Minister for Justice and Equality v Tache
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 05 March 2020 |
| Neutral Citation | [2020] IEHC 130 |
| Docket Number | [2019 No. 265 EXT] |
| Court | High Court |
| Date | 05 March 2020 |
[2020] IEHC 130
Binchy J.
[2019 No. 265 EXT]
THE HIGH COURT
European arrest warrant – Surrender – Insufficiency of information – Applicant seeking an order for the surrender of the respondent pursuant to a European arrest warrant – Whether the European arrest warrant was in the form required by s. 11(1) of the European Arrest Warrant Act 2003, as amended and/or the Framework Decision
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Tache, to Germany pursuant to a European Arrest Warrant dated 24th June, 2019 (the EAW). The points of objection as pursued at the hearing of this application were as follows: (1) the EAW is not in the form required by s. 11(1) of the European Arrest Warrant Act 2003, as amended and/or the Framework Decision in that it does not adequately or correctly specify the number of offences that the respondent has allegedly committed and does not provide sufficient clarity and particulars as regards the time, place and degree of participation of the respondent in those offences; (2) the EAW is contradictory, in stating that the respondent is accused of 13 offences in one place, and 28 offences in another; (3) the EAW does not adequately identify the decision on which it is based, and is therefore invalid; (4) the EAW does not disclose that a decision has been made by the relevant authority in Germany to try the respondent for any of the alleged offences and his surrender is therefore prohibited pursuant to s. 21A of the 2003 Act; (5) the surrender of the respondent is prohibited by s. 37 of the 2003 Act because it is clear from the EAW that, if surrendered, the respondent will be remanded in custody with no right to bail; (6) the EAW is ambiguous in that Article 2(2) of the Framework Decision has been invoked insofar as the box relating to “swindling” has been ticked in Part E I of the EAW, and yet Part E II of the EAW is completed in relation to all categories of offences.
Held by Binchy J that: (1) and (2) the information provided met the requirements of both the Framework Decision and the 2003 Act and the additional information did not constitute a fundamental change of the EAW such as to require the Court to refuse this application; (3) this objection was not pursued at hearing; (4) there was no cogent evidence sufficient to displace the statutory presumption in s. 21A (2) of the 2003 Act; (5) there was no doubt at all that the respondent had an entitlement to appeal the arrest warrant, and in particular the remand in custody element thereof; and (6) each of the offences described in the EAW corresponded, in Ireland’s jurisdiction, to the offences relied upon by the applicant.
Binchy J held that the objections of the respondent must be rejected. Binchy J was satisfied that it was appropriate for the Court to make an order for the surrender of the respondent pursuant to s. 16 of the 2003 Act.
Surrender ordered.
By this application the applicant seeks an order for the surrender of the respondent to Germany pursuant to a European Arrest Warrant dated 24th June, 2019 (“the EAW”). The EAW was issued by the Krefeld local court as issuing judicial authority.
The EAW was endorsed by the High Court on 26th July, 2019. The respondent was arrested and brought before the Court on 25th September, 2019. The hearing of this application took place on 5th February, 2020.
At the opening of the application, I was satisfied that the person before the Court is the person in respect of whom the EAW was issued.
I was further satisfied that none of the matters referred to in ss. 22, 23 and 24 of the European Arrest Warrant Act 2003 (as amended) (“the Act of 2003”) arise, and that the surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.
At para. B of the EAW, it is stated that it is based upon an arrest warrant dated 4th April, 2017, which was also issued by the Krefeld local court. It is described as being a “custodial arrest warrant”.
At para. C of the EAW, it is stated that the maximum length of the custodial sentence or detention order which may be imposed for the offences to which the EAW refers is ten years. Accordingly, minimum gravity in respect of the offences with which the EAW is concerned is established.
