Minister for Justice and Equality v Kutas
|Ms. Justice Donnelly
|29 March 2019
| IEHC 249
|29 March 2019
|[2016 No. 196 EXT] [2017 No. 341 EXT] [2017 No. 356 EXT]
 IEHC 249
[2016 No. 196 EXT]
[2017 No. 341 EXT]
[2017 No. 356 EXT]
THE HIGH COURT
European arrest warrants – Surrender – Assurances – Respondent objecting to his surrender in respect of European arrest warrants – Whether the respondent’s surrender was prohibited under the European Arrest Warrant Act 2003
Facts: The High Court (Donnelly J), on the 2nd November, 2018, gave an ex tempore judgment in respect of three European Arrest Warrants (EAWs). These were EAWs in proceedings 2016/196 EXT, 2017/341 EXT and 2017/356 EXT. In that judgment, Donnelly J rejected almost all the points of objection of the respondent, Mr Kutas, to his surrender in respect of each of the EAWs. In respect of two remaining issues, Donnelly J sought the following information from the issuing state: (a) in respect of all three EAWs, information and assurances concerning prison conditions in Hungary; and (b) in proceedings 2017/341 EXT, information as to the timeframe within which the respondent would have a right to claim a retrial.
Held by Donnelly J that the information that was contained in the additional documentation meant that the conditions set out in s. 45 of the European Arrest Warrant Act 2003 had been met. That information demonstrated that the respondent would have a possibility of a retrial/appeal in relation to the offences set out in the EAW in proceedings 2017/341 EXT, within one month of being served with the decision. Donnelly J held that, in all the circumstances of the case, there was no basis for the Court to reject the assurances that had been given as to conditions in the prisons in which the respondent would be held in Hungary and the assurances that his rights under Article 3 ECHR and Article 4 of the EU Charter would be respected. Donnelly J therefore rejected the respondent’s claim that his surrender was prohibited under s. 37 of the 2003 Act on the basis of a real risk that on surrender he would be exposed to inhumane or degrading treatment.
Donnelly J held that the respondent’s surrender was not prohibited under the provisions of s. 16 of the 2003 Act. Donnelly J held that she may make an order for his surrender to such other person as is duly authorized by the issuing state to receive him.
On the 2nd November, 2018, I gave an ex tempore judgment in respect of three European Arrest Warrants (‘EAW’). These were EAWs in proceedings 2016/196 EXT, 2017/341 EXT and 2017/356 EXT. In that judgment, I rejected almost all the respondent's points of objection to his surrender in respect of each of the European arrest warrants. In respect of two remaining issues, I sought the following information from the issuing state:
(a) in respect of all three EAWs, information and assurances concerning prison conditions in Hungary and,
(b) in proceedings 2017/341 EXT, information as to the timeframe within which the respondent will have a right to claim a retrial.
The EAW in proceedings 2017/341 EXT is dated 31 March, 2017. This EAW, was transmitted to this state by the central authority of Hungary, the Ministry of Justice. The letter of the central authority transmitting the EAW stated that the Ministry had ‘the honour to transmit the corrected version of the European Arrest Warrant Nr.1. Szv. 232/2017/4 of the Court of Justice Kecskemet issued against László Krisztián KUTAS (born in Pécs on 1 June 1980), furnished with translation.’ That EAW was endorsed on the 4th day of December, 2017.
In reply to the request for additional information on the length of time in which the respondent would have to claim his retrial, the Hungarian central authority sent to this jurisdiction, what was stated to be a ‘modified EAW’ of the Court of Justice Kecskemet issued against the respondent. This information was sent over by letter dated the 15th November, 2018. It was sent through the Ministry of Justice ‘acting as central authority’. The ‘modified EAW’ bore the same date of issue as the EAW that had been endorsed. It was signed by the same representative of the issuing judicial authority. In the English translation of the ‘modified EAW’, it did not appear to contain any new information in point (d) 3.4 in respect of the time within which to seek a retrial or an appeal.
