Minister for Justice and Equality v Lesko
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 11 April 2016 |
| Neutral Citation | [2016] IEHC 184 |
| Docket Number | 2013 No. 19 EXT 2014 No. 164 EXT 2014 No. 165 EXT 2015 No. 57 EXT |
| Court | High Court |
| Date | 11 April 2016 |
[2016] IEHC 184
HIGH COURT
Donnelly J.
2013 No. 19 EXT
2014 No. 164 EXT
2014 No. 165 EXT
2015 No. 57 EXT
Asylum, Immigration & Nationality – The European Arrest Warrant Act, 2003 – Extradition – 2002 Framework Decision – Ambiguities in warrant – Trial in absentia – Medical grounds – Ethnicity
Facts: The surrender of the respondent is sought by the requesting state pursuant to the execution of three European Arrest Warrants (‘EAWs’) for execution of sentences while the fourth EAW was issued for the prosecution purposes. In relation to the first EAW containing one composite sentence for committal of nine offences, the respondent contended that there was a lack of clarity as to whether the statement made by the issuing judicial authority for reduction in sentence would imply minimising the length of the sentence imposed or reduction in new sentence by virtue of period of imprisonment already undergone by the respondent in relation to one of the offences set out therein. The respondent contended that the second EAW was too fraught with uncertainty for accounting the said period of imprisonment along with the imprisonment imposed for committal of two offences. The respondent also alleged that since his trial had proceeded in his absence, his surrender was prohibited under s. 45 of the European Arrest Warrant Act, 2003. The respondent also objected to his surrender by virtue of his ethnicity, medical needs and alleged contravention of right to life and bodily integrity under s. 37 of the Act of 2003.
Ms. Justice Donnelly granted the surrender of the respondent in relation to the second, third and fourth EAW while refusing his surrender with respect to the first EAW. The Court held that a European Arrest Warrant must contain a clear and unambiguous description of the nature and number of offences for which a person was sought and if there had been a fundamental change as opposed to minor errors, a new EAW should be issued. The Court found that since there was a change in the nature of sentence itself in the first EAW rather than reduction in the length of sentence for the period of imprisonment already spent by the respondent, the surrender of the respondent was prohibited on that ground alone. The Court held that the mention of the period already spent by the respondent in the second EAW was for the purpose of affixing his liability and not otherwise, thus, it was perfect and valid. The Court observed that it was the presence at trial that was of significance under s. 45 of the Act of 2003 and that notification of the scheduled trial to the accused personally making him aware of the date and place of trial was sufficient compliance of the provisions of that section. The Court held that in the absence of specific complaints concerning ill-treatment by judicial or administrative authorities, subjective bias, past persecution, the respondent's contention concerning ethnicity could not be entertained even if there were reports of general societal prejudice against that race and community. The Court found that since the respondent was wanted for the committal of the 15 offences, the delay in his prosecution coupled with medical concern would not outweigh the public interest warranting a refusal of surrender while bringing that public interest to a moderate level.
The surrender of the respondent, pursuant to the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’), is sought by the Czech Republic in respect of four European Arrest Warrants (‘EAWs’). The Court is satisfied that the Minister for Foreign Affairs has, by the European Arrest Warrant Act 2003 (Designated Member States) Order 2005 ( S.I. No. 27 of 2005), designated the Czech Republic as a member state that has, under its national law, given effect to the Framework Decision of 13th June, 2002 on the European Arrest Warrant and surrender procedures between Member States (‘the 2002 Framework Decision’).
Surrender of the respondent is sought for the purpose of execution of sentences in respect of three of the EAWs (‘the first EAW’, ‘the second EAW’, and ‘the third EAW’). He is sought for the purpose of prosecution in respect of the final EAW (‘the fourth EAW’).
