Minister for Justice and Equality v Zdenek Kaleja
| Jurisdiction | Ireland |
| Judge | Ms. Justice Caroline Biggs |
| Judgment Date | 17 January 2022 |
| Neutral Citation | [2022] IEHC 145 |
| Court | High Court |
| Docket Number | [2021 No. 312 EXT.] |
[2022] IEHC 145
[2021 No. 312 EXT.]
THE HIGH COURT
Surrender – Lack of clarity – Abuse of process – Applicant seeking an order pursuant to s. 22(7) of the European Arrest Warrant Act 2003 – Whether the European Arrest Warrant Act 2003 s. 22(7) letter of request amounted to an abuse of process
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order pursuant to s. 22(7) of the European Arrest Warrant Act 2003, as amended, seeking to disapply the rule of specialty. The letter of request, dated the 30th of September 2021, was issued by a Judge of the District Court in Plzeň-město, as the issuing judicial authority. The respondent, Mr Kaleja, was previously surrendered by the State to the Czech Republic for sentence in relation to various offences on foot of two European arrest warrants dated the 21st of September 2018 and the 12th of October 2018. The executing judicial authority that made those surrender orders was the High Court (Burns J). The letter of request sought to allow the issuing state, the Czech Republic, to serve a further sentence order on the respondent to enforce an additional five month sentence of imprisonment imposed upon the respondent on the 15th of October 2018.
Held by Biggs J that the 10-month sentence for which Mr Kaleja was surrendered in 2020/204 EXT was later extended to 15 months’ imprisonment due to the incorporation of an additional offence (i.e. the 16th of February 2018 driving-related offence). In the Court’s view, there was no ambiguity in relation to the s. 22(7) request, and the information required under the 2003 Act and the Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) had been furnished. Biggs J dismissed that ground of objection. She held that Mr Kaleja's objection based on s. 45 of the 2003 Act (which is in Part 3 of the 2003 Act and thus applies in this context, by virtue of s. 22(8) of the 2003 Act) must fail in circumstances where an unambiguous guaranteed right to an appeal was available, and the quality of that appeal was consistent with what is required by s. 45 of the 2003 Act; though Part D did not contain the time limits applicable, the letter from the issuing judicial authority indicated clearly that the respondent would have 8 days following surrender to lodge his appeal. The respondent accepted, and the Court agreed that his rights to be heard had been fully adhered to and the respondent indicated through the affidavit of his solicitor, Ms McGhee, that he was satisfied not to be produced before the High Court by way of video link for the purpose of a s. 22(7) hearing. Biggs J determined that there was an absence of any significant, much less egregious, delay in this matter. She determined that there was an absence of any evidence of any actual unfairness or prejudice to the respondent. She was satisfied that there was no clear cogent evidence sufficient to rebut the presumption in s. 4A of the 2003 Act. She held that the matters put by the respondent to the court did not go beyond the norm. In her view this was not a rare and exceptional case where surrender should be refused on the grounds of abuse of process. She dismissed the objection based on the assertion that the s. 22(7) letter of request amounted to an abuse of process.
Biggs J made an order pursuant to s. 22(7) of the 2003 Act.
Application granted.
JUDGMENT of Ms. Justice Caroline Biggs delivered on the 17th day of January, 2022
By this application, the applicant seeks an order pursuant to Section 22(7) of the European Arrest Warrant Act 2003, as amended, (“the Act of 2003”), seeking to disapply the rule of specialty. The letter of request, dated the 30th of September 2021, was issued by Mgr. Bc. Lenka Prýcová, Judge of the District Court in Plzeň-město, as the issuing judicial authority. The respondent is a person who was previously surrendered by this state to the Czech Republic for sentence in relation to various offences on foot of two European arrest warrants dated the 21st of September 2018 and the 12th of October 2018. The executing judicial authority that made these surrender orders was the High Court (Burns J.).
The letter of request seeks to allow the issuing state, the Czech Republic, to serve a further sentence order on the respondent to enforce an additional five month sentence of imprisonment imposed upon the respondent on the 15th day of October 2018.
I am satisfied that the person before the court, the respondent, is the person in respect of whom the letter of request was issued. No issue was raised in that regard.
