Min for Justice v Marek

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 03 February 2010
• Neutral Citation: [2010] IEHC 198
• Docket Number: Record Number: No. 82 Ext./2007
• Court: High Court
• Date: 03 February 2010

[2010] IEHC 198

THE HIGH COURT

Record Number: No. 82 Ext./2007

Min for Justice v Marek

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Jindrich Marek

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S45

CODE OF CRIMINAL PROCEDURE OF THE CZECH REPUBLIC S306A(2)

CODE OF CRIMINAL PROCEDURE S211

EXTRADITION

European arrest warrant

Undertaking - Retrial - Conviction in absentia - Clarification sought from issuing judicial authority regarding form and nature of retrial of respondent - Undertaking provided by issuing judicial authority in terms of s 45 of Act - Reference to reading of witness statements rather than hearing witnesses -Undertaking uncertain and ambiguous - Whether undertaking was sufficient compliance with s 45 of Act - Whether retrial guaranteed - European Arrest Warrant Act 2003 (No 45) s 45 - Surrender granted (2007/82EXT - Peart J - 3/2/2010) [2010] IEHC 198

Minister for Justice, Equality and Law Reform v Marek

Facts The proceedings concerned an application on behalf of the Czech authorities for the extradition of the respondent. The order of surrender had already been granted but on appeal the Supreme Court ordered that the High Court inquire as to whether section 45 of the European Arrest Warrant Act, 2001 was being complied with. Of particular concern was the fact that the original conviction and sentence had been rendered in absentia. It fell to the Court to inquire as to whether the applicant would have the right of retrial and whether the nature of the undertaking being offered by the Czech judicial authorities in this regard was sufficient. In addition the Court was concerned as to whether the retrial being offered would be a de novo trial.

Held by Peart J in granting the application. The Court was satisfied that at a new trial all witnesses that gave evidence at the original trial would be required to give evidence at a new trial. Where such witnesses were unavailable their original statements can be presented provided the accused agrees. In such circumstances the Court was satisfied that the nature of the retrial being offered was trial de novo. The order of surrender being sought would be granted.

Reporter: R.F.

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent to the Czech Republic was ordered by order of the High Court dated 23rd of November 2007, the court being satisfied on that occasion that all the requirements of section 16 of the European Arrest Warrant Act2003, as amended, were complied with. However, following an appeal to the Supreme Court by the respondent, the application for surrender has been remitted by that Court for a determination as to whether the provisions of section 45 of the Act have been complied with.

2 Since that date, there has been correspondence between the Central Authority here and the issuing judicial authority in order to clarify the form and nature of any retrial of the respondent which would take place, following surrender being ordered, if the respondent chose to exercise his right to a retrial. This arises, of course, because the issuing judicial authority acknowledges that the conviction and sentence for which his surrender is being sought, was rendered in absentia.

3 Section 45 of the Act, as amended, provides as follows:

4 2 45.-A person shall not he surrendered under this Act if -

5 (a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and

6 (a) (i) he or she was not notified of the time when, and place at which, he or she would he tried for the offence,

or

7 (i) he or she was not permitted to attend the trial in respect of the offence concerned,

8 unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered-

9 (i) be retried for that offence or he given the opportunity of a retrial in respect of that offence,

10 (ii) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and

11 (iii) be permitted to be present when any such retrial takes place.

12 While the issuing judicial authority provided an undertaking in the precise terms referred to above, the Supreme Court was of the view that in deciding whether this undertaking was a sufficient compliance with the terms of section 45, some material contained in page 2 of the European Arrest Warrant could not be ignored. On page 2 at paragraph D of the warrant the issuing judicial authority first of all stated that the respondent, following surrender, would have the right to a new trial in his presence, and that this right was guaranteed to him by section 306a, para 2 of the Code of Criminal Procedure. The provisions of section 306a are set out in full and include a paragraph which was of concern to the Supreme Court. That paragraph states as follows:

13 2 "(1) ……… If the defendant so demands, new evidence shall be submitted to the court, which had not been presented in the previous proceedings, whose character can allow it or which cannot be prevented by any other relevant matter, otherwise the statements of the evidence will be read to the accused and he will have a possibility to comment on them."

14 In that regard, the Chief Justice stated the following:

"That raises the question in the mind of the Court as to the meaning and effect and the interpretation to be given to the undertakings provided by the requesting judicial authority pursuant to s. 45. Simply reading statements of evidence rather than hearing witnesses does not suggest a retrial.

The Court is not satisfied that there is, in relation to the request for surrender founded on the European Arrest Warrant, sufficient documentation or information regarding the nature and form of the retrial that will take place if the applicant is returned to it, and therefore it does not consider that the order for surrender made by the High Court was correctly made in the circumstances outlined. That however is not the end of the matter. The European Arrest Warrant and the scheme and system of surrender envisaged by it anticipated that that there may be circumstances in which there is a lack of clarity or a gap in the information before Court dealing with such a request. That this should be anticipated is not surprising considering the number of countries covered by the system of surrender and the different languages which require a translation of relevant documentation which may give rise to ambiguities.

Having come to the conclusion that because of, at the very least, an ambiguity in respect of the undertakings given having regard to what is contained in page 2 of the European Arrest Warrant, the Court, as I have indicated, feels it should set aside the Order of the High Court, it having been incorrectly made, and considers that the matter should be remitted to the High Court in order that the High Court can, pursuant to s. 20 of the Act, require the issuing judicial authority to provide it with such additional documentation or information as will enable it to determine the nature and form of the retrial which the requesting judicial authority says may take place, and will if the appellant so requests, on his return to the Czech Republic, should that Order eventually be made."

15 As I said, the Central Authority requested further information on the nature of the retrial which, if the respondent so requests, will be afforded to him if he is surrendered.

16 By letter dated 31^st March 2009 the issuing judicial authority in its opening paragraph states first of all that the Code of Criminal Procedure guarantees the right of the respondent to what is described as "a righteous trial", and that the existing judgment of the court may be annulled at the request of the convicted person. Regarding the nature of the retrial the following is stated:

"The retrial shall be held from the beginning, i.e. after reading the charge, with maintaining all the procedural rights of the respondent. The retrial shall he held in the presence of the respondent. The respondent is entitled to have a defender under section 36 subsection 1, letter a) of the Code of Criminal Procedure. If he does not choose one, a defender shall be appointed for him. The respondent has the right to refuse the statement and such a fact shall not be considered an aggravation. The respondent has the right for all evidence to be repeatedly presented, when the nature of them allows it or when no significant circumstance could prevent it, under section 306a of the Code of Criminal Procedure, which is enclosed. In such a case the records of evidence and proofs shall be read to the respondent and he will have the possibility to comment on them. The respondent has the right to express his opinion on all the proofs, i.e. to each proof individually. He can also offer new evidence for his defence. After the decision of the court of first instance, the respondent has the right to appeal against it under the law. The respondent shall be duly instructed about all his rights."

17 This letter goes on to state that "the nature and form of the retrial will be the same, as already mentioned above. It will be a repeated trial in the presence of the respondent and all his procedural rights will he respected".

18 It is also stated in this letter that "the respondent has the right to be present during the interrogation of witnesses, he may ask questions (cross-examine), either personally or through his defender, he may comment on the witnesses' statements and express his opinion on them".

19 ...