Minister for Justice and Equality v M.B

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 21 January 2020
• Neutral Citation: [2021] IEHC 50
• Docket Number: [2020 No. 226 EXT.]
• Court: High Court
• Date: 21 January 2020

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

M.B.

RESPONDENT

[2021] IEHC 50

Paul Burns

[2020 No. 226 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking an order for the surrender of the respondent to the Republic of Croatia pursuant to a European arrest warrant – Whether surrender was precluded by s. 45 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent to the Republic of Croatia pursuant to a European arrest warrant dated 30th July, 2020 (the EAW) issued by Judge Šakić, of the County Court in Zagreb, as the issuing judicial authority. The EAW sought the surrender of the respondent to execute a sentence of 3 years and 8 months’ imprisonment, of which 3 years, 1 month and 18 days remained to be served. The following points of objection were delivered dated 6th November, 2020: (i) surrender was precluded by s. 45 of the European Arrest Warrant Act 2003, as amended; and (ii) surrender was precluded because the relevant court order imposing sentence had not been served on the respondent as required under Croatian law.

Held by Burns J that, on foot of the documents which the respondent had placed before the Court, it had been unequivocally established that he was legally represented at both first instance and appeal; while he did not personally attend for the appeal, he had mandated a lawyer to represent him in respect of same and she had done so. Burns J held that, in such circumstances, it was clear that the requirements of s. 45 of the 2003 Act had been met in substance and, in particular, the requirements of table (d)3.2 had been met. Burns J was satisfied that the mischief which article 4a of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended, seeks to avoid did not arise in the context of this case and that the defence rights of the respondent were adequately safeguarded. Burns J dismissed the respondent’s objection based on s. 45 of the 2003 Act. Burns J was satisfied that the issue of whether the particular legal requirements under Croatian law had been met so as to render the sentence imposed enforceable in Croatia was essentially a matter for the domestic courts of Croatia. Burns J held that issues as to the particular provisions of Croatian law were more properly to be dealt with by the Croatian courts following surrender. Burns J dismissed the respondent’s objection to surrender based on Croatian law.

Burns J held that the Court would make an order pursuant to s. 16(1) of the 2003 Act for the surrender of the respondent to Croatia.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 21st day of January, 2021

1 By this application the applicant seeks an order for the surrender of the respondent to the Republic of Croatia (“Croatia”) pursuant to a European arrest warrant dated 30th July, 2020 (“the EAW”) issued by Judge Petar Šakić, of the County Court in Zagreb, as the issuing judicial authority. The EAW seeks the surrender of the respondent to execute a sentence of 3 years and 8 months' imprisonment, of which 3 years, 1 month and 18 days remain to be served.

2 The EAW was endorsed by the High Court on 29th September, 2020 and the respondent was arrested and brought before the High Court on 28th October, 2020.

3 I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. This was not put in issue by the respondent.

4 I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), are met. The sentence in respect of which surrender is sought is in excess of 4 months' imprisonment.

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 At part E of the EAW, it is indicated that the sentence imposed relates to four offences as follows:-

(1) an offence against marriage, family and children;

(2) an offence against personal freedom;

(3) an offence against sexual freedom;

(4) an offence against personal freedom.

The circumstances of each offence, including the extent of the respondent's involvement in same and the relevant statutory provisions, are set out in part E of the EAW. It is certified that the offences each carry a maximum penalty of at least 3 years' imprisonment and fall within 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”), with the relevant boxes are ticked for “kidnapping, illegal restraint and hostage-taking” and “rape”.

7 By virtue of s. 38(1)(b) 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 carries a maximum penalty of at least 3 years' imprisonment.

8 In summary, the offences in question consisted of assault, rape and false imprisonment. No issue was raised in respect of the invocation of the tick-box procedure or correspondence. I am satisfied that correspondence exists between the offences in the EAW and offences under the law of this State, including:

(1) assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 (“the Act of 1997”) and child cruelty contrary to s. 246 of the Children's Act, 2001;

(2) false imprisonment contrary to s. 15 of the Act of 1997;

(3) rape contrary...