I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.
I am satisfied that correspondence can be established between the offences referred to in the European arrest warrant (“the EAW”) and offences under the law of this State, that is offences contrary to Section 38 of the Road Traffic Act 2010, as amended.
The history of this case is complex. The respondent, Mr Kaleja, was the subject of three previous EAW proceedings:
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I. The first EAW proceedings, bearing record No. 2019/252 EXT, arose from an EAW dated the 22nd of November 2018. Binchy J. refused surrender in an ex tempore judgment on the 19th of November 2019, as the EAW in question purported to be one issued for prosecution, but related to a conviction and sentence which had already been imposed, although it had not become final as it had yet to be served on Mr Kaleja. In fact, that conviction was the same one to which the current request for consent under section 22 of the Act of 2003 relates, i.e. the judgment of the District Court in Plzeň-město of the 15th of October 2018, imposing a sentence of 15 months' imprisonment in respect of two driving-related offences, committed on the 16th of February 2018 and the 15th April 2018 respectively.
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II. The second and third EAW proceedings, bearing record Nos. 2020/204 EXT and 2020/205 EXT, were heard together, with Burns J. delivering separate judgments and ordering surrender in each set of proceedings on the 25th of March 2021. The more relevant proceedings to the current request is 2020/204 EXT, which related to an EAW dated the 12th of October 2018 issued in respect of a conviction by the District Court in Tachov of the 12th of July 2018, imposing a sentence of 10 months' imprisonment in respect of a driving-related offence committed on the 15th of April 2018, i.e. one of the two offences to which the current request for consent under section 22 relates. The respondent submits that there is an impermissible lack of clarity in relation to the number of offences for which he is sought.
The requirement for clarity under section 11 of the Act of 2003 has been considered in a number of cases:
In Minister for Justice & Equality v Herman [2015] IESC 49, the Supreme Court stated at para. 17;-
“17. At the core of this appeal is the issue of clarity; or the lack of it. It is essential when a court has before it a request in a European arrest warrant that there be clarity as to the offences for which surrender is sought, and as to any proposed sentencing.”
In Minister for Justice and Equality v Connolly [2014] IESC 34, [2014] 1 IR 720, Hardiman J. stated at paragraphs 30 and 31;-
“[30] This matter is of the greatest importance since the ability of the requesting State to put the respondent on trial is limited to the offences specified in the warrant. It is a mandatory requirement of the European arrest warrant procedure that there be unambiguous clarity about the number and nature of the offences for which the person sought is so sought. Presumably, the Spanish authorities know for how many offences they intend to put him on trial. I cannot understand why this has not been made clear. The relevance of this requirement, contained in s. 11 of the Act of 2003 is particularly clear in the present case because the objection was one to which s. 44 of the Act applies, and therefore one that requires a very specific knowledge of the precise Spanish offences for which delivery is sought. Minister for Justice v. Bailey [2012] IESC 16, [2012] 4 I.R. 1 emphasises the need to consider the issue of reciprocal offences which cannot be done without the specific knowledge of the Spanish offences referred to. This specific and unambiguous information is also required, as several citations above make clear, for the purpose of the implementation of the rule of specialty.
[31] I consider it to be an imperative duty of a court asked to order the compulsory delivery of a person for trial outside the State to ensure that it is affirmatively and unambiguously aware of the nature of the offences for which it is asked to have him forcibly delivered, and for which he may be tried abroad, and of the number of such offences. I would, therefore, dismiss the appeal and decline to make an order for the delivery of the respondent.”
In Minister for Justice, Equality and Law Reform v Desjatnikovs [2008] IESC 53, [2009] 1 IR 618, the Supreme Court indicated at para. 35;-
“[35] The fact that there is a precise description of the facts of the case is important, even though the issue of double criminality is not required to be considered. It is important that there be a good description of the facts. An arrested person is entitled to be informed of the reasons for his arrest and of any charge against him in plain language which he can understand. Also, in view of the specialty rule, the facts upon which a warrant is based should be clearly stated.”
In Minister for Justice and Equality v AW [2019] IEHC 251, Donnelly J. indicated at paragraphs 48 and...
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