Min for Justice v Adam

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 03 March 2011
• Neutral Citation: [2011] IEHC 68
• Court: High Court
• Date: 03 March 2011

[2011] IEHC 68

THE HIGH COURT

Record No 197 EXT/ No 2010

Min for Justice v Adam (No 1)

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant

- AND -

JOSEF ADAM

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

CRIMINAL JUSTICE (TERRORISTS OFFENCES) ACT 2005 S79

CRIMINAL JUSTICE (TERRORISTS OFFENCES) ACT 2005 S80

CRIMINAL JUSTICE (TERRORISTS OFFENCES) ACT 2005 S81

CRIMINAL JUSTICE (TERRORISTS OFFENCES) ACT 2005 S82

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 20032003 PART 3

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)(B)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)(I)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN ARREST WARRANT ACT 2003 S37

CRIMINAL CODE OF THE CZECH REPUBLIC S67(A)

CRIMINAL CODE OF THE CZECH REPUBLIC S67(C)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 8

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 12

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 6

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

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 51

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 52

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 47

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

H v FRANCE 1990 12 EHRR 74

STOGMULLER v AUSTRIA 1979-80 1 EHRR 155

ZIMMERMAN & STEINER v SWITZERLAND 1984 6 EHRR 17

MCFARLANE v IRELAND UNREP ECHR 10.9.2010 2010 ECHR 1272 (APPLICATION NO 31333/06)

MUTI v ITALY A 281-C52

SUSSMAN v GERMANY 1998 25 EHRR 64

REID v UNITED KINGDOM 2003 37 EHRR 211

GUINCHO v PORTUGAL 1985 7 EHRR 223

ABDOELLA v NETHERLANDS 37 EHRR 21

ALBO v ITALY 2006 43 EHRR 27

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(3)

KREPS v POLAND UNREP 26.7.2001 APPLICATION NO. 34097/96

SIMONAVICIUS v LITHUANIA UNREP 27.6.2006 APPLICATION NO. 37415/02

ALTUN v TURKEY UNREP 19.10.2006 APPLICATION NO. 66354/01

APICELLA v ITALY UNREP 29.3.2006 APPLICATION NO. 64890/01

MITCHELL & HOLLOWAY v UK UNREP 17.12.2002 APPLICATION NO. 44808/98

MCFARLANE v IRELAND UNREP 10.11.2010 APPLICATION NO. 31333/06

PHILIS v GREECE (NO 2) 1997 25 EHRR 417

GIANNANGELI v ITALY UNREP 5.7.2001 APPLICATION NO. 41094/98

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669

PORTER v MAGILL 2002 2 AC 357

M (P) v MALONE 2002 2 IR 560

M (P) v DPP 2006 3 IR 172

MIN FOR JUSTICE v HALL UNREP SUPREME 7.5.2009 2009/39/9728

PORTINGTON v GREECE UNREP 23.9.1998

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(C)

VILVARAJAH v UK 1991 14 EHRR 248

NORRIS v GOVERNMENT OF THE UNITED STATES OF AMERICA 2010 UKSC 9

CRIMINAL PROCEEDINGS AGAINST PUPINO 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142 2005 ECR I-5285 2005 2 CMLR 63

A-G's REFERENCE (NO 2 of 2001) 2004 1 AER 1049 2004 2 AC 72

MIN FOR JUSTICE v GHEORGHE UNREP SUPREME 18.11.2009 2009/39/9656

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148

MIN FOR JUSTICE v BRENNAN 2007 3 IR 732

MIN FOR JUSTICE v GARDENER UNREP PEART 6.2.2007 2007/40/8335

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

H (T) v DPP 2006 3 IR 520

MIN FOR JUSTICE v GORMAN UNREP PEART 22.4.2010 2010 IEHC 210

Abstract:

Criminal law - European Union law - European arrest warrant - Surrender - Fair trial - prosecutorial delay - Effective remedy - Czech courts - Objection to surrender - European arrest warrant Act, 2003, as amended

Facts: The respondent was the subject of an arrest warrant issued by the Czech Republic. The respondent objected to his surrender on the grounds that on account of unreasonable prosecutorial delay of 3 years, the surrender would violate his right to a fair trial pursuant to Article 6 ECHR and would breach the provisions of Article 47 of the Charter of Fundamental Rights. The respondents sought to distinguish the decision of the Supreme Court in Minister for Justice, Equality & Law Reform v. Stapleton [2008] 1 IR 669.

Held by Edwards J. that the Court felt that it was bound by Minister for Justice, Equality & law Reform v. Stapleton. The question of whether there was historically a breach of the respondent's right to a fair trial was more efficiently and conveniently to be decided by the Czech courts. The respondent had not discharged the evidential burden on him and he had not put before the Court any evidence to displace the presumption that an effective remedy would be available to him before the Czech courts to remedy continuing breaches. The Court was not satisfied that to surrender the respondent would constitute an undue interference with the respondent's family and private life. The surrender of the respondent was not prohibited by Part 3 of the European arrest warrant Act, 2003, as amended.

Reporter: E.F.

1 JUDGMENT of Mr Justice John Edwards delivered on the 3rd day of March 2011

Introduction:

2 The respondent is the subject of a European Arrest Warrant issued by the Czech Republic on the 9 ^th of March, 2010. The warrant was endorsed for execution by the High Court in this jurisdiction on the 19 ^th of May 2010. The respondent was arrested in Killarney on the 20 ^th of July 2010 but does not consent to his surrender to the Czech Republic. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the European Arrest Warrant Act, 2003 as amended (hereinafter referred to as "the 2003 Act" directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s. 16 of the 2003 Act.

3 In that regard the central point that the Court is required to consider in the particular circumstances of this case is whether, having regard to alleged unreasonable prosecutorial delay in this case, it would violate the respondent's rights under Article 47 of the Charter of Fundamental Rights and/or under Article 6 of the European Convention on Human Rights and Fundamental Freedoms to return the respondent to the issuing state.

4 The applicant contends that the legal issues raised by the respondent have already been decided by the Supreme Court in Minister for Justice, Equality and Law Reform v Stapleton [2008] 1 I.R. 669. The respondent seeks to distinguish Stapleton.

Uncontroversial s. 16 issues

5 The applicant has been put on full proof by the respondent. Accordingly, as no admissions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the 2003 Act, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied.

6 The Court has received an affidavit of Det Garda William Stack sworn on the 1 ^st of December, 2010 and has also received and scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest Warrant which is on the Court's file and which bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

7 (a) the person before it is the person in respect of whom the European arrest warrant was issued;

8 (b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the 2003 Act;

9 (c) the Court does not require to receive an undertaking in accordance with s.45 of the 2003 Act in the circumstances of the case;

10 (d) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the 2003 Act.

11 The Court is further satisfied that the European Arrest Warrant in this case is in the correct form, and that the requirements of the statute with respect to correspondence and minimum gravity are met. The warrant is a prosecution type warrant and the respondent is wanted in the Czech Republic for trial in respect of 22 offences, allegedly committed on various dates between August 2002 and July 2003, respectively, the majority of which correspond with theft offences in this jurisdiction with the remainder corresponding to criminal damage in this jurisdiction.

12 In addition the Court has had produced to it the European...