Minister for Justice and Equality v A.B.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 19 May 2015
• Neutral Citation: [2015] IEHC 338
• Court: High Court
• Date: 19 May 2015

Min for Justice v B (A)

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

AB

RESPONDENT

[2015] IEHC 338

[No. 126 EXT/2013]

THE HIGH COURT

Crime & Sentencing – Framework Decision (2002/584/JHA) – Extradition – Conditions to execute European Arrest Warrants

Facts: The applicant sought an order for the surrender of the respondent to Hungry pursuant to two separate European Arrest Warrants. Upon the representations made by the respondent regarding the second warrant, a retrial had been ordered in Hungry and it had been contended that the said warrant sought him for conduction of criminal proceedings. The respondent contended that in the light of change circumstance, the warrant now became defective as it no longer remained the warrant for conviction.

Ms. Justice Donnelly refused the surrender of the respondent on both warrants. The Court held that the Framework Decision (2002/584/JHA) required the Courts to endorse the European Arrest Warrants that had been issued for the purpose of either criminal prosecution or execution of the custodial order and such warrants could be issued for prosecution of an individual for one or more offences or execution of sentences. The Court observed that said warrants should have been based out of existence of an enforceable judgment or judicial decision. The Court held that the warrant seeking arrest of the respondent was issued for the purpose of execution of an arrest but not for prosecution and therefore, not liable to be endorsed by the High Court. The Court was of the view that a warrant could not be re-applied or interpreted differently with what it was intended to do for an entirely different circumstance and it would need issuance of a separate warrant before an individual would be required to be surrendered.

1 1. The surrender is sought of the respondent in respect of two separate European Arrest Warrants ("the EAW") issued by Hungarian judicial authorities. This judgment only relates to that EAW which was issued second-in-time. This particular EAW was issued on the 19 ^th September, 2012, by a judicial authority in Hungary and endorsed by the High Court on the 4 ^th June, 2013. Under that EAW, the respondent's surrender was sought under what are described at section (b) of the said EAW as two enforceable judgments ("judgment one" and "judgment two").

2 2. In relation to judgment one, as detailed under the EAW, it is stated that he was convicted and sentenced to five months in jail for failure to pay child support. Counsel for the Minister for Justice and Equality ( "the Minister") has not been able to identify any possible corresponding offence in this jurisdiction. I have considered the matter and I too am not in a position to find a corresponding offence. Therefore, surrender must be refused on this enforceable judgment i.e. judgment one.

3 3. Judgment two is said to be a judgment dated the 10 ^th October, 2006, of the Enes city court (as a court of first instance) and final operative judgment dated the 19 ^th April, 2007, of the Miskolc court (as a court of second instance). In relation to judgment two, part (c) of the EAW says that the respondent received a custodial sentence of one year in prison and that eleven months in prison remain as he had the custodial term reduced by one month having regard to his pre-trial detention.

Correspondence

4 4. Judgment two concerns a total of four offences of which the EAW states that he has been convicted. Essentially, the EAW details two offences of false imprisonment of his former spouse and his son in their own home, an offence of criminal damage to a phone belonging to his wife and an assault on his wife which resulted in injuries to her nose, knees, temple, thigh, shin and left ear. It is clear from the face of the warrant that the offences correspond with an offence in this jurisdiction and it is also clear that the minimum gravity provisions have been complied with as he is required to serve all or part of a term of imprisonment of not less than 4 months. Moreover, if these are offences for which his prosecution is sought, minimum gravity would also be satisfied in respect of each of those offences as they are each punishable by imprisonment or detention in Hungary for a maximum period of not less than 12 months.

Change in the purpose for which surrender is sought

5 5. Issues were raised by the central authority in this case concerning the matter of a trial in absentia. Initially, the issuing judicial authorities confirmed that the respondent would have the right of retrial in this case if he were to be surrendered. It appears that the respondent himself made representations to the courts in Hungary regarding the possibility of a retrial. That retrial appears to have been ordered in the case of judgment two. By letter dated the 14 ^th January, 2015, the Hungarian central authority replied to the central authority in this jurisdiction confirming that a review of the criminal case had been ordered in connection with the first and second instance judgments under judgment two in the second EAW. That letter indicated that the execution of the relevant EAW is still requested in connection with the offences under the judgment two of the warrant for "conducting criminal prosecution".

6 6. In the course of the hearing before this court, counsel for the respondent raised the issue that surrender was now prohibited in circumstances where the original warrant was a conviction warrant and that by additional information there was an attempt to change this to a warrant for the purposes of prosecution. Counsel relied upon the decision in Minister for Justice Equality and Law Reform v. Kavanagh, an ex tempore decision of the Supreme Court of the 23 ^rd October, 2009, and referred to in Farrell and Hanrahan The European Arrest Warrant in Ireland (Clarus Press, 2011). In that case, the Supreme Court expressed the view that an EAW ought not to have been endorsed in the absence of an express reference to an underlying arrest warrant having been issued or to a judicial decision having the same affect as an arrest warrant. Counsel also referred to the case of Minister for Justice Equality and Law Reform v. Ostrowski (unreported, [2010] IEHC 200, 19 ^th March, 2010) where Peart J. considered that an EAW that contained incorrect details in relation to the underlying domestic warrant was fatally flawed even though the authorities in the issuing state had provided additional information explaining the error and providing the correct details in respect of the domestic warrant. In Ostrowski the domestic warrant on foot of which the EAW had been issued related to somebody else entirely. Counsel also referred to the case of Minister for Justice and Equality v. Horváth [2013] IEHC 534.

7 7. Counsel further relied upon the Minister for Justice and Equality v. Gherine [2012] IEHC 535. In that case, the obverse to the present situation existed. The warrant had been issued and was endorsed by the High Court as a warrant for the purposes of prosecution. Between the time of the endorsement and the subsequent execution of the warrant in this jurisdiction, it later transpired that the respondent had been convicted in Italy. The High Court (Edwards J.) at para. 13 held as follows:-

"The European arrest warrants in these cases were issued for the purposes of seeking the rendition of the respondents so that they might be prosecuted for the offences set out in those warrants. It now turns out that they are each both convicted and acquitted persons, and the fact that they have now been tried in the issuing state undermines this Court's ability to act on the warrants now before it. Even though the respondents are now convicted persons in respect of one of the offences covered by their respective warrants, the jurisdiction of the Court to surrender them is still undermined. A person cannot be surrendered for the purpose of serving a sentence in relation to an offence on foot of a warrant that seeks his or her rendition for the purpose of prosecuting him other for that offence."

8 8. Counsel for the Minister submitted that those judgments were not relevant. In particular, he referred to the Kavanagh case above and submitted that in fact what had been endorsed in that case was not an EAW but was another document entirely. He submitted in relation to Ostrowski that the domestic warrant had issued in respect of another person. He said that it was as if the warrant contained no information regarding the domestic warrant. He had been arrested on the basis of a warrant which was significantly defective. Counsel distinguished Horváth.

9 9. Counsel also relied upon the High Court decision in the case of S.M.R. v. The Governor of Cloverhill Prison [2009] IEHC 442. The facts of S.M.R. were that the Supreme Court had ordered the surrender of S.M.R. to the United Kingdom ("U.K.") thereby overturning the High Court's decision to refuse surrender. Subsequent to the decision of the Supreme Court, it became apparent that the domestic warrant in the U.K. had been withdrawn. An application for habeas corpus was brought by S.M.R..

10 10. In the course of thé Article 40 hearing in S.M.R.,...