Minister for Justice v Klier

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 27 November 2012
• Neutral Citation: [2012] IEHC 533
• Court: High Court
• Date: 27 November 2012

[2012] IEHC 533

THE HIGH COURT

[No. 222 EXT/2011]

Min for Justice v Klier

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

LADISLAV KLIER

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2 PARA 2

EUROPEAN ARREST WARRANT ACT 2003 S 38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2005 SI 27/2005

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EXTRADITION ACT 1965 PART II

EUROPEAN ARREST WARRANT ACT 2003 S3

EXTRADITION ACT 1965 S26

EXTRADITION ACT 1965 S29

AG v KLIER 2005 3 IR 447 2005/3/433 2005 IEHC 254

EUROPEAN ARREST WARRANT ACT 2003 S37

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

EEC DEC 192/2002

MIN FOR JUSTICE & EQUALITY UNREP EDWARDS 22.11.2012 2012/28/8115 2012 IEHC 508

CONSTITUTION ART 40

CONSTITUTION ART 3

CONSTITUTION ART 8

MIN FOR JUSTICE v TOBIN UNREP SUPREME 19.6.2012 2012 IESC 37

MIN FOR JUSTICE & ORS v MACHACZKA UNREP EDWARDS 12.10.2012 2012/27/7744 2012 IEHC 434

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EXTRADITION LAW

Practice and procedure

Surrender to Czech Republic - Points of objection - Previous seeking of surrender by issuing state - Previous refusal of surrender on basis that proceeding under old legislation incorrect - Issuing of fresh warrant - Delay - Alleged breach of constitutional rights - Failure to identify constitutional rights - Absence of substantive ruling in previous extradition proceedings - Absence of exceptional circumstances justifying non-surrender - Attorney General v Klier [2005] IEHC 254; [2005] 3 IR 447; Minister for Justice, Equality and Law Reform v Stapleton [2007] IESC 30, [2008] 1 IR 669; Minister for Justice and Equality v Staniak [2002] IEHC 133, (Unrep, Edwards J, 22/11/2012); Bolger v O'Toole (Unrep, SC, 2/12/2002); Minister for Justice, Equality and Law Reform v O'Fallúin [2010] IESC 37, (Unrep, SC, 19/5/2010); Minister for Justice, Equality and Law Reform v Koncis [2011] IESC 37, (Unrep SC, 29/7/2011) and Minister for Justice, Equality and Law Reform v Machaczka [2012] IEHC 434, (Unrep, Edwards J, 12/10/2012) considered - Minister for Justice, Equality and Law Reform v Tobin [2012] IESC 37, (Unrep, SC, 19/6/2012) distinguished - Surrender ordered (2011/222EXT - Edwards J - 27/11/2012) [2012] IEHC 533

Minister for Justice and Equality v Klier

Facts: The respondent was the subject of a European arrest warrant issued by the Czech Republic prior to that State joining the European Union. The issuing State had previously sought his surrender for the same matter in circumstances before the Czech Republic being designated by Ireland in 2005 as having under its national laws given effect to the Framework Decision, given effect in the European Arrest warrant Act 2003. The Attorney General had proceeded with extradition proceedings initiated by request in 2004 and the High Court had refused this request. The respondent argued that so much time had elapsed that it would be disproportionate and unfair to surrender him and in breach of s. 37 of the Act of 2003, as amended and also that he had settled in Ireland.

Held by Edwards J. that while the delay in forwarding the arrest warrant was most regrettable, it did not coupled with the circumstances of the case give rise to grounds for non-surrender. The respondent had not identified the rights threatened. The respondent had not established a breach of Convention rights or rights arising under the Constitution. The Court was not disposed towards upholding any objections raised by the respondent.

