Min for Justice v Puta & Sulej

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 06 May 2008
• Neutral Citation: [2008] IESC 30
• Docket Number: No 134/07
• Court: Supreme Court
• Date: 06 May 2008

[2008] IESC 30

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

No 134/07

No. 135/07

Min for Justice v Puta & Sulej

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between:

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Respondent

-AND-

TOMÁS PUTA

Respondent/Appellant

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Respondent

-AND-

MAROS SULEJ

Respondent/Appellant

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

LAW NO 253/2006 (CZECH REPUBLIC)

LAW NO 539/2004 SB (CZECH REPUBLIC)

PENAL CODE (CZECH REPUBLIC)

EUROPEAN ARREST WARRANT ACT 2003 S4A

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S69

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

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

TREATY ON EUROPEAN UNION ART 6(1)

TREATY ON EUROPEAN UNION ART 7(1)

TREATY ON EUROPEAN UNION ART 7(2)

TREATY ON EUROPEAN UNION ART 7

TREATY ON EUROPEAN UNION ART 6

EUROPEAN ARREST WARRANT ACT 2003 S22(2)

EUROPEAN ARREST WARRANT ACT 2003 S22(1)

EUROPEAN ARREST WARRANT ACT 2003 S22(3)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 27(2)

JUDGMENT of

Mr. Justice Fennelly

delivered the 6th day of May 2008

1 The court has delivered judgment rejecting the appeal of the above-name appellants who, together with one Mohammed Iqbal, contested the validity, having regard to the Constitution, of the European Arrest Warrant Act,2003. In this judgment I consider independent complaints made by the two appellants concerned in these appeals, which do not relate to the constitutional validity of the Act.

2 On 10th July 2006 European Arrest Warrants were issued by the Regional Court in Prague, a judicial authority in the Czech Republic, in respect of TomáS Pùta (the "first appellant") and MaroS Sulej (the"second appellant"). The first appellant is sought in respect of seven and the second appellant in respect of four charges of robbery and theft. All the offences are alleged to have been committed in the Czech Republic in 2000 and 2001. The first appellant is a citizen of the Czech Republic. The second appellant is a citizen of the Slovak Republic.

3 Each warrant was duly endorsed for execution by the High Court on 14^th July 2006; the appellants were arrested on 25^th August 2006; they were brought before the High Court (Peart J). Each filed Points of Objection and a number of supporting affidavits. Having heard appropriate evidence on formal matters such as identity, the learned High Court judge was satisfied that, subject the issues that had been raised in relation to fundamental rights under Part III of the Act of 2003, he was required to make the order sought in respect of each of the appellants.

4 The appellants advanced a number of grounds of objection to their surrender at the hearing in the High Court. Only three of these have been pursued on the appeal, namely:

5 1. The law implementing the European Arrest Warrant in the Czech Republic as from 1^st January 2005 purports to apply retrospectively insofar as the appellants are concerned. Their offences are alleged to have been committed in 2000 and 2001. Czech law does not permit the surrender from the Czech Republic of Czech citizens to other European Union countries in respect of offences committed prior to 1^st January 2005. This, it was argued, constitutes discrimination contrary to Czech Constitutional principles. Hence, the European Arrest Warrant was not duly Issued for the purposes of section 10 of the Act of 2003.

6 2. The appellants, according to their affidavits, believe the Czech Republic to be deeply corrupt. They worry for their safety, if returned. They will not have a fair trial, inter alia, because of widespread prejudicial publicity. To return them, in these circumstances, would be contrary to section 37 of the Act of 2003.

7 3. They say, based on the evidence given by a Czech official on a bail application in the High Court, that they will, if they are surrendered to the Czech Republic, be prosecuted or imprisoned in respect of offences other than those covered by the European Arrest warrants, in breach of sections 22 to 24 of the Act of 2003.

8 5. Peart J rejected each of these grounds of objection and made an order in the case of each appellant for his surrender to the Czech Republic pursuant to section 16(1) of the Act of 2003.

