Minister for Justice and Equality v Sevcik

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 11 November 2020
• Neutral Citation: [2020] IEHC 573
• Docket Number: RECORD NUMBER 2020/12 EXT
• Court: High Court
• Date: 11 November 2020

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

LADISLAV ŠEVČÍK

RESPONDENT

[2020] IEHC 573

Paul Burns

RECORD NUMBER 2020/12 EXT

THE HIGH COURT

European arrest warrant – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to the Czech Republic pursuant to a European arrest warrant – Whether surrender was prohibited due to a lack of correspondence between any offence under Irish law and the offence set out at part (e)2 of the European arrest warrant

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Ševčík, to the Czech Republic pursuant to a European arrest warrant dated 12th August, 2019 (the EAW). The EAW was issued by Judge Matúš of the District Court in Karlovy Vary as the issuing judicial authority. The EAW sought the surrender of the respondent to serve a sentence of 2 years’ imprisonment, imposed upon him on 10th January, 2019 in respect of drug trafficking offences and an offence of failing to enter prison to serve a sentence, of which the full 2 years remained to be served. On 14th May, 2020, the respondent delivered the following points of objection: (a) surrender is prohibited by reason of s. 38 of the European Arrest Warrant Act 2003, as amended, due to a lack of correspondence between any offence under Irish law and the offence set out at part (e)2 of the EAW, i.e. failing to enter prison to serve a sentence; and (b) surrender is prohibited by reason of s. 37 of the 2003 Act as it would be incompatible with the State’s obligations under the European Convention on Human Rights (the ECHR) and in particular would be in breach of the respondent’s fair trial rights under article 6 ECHR, as he had not been afforded the services of a lawyer in respect of his trial.

Held by Burns J that the Court found a lack of correspondence between offence II in the EAW and any offence under the law of the State. Burns J held that surrender in respect of offence II was therefore precluded by virtue of s. 38 of the 2003 Act. As the sentence in respect of which surrender was sought was an aggregate sentence in respect of both of the offences referred to in the EAW, and it was not possible to apportion the punishment imposed in respect of each offence, Burns J held that the Court could not order surrender in respect of one offence but not the other.

Burns J held that the Court would order refusal of surrender of the respondent.

Application refused.

Judgment of Mr. Justice Paul Burns delivered on the 11th day of November, 2020

1 In this application, the applicant seeks an order for the surrender of the respondent to the Czech Republic pursuant to a European arrest warrant dated 12th August, 2019 (“the EAW”). The EAW was issued by Judge Adrian Matúš of the District Court in Karlovy Vary as the issuing judicial authority. The EAW seeks the surrender of the respondent to serve a sentence of 2 years' imprisonment, imposed upon him on 10th January, 2019 in respect of drug trafficking offences and an offence of failing to enter prison to serve a sentence, of which the full 2 years remains to be served.

2 The EAW was endorsed by the High Court on 20th January, 2020 and the respondent was arrested and brought before the High Court on 10th March, 2020.

3 I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. No issue was raised in this respect.

4 I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act 2003, as amended (“the Act of 2003”), have been met. The respondent is sought to serve a term of imprisonment of 2 years.

5 I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the Act of 2003 arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

6 I am satisfied that the requirements of s. 45 of the Act of 2003 have been met and no issue was raised in this respect.

7 The respondent delivered points of objection dated 14th May, 2020 which may be summarised as follows:-

(a) surrender is prohibited by reason of s. 38 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), due to a lack of correspondence between any offence under Irish law and the offence set out at part (e)2 of the EAW, i.e. failing to enter prison to serve a sentence; and

(b) surrender is prohibited by reason of s. 37 of the Act of 2003 as it would be incompatible with the State's obligations under the European Convention on Human Rights (“the ECHR”) and in particular would be in breach of the respondent's fair trial rights under article 6 ECHR, as he had not been afforded the services of a lawyer in respect of his trial.