1 JUDGMENT of Mr Justice Edwards delivered on the 27th day of November, 2012

Introduction

2 The respondent is the subject of a European arrest warrant issued by the Czech Republic on the 4 ^th September, 2006. The warrant was endorsed by the High Court for execution in this jurisdiction on the 22 ^nd June, 2011 and it was duly executed on the 22 ^nd August, 2011. The respondent was arrested by Garda Stephen Dunne on that date, and then on the following morning he was brought before the High Court pursuant to s. 13 of the European Arrest Warrant Act, 2003 (hereinafter the "Act of 2003"). in the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court on the 3 ^rd October, 2012 for the purposes of a surrender hearing.

3 The respondent does not consent to his surrender to the Czech Republic. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied.

Uncontroversial s. 16 Issues

4 The Court has received an affidavit of Garda Stephen Dunne sworn on the 15 ^th March, 2011 and has received and scrutinised a true copy of the European arrest warrant in this case. It has also inspected the original European arrest warrant which is on the Court's file and which bears this Court's endorsement. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

5 The Court is satisfied following its consideration of these matters that:

6 (a) the European arrest warrant was endorsed for execution in this State in accordance with s. 13 of the 2003 Act;

7 (b) the warrant was duly executed;

8 (c) the person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

9 (d) the warrant is in the correct form;

10 (e) the warrant is a conviction type warrant and the respondent is wanted in the Czech Republic to serve a balance of 10 months imprisonment remaining to be served out of a sentence of 22 months imprisonment imposed upon him by the District Court of Plzen-North in respect of the single offence particularised in Part E of the warrant;

11 (f) Correspondence does not require to be demonstrated in respect of the offence particularised within Part E of the warrant, because (a) paragraph 2 of article 2 of Council Framework Decision J.H.A./584/2002 of 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L 190/1 18.7.2002 (hereinafter the "Framework Decision") has been invoked in respect of that offence by the ticking of the box in Part E. I of the warrant relating to Fraud (described in the English translation of the European arrest warrant in this case as "Frauds incl. deceits affecting concerns of European Communities in sense of the Treaty dated 26 ^th July 1995 on Protection of European Communities Financial Interests"); and (b) the offence in question attracts a penalty of three years imprisonment under the law of the issuing state, thereby satisfying the requirements of s. 38(l)(b) of the Act of 2003.

12 (g) No issue as to trial in absentia arises in the circumstances of this case and so no undertaking is required under s. 45 of the Act of 2003.

13 (h) There are no circumstances that would cause the Court to refuse to surrender the respondent under ss. 21 A, 22, 23 or 24 of the Act of 2003, as amended.

14 In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2005 ( S.I. No. 27 of 2005) (hereinafter the "2005 Designation Order"), and duly notes that by a combination of s. 3(1) of the Act of 2003, and article 2 of, and the schedule to, the 2005 Designation Order, "the Czech Republic" is designated for the purposes of the Act of 2003 as being a state that has under its national law given effect to the Framework Decision.

The Points of Objection

15 The respondent has filed a number of points of objection but in fact only one point of substance was proceeded with at the hearing. That objection may be summarised as follows:

16 The issuing state previously sought the surrender of this respondent for the same matter as is the subject of the present European arrest warrant in the following circumstances. On the 1 ^st January, 2004, the European Arrest Warrant Act, 2003 came into operation to give effect to the Framework Decision. The Czech Republic was not a member of the European Union at that time. On the 22 ^nd April, 2004. the Minister for Justice received a request from the Czech Republic pursuant to Part II of the Extradition Act. 1965 (hereinafter the "Act of 1965") seeking the extradition of the respondent for the purpose of serving the prison sentence to which the present European arrest warrant also relates. On the 1 ^st May, 2004, the Czech Republic became a member of the European Union, but it was not immediately designated by Ireland for the purposes of the Act of 2003 as being a state that has under its national law given effect to the Framework Decision. On the 25 ^th January, 2005, for the purposes of the Act of 2003, the Minister for Foreign Affairs, by order (contained in S.I. No. 27 of 2005 hereinbefore referred to), and pursuant to s. 3 of the Act of 2003, designated the Czech Republic as a member state that had under its national laws given...