9 6. The appellants have brought appeals against the decision of the High Court in respect of the above three grounds.

10 Evidence of Czech law was placed before the High Court in each case. Each of the appellants relied on affidavit evidence from a person apparently qualified to practice law in the Czech Republic. The Minister's written submissions complain that the document produced in the case of the second appellant appears to be an unsworn document. Nevertheless, for what it is worth it seems to identify a simple legal contention.

11 7.Stripped down to its essentials, the point made relates to an alleged difference of treatment of the appellants compared with the treatment, under the rules governing the surrender of persons from the Czech Republic to other Member States, of Czech citizens. I confess that it is extremely difficult to be precise about the nature of the legal point, due partly to imperfections in the translated documents before the Court. It is said that citizens of the Czech Republic may not be surrendered pursuant to a European Arrest Warrant to another Member State in respect of offences alleged to have been committed before1^st January 2005. On the other hand the Czech Republic may seek the surrender from other Member States of persons (including citizens) who are sought in respect of offences alleged to have been committed before 1^st January 2005. This difference of treatment is said to have come about as a result of Law No 253/2006 modifying the effect of the European Arrest Warrant, as effected by Law 539/2004 Sb. That law had amended the Penal Code with effect from 1^st January 2005. An affidavit of Czech law, from Mr Jaroslav Ortman, a lawyer who has acted for the first appellant in a number of criminal proceedings was produced on his behalf in the High Court. Mr Ortman invokes what he calls "the constitutional principle of equality." Similar affidavit material has been submitted on behalf of the second appellant. Both appellant says that they are considering a constitutional complaint on behalf of the first appellant, which, if successful, according to Mr Ortman, "would have significant importance to the proceedings against the first appellant." Documents have been submitted suggesting that an application has been made to the Czech Constitutional Court at Brno. No decision of that Court has been produced.

12 8. Dr Michael Forde, Senior Counsel, argued for the appellants that the obligation of the courts to order the surrender of persons subject to European Arrest Warrants applies only when, as section 10 of the Act of 2003 provides, "a judicial authority in an issuing state duly issues a European arrest warrant…" (emphasis added). Counsel for the Minister draws attention to section 4A of the Act, inserted by section 69 of the Criminal Justice (Terrorist Offences) Act 2005, provides:

"It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown."

13 9.I will assume, for the purposes of the argument, that it would be contrary to the provisions of the Framework Decision if a Member State were to issue a warrant contrary to the terms of its own law and constitution. The presumption enjoined by section 4A reflects the principle of mutual recognition upon which the entire Framework Decision is based. Article 1(1) of the Framework Decision states that: "The European arrest warrant is a judicial decision issued by a Member State…" The burden is upon the appellants to show that the decision of the Regional Court of Prague to issue the arrest warrant was contrary to the law of the Czech Republic. That decision has not been set aside by any other judicial authority in the Czech Republic. Neither of the affidavits upon which the appellants rely alleges that the decision of the Prague Court was invalid or unlawful. At most, they evince an intention to make a complaint to the Constitutional Court.

14 10. This ground of appeal is, in my view, entirely unsustainable. The appellants wish this Court to rule that the provisions of Czech law which implement the European arrest warrant are contrary to Czech constitutional principles. This Court could not conceivably pass judgment on the validity of existing Czech legal provisions. That is patently exclusively a matter for the domestic legal system.

15 11. In these circumstances, it is not appropriate to express any view about whether the distinction identified by the appellants could amount to discrimination.

16 12. I would dismiss this ground of appeal.

17 13. The appellants have made wide-ranging charges against the Czech Republic, amounting, in effect, to a contention that that Member State is, in reality, not fit to be a member of the European Union. In doing so, they invoke section 37 of the Act of 2003, which provides:

18 (1) A person shall not be surrendered under this Act if-

19 (a) his or her surrender would be incompatible with the State's obligations under-

20 (i) the Convention, or

21 (ii) the Protocols to the Convention,

22 (b) his or her surrender would constitute a...