Minister for Justice and Equality v Hopjan

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 25 July 2017
• Neutral Citation: [2017] IEHC 564
• Court: High Court
• Docket Number: Record No. 2016 No. 98 EXT
• Date: 25 July 2017

[2017] IEHC 564

THE HIGH COURT

Donnelly J.

Record No. 2016 No. 98 EXT

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

RADOMIR HOPJAN

RESPONDENT

Extradition – European Arrest Warrant Act, 2003 – Art. 8 of the European Convention on Human Rights – Execution of European arrest warrant – Right to private life – Public interest

Facts: The applicant sought the surrender of the respondent/accused on foot of the execution of the European Arrest Warrant ('EAW') by the requesting state in order to serve the remaining sentence imposed upon the respondent for committing two fraud offences. The respondent argued that his surrender would breach his right to respect for his private life under art. 8 of the European Convention on Human Rights (ECHR) as there was a substantial unexplained delay in his prosecution by the issuing judicial authority of the requesting state.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court stated that public interest outweighed any private interest that was on the part of the accused and the delay had commenced by the respondent's intentional choice to leave the requesting state. The Court noted that even culpable delay would not dilute the public interest that lay in the surrender of the respondent as the respondent was required for the commission of serious fraud offences.

EX TEMPORE JUDGMENT of Ms. Justice Donnelly delivered the 25th day of July, 2017.

1 The respondent is sought pursuant to a European Arrest Warrant ('EAW') issued by a Czech judicial authority to serve the remaining 44 months of a four and a half year sentence imposed upon him in respect of two separate offences. Although a number of points of objection were raised by the respondent, by the time the matter came on for hearing, these objections had been boiled down to a single ground: that it would be a disproportionate interference with the respondent's right to respect for his private life under Article 8 of the European Convention on Human Rights ('ECHR') to surrender him.

A Member State that has given effect to the 2002 Framework Decision

2 The surrender provisions of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003') apply to those member states of the European Union ('E.U.') that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European Arrest Warrant and the surrender procedures between member states ('2002 Framework Decision'). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) Order 2005( S.I. No. 27/2005), the Minister for Foreign Affairs has designated the Czech Republic as a member state for the purposes of the Act of 2003.

Identity

3 I am satisfied on the basis of the affidavit of Oliver Nevin, member of An Garda Síochána, the affidavit of the respondent, and the details set out in the EAW, that the respondent, Radomir Hopjan, who appears before me, is the person in respect of whom the EAW has issued.

Endorsement

4 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Sections 21A, 22, 23 and 24 of the Act of 2003

5 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under the above provisions of the Act of 2003.

Part 3 of the Act of 2003

6 Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003 and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

Section 38 of the Act of 2003

7 The issuing judicial authority ticked the box of 'swindling' at point (e)1 of the European arrest warrant. In so doing, they gave an indication that they were relying on Article 2 para. 2 of the 2002 Framework Decision so that double criminality did not have to be established. The offences, which are set out in considerable detail in the EAW, concern issues of fraud. There is therefore no manifestly incorrect designation under point (e)1 of the European arrest warrant. The offences carry a maximum sentence in excess of the minimum required for an offence to come within Article 2 para. 2 of the 2002 Framework Decision. In the circumstances, surrender of the respondent is not prohibited by the provisions of s. 38 of the Act of 2003.

8 For the sake of completeness, the Court notes that the initial points of objection included objections based upon the fact that an aggregate sentence had been imposed on this respondent in respect of the two separate offences. By the time the aggregate sentence was imposed, the respondent had already served the sentence imposed in respect of one of the offences. The respondent raised points of objection about double jeopardy contrary to s. 41 of the Act of 2003 and a general abuse of process point. In light of the decision in Minister for Justice and Equality v. Stawera [2017] IEHC 420, the respondent did not persist with these points of objection. This Court is quite satisfied, for the reasons set out in Stawera, that there is no basis for refusing to surrender this respondent in the circumstances.

Section 45 of the Act of 2003

9 The EAW sets out that the respondent appeared in person at the trial of these offences. Following a request by the central authority, the issuing judicial authority addressed the presence of the respondent at each individual trial. I am quite satisfied from the information received that the respondent was personally present at the individual trials in relation to each matter, as well as at the appellate proceedings in relation to each matter. The respondent in his affidavit stated that he was not present at one of those trials but this was not pursued by him at the hearing of this application for his surrender and I am satisfied that his surrender is not prohibited by the provisions of s. 45 of the Act of 2003.

Section 37 of the Act of 2003

10 The respondent objected to his surrender on the basis that to surrender him would be a violation of his rights under Article 8 of the ECHR arising specifically from the fact that there has been considerable unexplained delay in this case. That delay arose in circumstances where a first EAW had been issued for this respondent in 2006. That EAW had only been transmitted to this jurisdiction in January 2013. What followed thereafter was a series of requests by the central authority which were answered to varying degrees by the issuing judicial authority. There seems to have been delays in responding and perhaps some delay in requesting various information.

11 Part of the queries arose because a new point (d) was required as the EAW had been issued...