Minister for Justice, Equality and Law Reform v Sulej and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 April 2007
• Neutral Citation: [2007] IEHC 132
• Docket Number: Record Number: No. 78 Ext./2006
• Court: High Court
• Date: 24 April 2007

MIN FOR JUSTICE v SULEJ & PUTA & SULEJ & PUTA v AG & MIN FOR JUSTICE

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Maros Sulej

Respondent

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Tomas Puta

Respondent

Between:

Maros Sulej

Plaintiff

And

The Attorney General, and The Minister for Justice, Equality and Law Reform

MIN FOR JUSTICE v SULEJ & PUTA & SULEJ & PUTA v AG & MIN FOR JUSTICE

Between:

Tomas Puta

Plaintiff

And

The Attorney General, and The Minister for Justice, Equality and Law Reform

[2007] IEHC 132

Record Number: No. 78 Ext./2006

Record Number: No. 79 Ext./2006

Record Number: No. 6123P/2006

Record Number: No. 6121P/2006

THE HIGH COURT

CRIMINAL LAW

Extradition

European arrest warrant

European arrest warrant - Constitutionality - Surrender - Order for surrender - Right to liberty - Right to bodily integrity - Right to life - Natural and constitutional justice - Fair procedures - Corruption - Requirement that person in respect of whom order for surrender made had to be committed to prison, without possibility of bail - Whether legislation constitutional - Whether measure proportionate - Whether respondents' safety and lives would be endangered if they were returned - Whether respondents would get fair trial if returned - Issue of warrant - Whether warrant duly issued - Rule of speciality - Whether surrender would breach rule of speciality - Whether legislation differed from that approved by Oireachtas - Whether changes in text gave rise to changes in substance - Minister for Justice v Iqbal [2007] IEHC 133 (Unrep, Peart J, 24/4/2007), Minister for Justice v Draisey [2006] IEHC 375 (Unrep, Peart J, 24/11/2006) and Minister for Justice v Butenas [2006] IEHC 378 (Unrep, Peart J, 24/11/2006) followed - European Arrest Warrant Act 2003 (No 45)- Orders for surrender made and constitutional challenges dismissed (2006/78EXT, 2006/79EXT, 2006/6123P, 2006/6121P - Peart J - 24/4/2007) [2007] IEHC 132

Minister for Justice v Sulej

The two respondents were sought to be surrendered to the Czech Republic each on foot of a separate European arrest warrant. The respondents contended inter alia that: their surrender would be contrary to Part III of the European Arrest Warrant Act 2003; would constitute a violation of their fundamental rights and freedom; they could not get a fair trial in the Czech Republic; and their surrender would amount to a breach of the ‘specialty’ provisions.

Held by Peart J. in ordering the respondents’ surrender that the Court was required to make the order which was sought in respect of each respondent under s. 16 of the European Arrest Warrant Act 2003.

Reporter: R.W.

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S14

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S4

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002

EUROPEAN ARREST WARRANT ACT 2003 S3

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S16(4)

MIN FOR JUSTICE v DRAISEY UNREP PEART 24.11.2006 2006 IEHC 375

MIN FOR JUSTICE v BUTENAS UNREP PEART 24.11.2006 2006 IEHC 378

EXTRADITION ACT 1965 PART II

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 S4(a)

EUROPEAN ARREST WARRANT ACT 2003 S22(3)

EUROPEAN ARREST WARRANT ACT 2003 S22(6)

EUROPEAN ARREST WARRANT ACT S22(7)

CONSTITUTION ART 29

MIN FOR JUSTICE v IQBAL & IQBAL v AG & MIN FOR JUSTICE UNREP PEART 24.4.2007 2007 IEHC 133

Judgment of

Mr Justice Michael Peart

1 These two applications for surrender can conveniently be dealt with together.

2 Each respondent is sought to be surrendered to the Czech Republic, each on foot of a separate European arrest warrant dated the 10^th July 2006. Each warrant was duly endorsed for execution by the High Court on the 14^th July 2006, and each respondent was arrested on the 25^th August 2006 and brought before the Court as required by s. 13 of the European Arrest Warrant Act, 2003 as amended ("the Act". They were remanded in custody pending the hearing of the present application under s. 16 of the Act.