The respondent has specific objections in relation to each of the four EAWs. These will be addressed separately by reference to each individual EAW. The respondent raises a number of general objections to surrender which will be determined by the Court under the heading of the fourth EAW. These objections are:
a) That by virtue of his membership of the Roma community he has suffered, and would suffer on surrender, persecution, and his surrender would breach s. 37 of the Act of 2003. He claims he would be treated less favourably by virtue of membership of the Roma community in his prosecution for the offences under the fourth EAW or in any subsequent punishment.
b) The respondent has medical conditions that would make his any surrender a disproportionate interference with his right to bodily integrity under s. 37 of the Act of 2003.
The Court must be satisfied of each matter set out in s. 16(1) of the Act of 2003 before the surrender of the respondent can be ordered. Some of these matters are entirely uncontroversial and it is expedient to deal with them at this point.
Endorsement
I am satisfied that each EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.
Identity
I am satisfied based on the information in each EAW, the additional documentation and the affidavits of John Butler and James A. Kirwan, members of An Garda Síochána and the affidavit of the respondent that the respondent is the person in respect of whom each EAW has issued.
Sections 21A, 22, 23, and 24 of the Act of 2003
I am satisfied that I am not required to refuse the respondent's surrender on any of the four EAWs under sections 21A, 22, 23 or 24 of the Act of 2003.
The first EAW dated 14th February, 2012 was issued by the District Court in Ostrava, a competent judicial authority of the Czech Republic. The EAW sets out that the respondent was convicted in absentia by the enforceable judgment of the District Court in Ostrava on 1st June, 2010. The first EAW was endorsed on the 30th April, 2013, and the respondent was duly arrested on 27th November, 2013.
The first EAW states that the respondent is wanted to serve a sentence of 6 years and 6 months of imprisonment in respect of an enforceable judgment of Ostrava District Court from 1st June, 2010 (ref. 72 T 153/2005). The EAW recites that this is a cumulative sentence imposed in respect of 7 offences of burglary, robbery, theft and criminal damage committed in 2005 and 2006. Prior to the endorsement of the first EAW, a number of matters were clarified on foot of a request for additional information by the central authority. The issuing judicial authority clarified that contrary to the statement in the first EAW that it related to ‘7 offences’, the EAW in fact related to 9 offences, the details of which had been set out in the body of the first EAW. The EAW stated that the respondent was lawfully sentenced by the District Court in Ostrava under the file number 72 T 153/2005 in connection with the judgment of the Regional Court in Ostrava from 22nd February, 2011, file number 3To 618/2010 to ‘cumulative unconditional sentence of imprisonment in duration of 6 years and 6 months.’
The respondent raised the following points of objection to his surrender under the first EAW:
- Lack of clarity, in particular with respect to whether the sentence was partially imposed in respect of offences under case file numbers 7 T 146/2003 and 15 T 180/2002
- A s. 45 point regarding trial in absentia
- The respondent had already served an 18 month sentence in respect of case file number 72 T 153/2005
- One of the offences involving an allegation of robbery against a Mr. N. as described in case file number 72 T 153/2005 was withdrawn in the issuing state.
Part 3 of the Act of 2003
Apart from further considerations of s. 37, s. 38 and s. 45, I am satisfied that the respondent's surrender is not prohibited by any other section contained in Part 3 of the Act of 2003, as amended.
Section 38 - Correspondence / Minimum gravity
As regards the number of offences, the first EAW states at point (e) that it relates to 7 offences. It sets out five separate narratives regarding the circumstances in which the offences were committed. However, the additional information dated 13th December, 2012, states that the first EAW relates to 9 offences committed by 5 actions. This information explained in detail the offences which were committed under each of the narratives set out in the original EAW. It also explained why there had been a mistaken reference to 7 offences and not to 9 offences, i.e. that two of the described acts in turn each amounted to two offences but were accidentally counted as single offences instead of two offences. I am satisfied that this matter has been clarified and there is no ambiguity.
For correspondence purposes, therefore, there are 9 offences in total, 5 which were committed from 21st to 23rd April, 2005, and 4 which were committed on 7th and 8th January, 2006. Subject to the point of clarification as to how many offences were covered by the first EAW, there was no real issue in relation to...
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