Minister for Justice v Korte

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 14 December 2022
• Neutral Citation: [2022] IEHC 702
• Court: High Court
• Docket Number: Record No. 2022/126 EXT

Between

Minister for Justice

Applicant

and

Benjamin Korte

Respondent

[2022] IEHC 702

Record No. 2022/126 EXT

THE HIGH COURT

European arrest warrant – Consent – Article 2(7) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Applicant seeking consent for the enforcement of an additional sentence – Whether the request for consent had been made by the issuing judicial authority

Facts: The respondent, Mr Korte, on 10 December 2021, consented to surrender to Germany pursuant to a European arrest warrant that had issued on 31 August 2021 (the August EAW). An order for his surrender pursuant to s. 15 of the European Arrest Warrant Act 2003, as amended, was made by the High Court (Biggs J) and he was duly surrendered to Germany on 29 December 2021. On 10 December 2021, a further European arrest warrant (the December EAW) was issued by a different German Regional Court Judge. That warrant was stamped with the stamp of the Stolzenau court and it was signed by a Regional Court Judge, Judge Ek, as the issuing judicial authority. The December EAW stated that the respondent was wanted in Germany to serve an eight month sentence for a single offence of fraud contrary to s. 263(1) of the German Criminal Code, and a box was ticked for “swindling”, indicating that the German state had designated the offence of fraud as one within the meaning of Article 2(2) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (the Framework Decision). The written submissions of the applicant, the Minister for Justice, stated that on 9 May 2022, a request was received from the German authorities seeking “Mutual Legal Assistance” in respect of the December EAW. The submissions went on to say that a further request was sent on 8 June 2022 and the matter was listed before the High Court (Biggs J) on 27 June 2022. She held there was insufficient information before her as to the nature of the request. No order was made, but Biggs J confirmed that there was liberty to list the case once all relevant information was available. This was subsequently done. Biggs J was satisfied that consent was being sought pursuant to s. 22(7) of the 2003 Act and the application for consent was listed for 9 December 2022. The December EAW was sent to the Minister under cover of a letter dated 14 February 2022 from the German Public Prosecutor in which Prosecutor Khenkar explained that, as it had been transmitted to the Irish authorities too late, he was requesting approval of the extradition of the respondent in respect of the offence set out in the December EAW. A net issue was raised by the respondent as to whether the request for consent had in fact been made by the issuing judicial authority and it was not contested that such a request must emanate from the issuing judicial authority.

Held by Stack J that there was no evidence that a request for consent pursuant to Article 27(4) of the Framework Decision for the enforcement of an additional sentence had been made by or on behalf of the issuing judicial authority. Stack J held that there was no statement identifying that the public prosecutor who had purported to make the request was designated by the law of the issuing state as a judicial authority.

Stack J refused the request for consent.

Request refused.

JUDGMENT of Ms. Justice Stack delivered on the 14 ^th day of December, 2022 .

1 . On 10 December 2021, the respondent consented to surrender to Germany pursuant to a European Arrest Warrant that had issued on 31 August 2021 (“the August EAW”). An order for his surrender pursuant to s. 15 of the Europe Arrest Warrant Act, 2003, as amended, (“the 2003 Act”) was made by this Court (Biggs. J.) and he was duly surrendered to Germany on 29 December 2021, where I understand he is still in prison.

2 . On the same date, 10 December 2021, a further European Arrest Warrant (“the December EAW”) was issued by a different German Regional Court Judge. That warrant is stamped with the stamp of the Stolzenau court and it is signed by a Regional Court Judge, Judge Ek, as the issuing judicial authority. This signature is required by the form contained in the Annex to Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”), and by Article 8.1(b) of the Framework Decision which requires that a European arrest warrant shall state the name, address, telephone, fax numbers and e-mail address of the issuing judicial authority. The Warrant therefore clearly identifies the Regional Court Judge as the issuing judicial authority.

3 . The December EAW clearly states that the respondent is wanted in Germany to serve an eight month sentence for a single offence of fraud contrary to s. 263 (1) of the German Criminal Code, and a box is ticked for “ swindling”, indicating that the German state has designated the offence of fraud as one within the meaning of Article 2, para. 2 of the Framework Decision.

4 . No issue is taken by counsel for the respondent in the course of this application on the basis of any invalidity in the Warrant by reference to s. 38 or s. 45 of the 2003 Act, nor does there appear to be any such invalidity, and it appears that the December EAW would require the respondent to serve an eight month sentence in Germany.

5 . There is some confusion in the papers before me as to what happened after the issue of the December EAW and how it was transmitted to the Minister. The Minister's written submissions state that on 9 May 2022, a request was received from the German authorities seeking “Mutual Legal Assistance” in respect of the December EAW. The submissions go on to say that a further request was sent on 8 June 2022 and the matter was listed before this court (Biggs J.) on 27 June 2022. She held there was insufficient information before her as to the nature of the request. No order was made, but Biggs J. confirmed that there was liberty to list the case once all relevant information was available. This was subsequently done, Biggs J. was satisfied that consent was being sought pursuant to s. 22 (7) of the 2003 Act and the application for consent was listed for 9 December 2022.

6 . In fact, it seems clear that the December EAW was sent to the Minister under cover of a letter dated 14 February 2022 from the German Public Prosecutor in which Prosecutor Khenkar explained that, as it had been transmitted to the Irish authorities too late, he was requesting approval of the extradition of the respondent in respect of the offence set out in the December EAW, and he referred to Article 27 of the Framework Decision.

7 . Article 27, paragraph 4 of the Framework Decision, provides (in material part):

“A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. …”

8 . This is implemented in Irish law by s. 22 (7) of the 2003 Act, which provides:

“The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to — … (c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.”

9 . A net issue has been raised by the respondent as to whether the request for consent has in fact been made by the issuing judicial authority and it is not contested that such a request must emanate from the issuing judicial authority.

10 . “Judicial authority” is defined in s. 2 of the 2003 Act as “the judge, magistrate or other person authorised under the law of the Member State concerned to perform functions the same as or similar to those performed under section 33 by a court in the State”, which meant that the issuing State was at liberty to designate a person other than a judge to perform the functions of the issuing judicial authority and that had to be respected by this court.

11 . It is therefore possible for a public prosecutor, rather than a court or judge, to be designated under the law of a member state as the issuing judicial authority of that state for the purposes of the Framework Decision (provided of course the...