3 No issue has been raised by either respondent as to their identity, and I am satisfied from the evidence given by way of affidavit by the arresting Garda officer, Thomas Malone, that each person before the Court is the person in respect of whom the respective European arrest warrant has been issued.

4 The offences for which each is sought are a combination of robbery offences and theft. I am satisfied that the acts set forth in respect of these offences in the warrants would if committed in this State be offences respectively of robbery under s.14 of the Criminal Justice (Theft and Fraud offences) Act,2001, and of theft under s.4 of the same Act. No issue has been raised by either respondent in relation to correspondence, and I am satisfied also the offences for which these respondents are sought satisfy the minimum gravity requirement under the Act.

5 These are not cases in which any prosecution or punishment has occurred in absentia, so no undertaking under s.45 of the Act is required.

6 Issues have been raised by each respondent in relation to the rule of specialty and sections 22 and 24 of the Act, and I will come to those issues.

7 In addition the respondents have raised issues in relation to fundamental rights under Part III of the Act, and I will deal with those also.

8 Subject to reaching conclusions on these issues, I am satisfied that the Court is required to make the order which is sought in respect of each respondent under s. 16 of the Act.

Points Of Objection relied upon:

1. The European arrest warrants have been "duly issued" in accordance with law and do not 'trigger' s.10 of the Act, the said purported issuing being in breach of the Constitution of the Czech Republic:

9 The basis for this objection is the fact that prior to the issue of the European arrest warrants in each case on the 10^th July 2006, the authorities in the Czech Republic had forwarded prior warrants, and that these could not be dealt with here given the then state of Czech law. It appears that as a result of representations made to the Czech authorities by the Central Authority here, the law was changed in the Czech Republic by the passing of Law Number 253/2006, effective from 1^st July 2006 in relation to the possibility to extradite Czech Nationals in respect of offences committed prior to 1^st January 2005.

10 The respondents submit that these warrants, which issued on the 10^th 2006 were not 'duly issued' for the purpose of s. 10 of the Act, since they were issued under a Czech Law which had been amended so as to retrospectively cover these respondents.

11 There is no merit in this point of objection. The amendment to the law was in respect of persons whose extradition may be soughtfrom the Czech Republic by another Member State, and not the reverse. In any event, this Court is entitled and required to presume that if the authorities in the Czech Republic have sent a European arrest warrant for execution here that it has done so in accordance with the laws of the Czech Republic. The fact that the respondents may have instituted a challenge in the Czech Republic to the constitutionality to the new law and that this proceeding has been accepted by the Constitutional Court is something which cannot interfere with the obligation of this State to operate the Council Framework Decision in relation to a state which the Minister has designated in accordance with s. 3 of the Act. It would be entirely inappropriate for this Court to refuse to order surrender only on the basis of allowing the respondents to remain here until such time as their constitutional challenge to the Czech legislation has been concluded. The fact is that warrants issued on the 10^th July 2006 were received here in August 2006. The Court can assume on the basis of the mutual trust and confidence between Member States referred to in the Recitals to the Framework Decision that these warrants have been duly issued, and having said that, I am satisfied that there is nothing appearing in the 'affidavits' from Czech lawyers on behalf of the respondents which established the contrary. Section 10 is 'triggered' - the phrase used by the respondents in their submissions.

2. The surrender of the respondents would be contrary to Part III of the Act, and in particular s. 37 thereof, constituting an unlawful deprivation of liberty:

12 The basis of this objection is that if an order of surrender is made s. 16 of the Act, it is a requirement under s. 16(4) of the Act that between the making of the order and the surrender taking place that the respondents are committed to prison without the possibility of bail. I have concluded that this is the meaning to be given to s. 16(4) of the Act, and I have concluded also that such an interpretation in accordance with the ordinary meaning of the words used in the section is not unconstitutional and is a proportionate response to the obligation of this State to ensure that persons whose surrender has been ordered are available to be surrendered when arrangements have been put in place (see judgments inMinister of Justice, Equality and Law Reform v. Draisey, unreported, High Court, 24^th November 2006 and Minister for Justice, Equality and Law Reform v. Butenas, High Court, unreported, December 2006). I have no reason to express a different view in the present cases, in spite of the able submissions to the contrary made in these cases by Kieran Kelly BL on these respondents' behalf on this point that, for example, in Part II cases under the Extradition Act, 1965, it is not a requirement following the making of an extradition order...