MJELR -v- Dunkova, [2008] IEHC 156 (2008)

Docket Number:2007 133 EXT
Party Name:MJELR, Dunkova
Judge:Peart J.
 
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THE HIGH COURT Record Number: 2007 No. 133 Ext.

Between:

Minister for Justice, Equality and Law Reform

Applicantand

Vera Dunkova

Respondent

Judgment of Mr Justice Michael Peart delivered on the 30th day of May 2008:

The surrender of the respondent is sought by a judicial authority in the Czech Republic so that she can serve the balance of a sentence of imprisonment imposed upon her there on the 26th February 1996. An appeal against that sentence was disposed of on the 31st May 1996, and according to the warrant became effective and enforceable thereafter. I will address an issue arising from the postponement of the commencement of that sentence to 9th December 1998 at the respondent's request, when addressing the points of objection raised by the respondent on the present application for an order for surrender.

I am satisfied from the evidence adduced on this application that the respondent is the person in respect of whom this European arrest warrant has been issued. No issue to the contrary has been raised.

The trial and sentence of the respondent did not take place in absentia, and no undertaking under s. 45 of the Act arises.

I am satisfied that there is no reason under sections 21A, 22, 23 or 24 of the Act to refuse to make the order sought, and I am satisfied also, subject to addressing the points of objection raised herein, that her surrender is not prohibited by any provision in Part III of the Act or the Framework Decision.

Points of Objection:

1. Respondent not informed of right to consent to surrender under s. 15 of the Act:

The respondent has referred to the affidavit sworn by Sgt. Kirwan following his arrest of the respondent, and in which he states, inter alia, that following the arrest of the respondent on the 28th September 2007 he informed her that "under section 13 of the European Arrest Warrant Act she could consent to her early surrender to the requesting state….". It is argued on her behalf that he has thereby failed to comply with the provisions of s. 13 of the Act because the right to consent is a right under s. 15 of the Act and not under s. 13 of the Act. Factually it is correct to say that the right to consent to surrender is a right under s. 15 of the Act, but it is perfectly obvious that the affidavit simply contains an error as to the number of the section. What is clear is that she was told that she had the right to consent should we wish to do so. In addition, s. 13 of the Act requires the Court, when remanding the respondent to the hearing date, to again inform the respondent of her right to consent as well as of her right to the services of an interpreter, and to her right to be provided with legal advice and representation. The error in relation to the number of the section concerned has not deprived the respondent of any substantive right to which she is entitled on this application, and I am completely satisfied that the error in the affidavit is not such as to render her arrest unlawful or otherwise to require a refusal of the order sought for her surrender.

2. Respondent is not a person to whom s. 10 of the Act applies:

3. There is no conviction, sentence or detention order immediately enforceable against the respondent:These two points of objection can be taken together:

Section 10 of the Act provides:

10.-Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-

(a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates, or

(b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,

(c) who has been convicted of, but not yet sentenced in respect of, an offence to which the European arrest warrant relates, or

(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she-

(i) commenced serving that sentence, or(ii) completed serving that sentence,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state. (my emphasis)

It is paragraph (d) which is relevant, since the respondent is a person who was sentenced to a term of imprisonment before she left the Czech Republic, and the question arising is whether given the circumstances in which she left that country, she is a person who "fled".

It is necessary to set out those circumstances as evidenced from her own affidavit and the other documentation accompanying this application.

The offence for which she was convicted was committed on the 13th February 1995. Her trial took place on the 23rd May 1995 when she was found guilty. On the 26th February 1996 she was sentenced to a term of two years and six months' imprisonment, and having appealed that conviction and sentence, they were confirmed by order of the appeal court on the 31st May 1996. It would appear from her affidavit that she spent time in custody from a date in February 1995 until a date in June 1995 having applied for temporary release on the basis that she was pregnant and suffering from heart disease. It is presumably that period of time in custody which has resulted in the warrant indicating that of the sentence of two years and six months imposed on her there remains a period of two years, two months and twenty two days remaining to be served by her upon surrender.

She was never brought back to prison following her temporary release in June 1995. However, a letter dated 7th January 2008 from the District Court in Prague has stated that on the application of the respondent a "resolution" was made by the court on the 27th January 1998 whereby "it was decided to suspend the execution of imprisonment….. for a period until December 9, 1998, the resolution becoming legally valid on the March 3, 1998."

An important matter arising on this application is that under the law of the Czech Republic there is a limitation period of five years in relation to this sentence. A question arising for consideration in due course, but relevant also to this particular ground of objection is whether that limitation period expired on the 2nd March 2003 (being five years from the 3rd March 1998 when the resolution became valid) or on the 8th December 2003 (being five years from the end of the postponement period). The respondent submits that when she left the Czech Republic on the 17th July 2003, the sentence was unenforceable, as five years had passed since the 3rd March 1998, and accordingly she was free to leave and did not therefore "flee".

Another relevant fact is that in the month of June 1998, the respondent sought a pardon in respect of the offence. It appears that this application was forwarded to the Ministry of Justice on the 24th June 1998 for a decision, but no decision was made on that application before she left the country, or thereafter, even to the...

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