It is apparent from the EAW that it has been issued for the purpose of prosecuting the respondent, and not for the purpose of requiring him to serve a sentence. At para. E of the EAW it is stated in the opening line that it relates to a total of 13 offences. A few lines further on in para. E it is stated that the accused is charged with a total of 28 offences. This is then broken down as follows:
(1) Thirteen counts of fraudulently acquiring cigarettes, food stuffs and gift cards from named companies, “for own use or profitable resale, at filling stations in Krefeld, Wetter, Mönchengladbach, Dormagen and Rüsselsheim jointly with a separately prosecuted person using a previously stolen or found EC card with PIN code to the bank account no. 202187977 with the bank Sparkasse Hagen held by the injured party Seifert, knowing that he was not authorised to use the EC card. In doing so, the accused caused damage in the amount of approximately 1,350.00 euros.”
(2) Secondly, ten counts of fraudulently acquiring clothing and other items with a total value of approximately €900, “for own use or profitable resale at Maxhütte, Borgwedel, Oldenburg, Osteinbek, Plochingen, Wuppertal and Hagen using his EC card to the bank account number 0127521300 with the bank Commerzbank, which did not have sufficient cover to honour the direct debits authorised by the accused”, and
(3) thirdly, the respondent is charged with five counts of using public transport at Hagen, Düsseldorf, Ennepetal, Duisburg and Dortmund, without being in possession of tickets.
It is apparent from the above that the offences were described in more general terms than is required. However, the central authority had previously requested details of each separate offence, and also requested clarification as to the apparently contradictory information within the EAW as to the number of offences. This information had been requested in the context of an earlier European arrest warrant (“the earlier EAW”) which had issued in respect of the same respondent and in respect of the same offences. The earlier EAW, which had to be withdrawn because it was issued by a public prosecutor, and, following upon the decision of the Court of Justice of the European Union in the cases of OG and PI on 27th May, 2019, the authorities in Germany restructured the arrangements for the issue of European arrest warrants with the result that the EAW in respect of which these proceedings are concerned was issued in replacement of the earlier EAW, by a court rather than by a prosecutor, but is otherwise identical. So, therefore, it is apparent that the additional information that was provided in connection with the earlier EAW is of equal application to the EAW.
That additional information confirmed that the respondent is being charged with 28 offences. There was also a different error in the earlier EAW which referred to nine offences (rather than thirteen), but this is of no consequence – what is of consequence is that clarification is given as to the number of offences with which it is intended to charge the respondent. Somewhat unusually, but very helpfully, the additional information in relation to each offence is provided in the form of a copy of the underlying arrest warrant of the Krefeld local court of 4th April, 2017. This provides a brief statement of each offence, including the date and time of day at which each offence was committed. The arrest warrant also provides detailed particulars of the statutory provisions creating the offences of which the respondent is accused.
Points of objection were filed on behalf of the respondent on 1st November, 2019. The points of objection as pursued at the hearing of this application are as follows:
(1) The EAW is not in the form required by s.11(1) of the European Arrest Warrant Act, 2003, as amended (the “Act of 2003”) and/or the Framework Decision in that it is does not adequately or correctly specify the number of offences that the respondent has allegedly committed and does not provide sufficient clarity and particulars as regards the time, place and degree of participation of the respondent in those offences.
(2) The EAW is contradictory, in stating that the respondent is accused of 13 offences in one place, and 28 offences in another. It is not open to the issuing judicial authority to clarify this by way of additional information, and a new European arrest warrant should have been issued in order to address such a fundamental change in the warrant.
(3) The EAW does not adequately identify the decision on which it is based, and is therefore invalid.
(4) The EAW does not disclose that a decision has been made by the relevant authority in Germany to try the respondent for any of the alleged offences and his surrender is therefore prohibited pursuant to s.21A of the Act of 2003.
(5) The surrender of the respondent is prohibited by s.37 of the Act of 2003 because it is clear from the EAW that, if surrendered, the respondent will be remanded in custody with no right to bail.
(6) The EAW is ambiguous in that Article 2(2) of the Framework Decision has been invoked insofar as the box relating to “swindling” has been ticked in Part E I of the EAW, and yet Part E II of the EAW is completed in relation to all categories of offences.
The respondent supported his objections through an affidavit of a German lawyer, a Dr. Holger Matt, to which I...
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