that the right to consent to surrender is a right under s. 15 of the Act, but it is perfectly obvious that the affidavit simply contains an error as to the number of the section. What is clear is that she was told that she had the right to consent should we wish to do so. In addition, s. 13 of the Act requires the Court, when remanding the respondent to the hearing date, to again inform the respondent of her right to consent as well as of her right to the services of an interpreter, and to her right to be provided with legal advice and representation. The error in relation to the number of the section concerned has not deprived the respondent of any substantive right to which she is entitled on this application, and I am completely satisfied that the error in the affidavit is not such as to render her arrest unlawful or otherwise to require a refusal of the order sought for her surrender.

6 These two points of objection can be taken together:

7 Section 10 of the Act provides:

8 10.-Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-

9 (a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates, or

10 (b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,

11 (c) who has been convicted of, but not yet sentenced in respect of, an offence to which the European arrest warrant relates, or

12 (d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she-

13 (i) commenced serving that sentence, or

14 (ii) completed serving that sentence,

15 that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state. (my emphasis)

16 It is paragraph (d) which is relevant, since the respondent is a person who was sentenced to a term of imprisonment before she left the Czech Republic, and the question arising is whether given the circumstances in which she left that country, she is a person who "fled".

17 It is necessary to set out those circumstances as evidenced from her own affidavit and the other documentation accompanying this application.

18 The offence for which she was convicted was committed on the 13^th February 1995. Her trial took place on the 23^rd May 1995 when she was found guilty. On the 26^th February 1996 she was sentenced to a term of two years and six months' imprisonment, and having appealed that conviction and sentence, they were confirmed by order of the appeal court on the 31^st May 1996. It would appear from her affidavit that she spent time in custody from a date in February 1995 until a date in June 1995 having applied for temporary release on the basis that she was pregnant and suffering from heart disease. It is presumably that period of time in custody which has resulted in the warrant indicating that of the sentence of two years and six months imposed on her there remains a period of two years, two months and twenty two days remaining to be served by her upon surrender.

19 She was never brought back to prison following her temporary release in June 1995. However, a letter dated 7^th January 2008 from the District Court in Prague has stated that on the application of the respondent a "resolution" was made by the court on the 27^th January 1998 whereby "it was decided to suspend the execution of imprisonment..... for a period until December 9, 1998, the resolution becoming legally valid on the March 3, 1998."

20 An important matter arising on this application is that under the law of the Czech Republic there is a limitation period of five years in relation to this sentence. A question arising for consideration in due course, but relevant also to this particular ground of objection is whether that limitation period expired on the 2^nd March 2003 (being five years from the 3^rd March 1998 when the resolution became valid) or on the 8^th December 2003 (being five years from the end of the postponement period). The respondent submits that when she left the Czech Republic on the 17^th July 2003, the sentence was unenforceable, as five years had passed since the 3^rd March 1998, and accordingly she was free to leave and did not therefore "flee".

21 Another relevant fact is that in the month of June 1998, the respondent sought a pardon in respect of the offence. It appears that this application was forwarded to the Ministry of Justice on the 24^th June 1998 for a decision, but no decision was made on that application before she left the country, or thereafter, even to the present day. Yet another relevant fact, according to the said information dated 7^th January 2008 is that on the 7^th March 2003, the authorities sent "an invitation to start executing the imprisonment, but she did not arrive for the execution of the punishment". It goes on to state that on the 3^rd September 2003 "a search for the convicted was announced", and that it was discovered that she was by then in this country. The respondent on the other hand emphasises the fact that the postponement resolution is stated by the District Court in Prague to have "come into effect on the 3^rd March 1998", and that the latter must be seen as the date from which the...