8 The respondent swore an affidavit herein dated 12th May, 2020 in which he averred that he had been convicted of the offences referred to in the EAW but that although he attended the trial of the matter, he was not represented by a solicitor as he was unable to afford one and was not informed of any right to have a legal representative appointed to act for him in the event that he could not afford same.

9 The Court sought additional information from the issuing judicial authority as to whether the sentence of two years which the respondent was required to serve was made up of two separate sentences or was a cumulative sentence. The request for additional information, dated 19th June, 2020, was worded as follows:-

“2.d. … is the sentence of 2 years a combined sentence for the two sets of offences or did he receive separate sentences for the drugs offence and the obstruction offence which cumulatively total 2 years? If there were two separate sentences, what was the sentence for each offence?”

In its letter of reply dated 1st July, 2020, the issuing judicial authority stated that the court had imposed on the respondent a cumulative sentence of 2 years' imprisonment, in respect of both offences set out in the EAW. It further indicated that in such circumstances, it is not possible to apportion the punishment imposed in respect of each offence. It was accepted by both parties that in line with the reasoning of the Supreme Court in Minister for Justice, Equality and Law Reform v. Ferenca [2008] IESC 52, [2008] 4 IR 480, in such circumstances it would not be possible to order the surrender of the respondent in respect of one offence but not the other. Thus, unless correspondence could be shown to exist between both of the offences in the EAW and offences under Irish law, surrender would have to be refused.

Correspondence

10 The EAW refers to two offences. The first of these offences consists of five separate instances of the unlawful sale or supply of drugs, viz. methamphetamine, in 2017, treated as one offence under the law of the Czech Republic. In respect of this offence, the issuing judicial authority certified at part (e) of the EAW that the offence was one to which article 2(2) of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), applied and was punishable by a custodial sentence or detention order of a maximum of at least 3 years' imprisonment. The appropriate box was ticked to indicate the offence was an offence of “illicit trafficking in narcotic drugs and psychotropic substances”. By virtue of s. 38 of the Act of 2003, it is not necessary for the applicant to show correspondence between an offence in the EAW and an offence under Irish law where the offence in the EAW is an offence to which article 2(2) of the Framework Decision applies and under the law of the issuing state, the offence is punishable by imprisonment for a maximum period of not less than 3 years. In this instance, the issuing judicial authority has certified that offence I is an offence to which article 2(2) applies and has indicated same by ticking the box at part (e) of the EAW as aforesaid. There is nothing in the EAW that gives rise to any ambiguity or perceived manifest error, such as would justify this Court in looking behind the certification in the EAW.

11 The second offence referred to in the EAW involves the failure of the respondent to enter prison to serve a sentence imposed upon him. At part (e) of the EAW, the circumstances of this offence are set out as follows:-

“II. During the period from 29 November 2017 (4 p.m.) to 4 December 2017 (10 a.m.) when he was detained in Ostrov, he failed to enter the Ostrov prison, district Karlovy Vary, nor elsewhere to start serving unconditional prison sentence in duration of 12 months, which had been imposed on him on the basis of the judgment of the District Court in Karlovy Vary of 12 October 2017, reference No.: 5 T 120/2017, and came into force on 8 November 2017, even though it is proven that he accepted in person as well as signed an order to start serving a prison sentence by 29 November 2017 at the latest, from 8 a.m. to 4 p.m. He acted in such a way in spite of having no severe health reasons, family reasons or social reasons would have prevented him from starting serving a prison sentence.”

12 The nature and legal classification of the offence and the applicable statutory provision/code is set out at part (e) of the EAW as follows:-

“II. Section 337

Obstructing the Execution of an Official Decision and Deportation

(1) A person who obstructs or substantially hinders the execution of a decision of a court or another public authority by

(…)

(h) failing to commence serving their prison sentence even upon court challenge without a substantial reason, or they otherwise prevent the commencement of the execution of such punishment without authorisation,

(…)

shall be punishable by a prison sentence of up to two years.”

13 By letter dated 19th June, 2020, the Court sought additional...