At the hearing subsequent to the receipt of that information, counsel for the minister submitted that an informal translation of the original Hungarian document revealed that it contained at point (d) 3.4, a statement that the timeframe was indefinite. Objection was taken to the reliance on the informal translation by the respondent. Further information was sought by this Court from the issuing state, under s. 20 of the European Arrest Warrant Act of 2003 (‘the Act of 2003’) in respect of the information provided.
In a response dated the 28th February, 2019, the Ministry of Justice of Hungary, as central authority, sent over another ‘modified EAW’ from the issuing judicial authority. This document was again similar in form of the EAW which had been sent over originally. It had the same date and was signed by the same judicial representative. It had the added inclusion at point (d) 3.4 of the time limit of one month.
The information that is now contained in the additional documentation means that the conditions set out in s.45 of the Act of 2003 have been met. This information demonstrates that he will have a possibility of a retrial/appeal in relation to the offences set out in this EAW, within one month of being served with the decision. However, that does not dispose of the issues arising from the receipt of this ‘modified EAW’. An issue arose as to how this Court should treat this information by virtue of the form in which it had arrived.
After the first ‘modified EAW’ was transmitted, this Court held an oral hearing on the 6th December, 2018. Counsel for the respondent objected to the reception of that information given the form it which it was sent to this jurisdiction. She submitted that it was inappropriate that the Court would have to scrutinise what appeared on its face to be an EAW for the purpose of extracting information. She queried the concept of a modified European Arrest Warrant. There was some discussion between the Court and counsel which included reference to, but no detailed submissions on, previous case law in which the High Court had been asked to deal with amended or corrected European Arrest Warrants.
At the hearing after the second ‘modified EAW’ was received, the respondent stood over his earlier submissions on this matter. Having reserved judgment in respect of all the matters, the Court recalled the parties for submissions on the two, apparently most relevant, cases.
In the case of , the High Court (Donnelly J) ruled upon the validity of warrants that had been presented to the court for endorsement. These were identified as ‘corrected EAWs’ issued by a Polish judicial authority. Those EAWs had contained corrections inserted into the original warrant at a later date than the date of the original issuing of the warrant. They were inserted by a judge who had not issued the original warrant. The date of the EAW remained on its face the original date of issue. The High Court accepted those ‘corrected EAWs’ as valid EAWs from Poland. The Court held that the issue of whether the corrected versions of the EAWs were validly issued European arrest warrants under the Framework Decision, was one that was purely a matter for the Polish authorities.
At para. 49 of the judgment, the High Court stated:
‘The Court is satisfied of the following in respect of each of the first and second EAWs:
a) That it has been issued by a competent judicial authority,
b) That it purports to be an EAW from Poland,
c) That an explanation is given as to why the particular EAW is not signed by the original judge who has been indicated as the representative of the issuing judicial authority and as the signatory,
d) That an explanation has been given as to how the present EAW has come into existence, i.e. being a corrected version but the original judge is deceased.
e) That it is now signed by a representative of the issuing judicial authority who has the same role as that of the judge who is indicated as the representative of the issuing judicial authority.
f) That the fact that it is a corrected version of an EAW is also clear on its face.’
The High Court went on to hold that it was not helpful to consider what an Irish Court would have done in the same circumstances, nor to consider how an Irish court might ‘ correct’ or ‘ amend’ an ‘ incorrect original order or decision.’ The High Court had ‘ to focus on its role and function in the execution of EAWs as provided for by the Act of 2003 which implements the 2002 Framework Decision. Under the 2002 Framework Decision, it is recognised that the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which is the “cornerstone' of judicial cooperation. The mechanism of the European arrest warrant is based on a high level of confidence between member states. These principles of mutual recognition, mutual trust and a high level of confidence are reflected in s. 12(8) of the Act of 2003.’
At para. 57 of the judgment, the High Court held ‘ the Court is satisfied that there is nothing in the 2002 Framework Decision or in the Act of 2003 or s.11 of the Act of 2003 in particular that requires an issuing judicial authority to issue either, a fresh EAW or to provide additional documentation by other means in order to...
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