The Minister for Justice, Equality and Law Reform v Istvanne Ficzere

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date30 July 2008
Neutral Citation[2008] IEHC 271
CourtHigh Court
Docket Number[2005 No. 29 EXT]
Date30 July 2008

[2008] IEHC 271

THE HIGH COURT

Record Number: No. 29 Ext./2005
Min for Justice v Ficzere

Between:

Minister for Justice, Equality and Law Reform
Applicant

and

Istvanne Ficzere
Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.1

MIN FOR JUSTICE v GHEORGIE UNREP HIGH PEART 9.4.2008 2008 IEHC 115

MIN FOR JUSTICE v GOTSZLIK UNREP HIGH PEART 2.11.2007 2007/40/8343

GREALIS v DPP 2001 3 IR 144

EUROPEAN ARREST WARRANT ACT 2003 S12(2)

MIN FOR JUSTICE v DUNDON 2005 1 IR 261

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S73(A)

EUROPEAN ARREST WARRANT ACT 2003 S12(3A)

EUROPEAN ARREST WARRANT ACT 2003 S4A

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.1

EUROPEAN ARREST WARRANT ACT 2003 S12

EXTRADITION ACT 2003 S98 (UK)

EXTRADITION

European Arrest Warrant

Trial in absentia - Right to retrial or apply for retrial - Obligation on issuing judicial authority to provide undertakings - Whether undertakings received amounted to undertakings from judicial authority - Whether undertakings from central authority sufficient -Principle of mutual recognition - Whether mutual recognition applied to guarantees of central authority - Minister for Justice v Dundon [2005] IESC 13, [2005] 1 IR 261 distinguished; Minister for Justice v Tobin [2008] IESC 3 (Unrep, SC, 25/2/2008) considered - European Arrest Warrant Act 2003 (No 45), ss 2(2), 16 and 45 - Surrender refused (2005/29EXT - Peart J - 30/7/2008) [2008] IEHC 271

Minister for Justice, Equality and Law Reform v Ficzere

1

Mr Justice Michael Peartdelivered on the 30th day of July 2008:

2

The surrender of the respondent is sought by an issuing judicial authority in the Republic of Hungary under a European arrest warrant which issued there on the 28 th July 2001. Following its transmission to the Central Authority here it was endorsed for execution here by order of the High Court dated 5 th July 2005, and the respondent was duly arrested on foot of same on the 26 th January 2007 and brought before the High Court as required, and was remanded thereafter on bail to await the outcome of the present application for surrender under s. 16 of the European Arrest Warrant Act, 2003, as amended ("the Act").

3

Her surrender is sought so that she can serve a sentence of imprisonment of one year and ten months which was imposed in absentia on the 29 th April 2004, all of which sentence remains to be served by her. The offence for which she was so convicted and sentenced was an offence of swindling, and the issuing judicial authority has marked this offence in paragraph (e) of the warrant as being an offence within the categories of offence contained in Article 2.2 of the Framework Decision, and as such, is an offence in respect of which double criminality does not require to be verified. The sentence of one year and ten months imposed upon her satisfies the minimum gravity requirement in that regard, being one for more than four months.

4

No issue is raised by the respondent as to her identity, and the Court is satisfied in any event from the affidavit evidence of the arresting Garda officer, Sgt. Anthony Linehan, that she is the person in respect of whom this European arrest warrant has been issued.

5

One issue has been pursued by the respondent, namely in relation to the requirement for an undertaking pursuant to s.45 of the Act, given that the respondent was convicted and sentenced in her absence, and I will come to the factual basis put forward and the submissions made in that regard. I am satisfied that there is no reason to refuse to order surrender under sections 21A, 22, 23 and 24 of the Act, and subject to addressing the s. 45 issue, I am satisfied that her surrender is not prohibited by any provision in Part III of the Act, or the Framework Decision.

Background facts:
6

The offence for which the respondent was convicted was committed during 1998 and 1999 according to the facts contained in the warrant. The details of same do not need to be set forth, save to say perhaps that it would appear that the respondent committed same as an accomplice of her daughter and possibly others. The warrant at paragraph (d) under the heading "Decision rendered in absentia" states:

" Pursuant to Chapter XXIV of Act XIX on Criminal Procedure the decision was rendered in absentia, given that the defendant had not been summoned in person or otherwise informed of the date and place of hearing; however, the defendant has the following legal guarantees after surrender:"

7

Pursuant to Section 531, subsection (6) of Act XIX of 1998 in cases where the defendant's whereabouts becomes known after the passing of a valid judgment a retrial may be motioned on his/her behalf

8

Pursuant to Section 392, subsection (1), paragraph (e), subsection (1) of Act XIX of 1998, in the case of a validly adjudicated act (basic case) a retrial may be ordered if the judgment was passed in absentia, pursuant to Chapter XXIV of the cited Act." (my emphasis)

9

In her Points of Objection filed on the 19 th February 2007 the respondent raised a number of points including one under s. 10 of the Act on the basis that she had not "fled" from Hungary. That point is not being pursued any longer on this application, nevertheless the respondent swore an affidavit on the 8 th March 2007 in support of that point and other points, and I refer to some of those averments. The respondent stated that she was" never arrested or questioned in Hungary in respect of the alleged offence/offences set out in the European Arrest Warrant, the subject of the proceedings herein". She states also that she appeared before the Municipal Court of Kaposvar in Hungary on one occasion only, in July 2002. She goes on to state that on the 29 th April 2004 she was not present for her trial and was unaware that a trial was to take place on the 29 th April 2004, that being the date on which her conviction and sentence took effect, according to paragraph (b) of the warrant. She stated also that it was always her intention to plead not guilty, and further in paragraph (17) of her affidavit as follows:

" I say that, by proceeding to trial, conviction and sentence in my absence in circumstances where I was not informed or otherwise aware that the trial was to take place and, in the absence of an 'undertaking in writing' from the Hungarian authorities that, if extradited, I will be afforded the right to a retrial, I have been deprived of my right to 'fair procedures' and of the right to have a trial in due course of law......... ".

10

In the immediate aftermath of the arrest of the respondent on the 5 th July 2005, there was clearly correspondence between the Ministry of Justice in Hungary and the Central Authority here regarding the possibility that an undertaking under s. 45 of the Act might be forthcoming from the issuing judicial authority. By letter dated 8 th July 2005 a letter was received here from the Hungarian Ministry of Justice stating such an undertaking was not possible as the Hungarian " legal system does not provide for a legal ground for the issue of such an undertaking". It goes on:

" Your authorities should take into consideration that the legal system in Ireland is generally different from the legal system of Hungary. Moreover, we could not even consider which judge shall issue such an undertaking, because the judge sentencing [the respondent] is different from the judgehaving issued the European arrest warrant; and the judge proceeding during the possible future retrial will be also another, different one. However, the Ministry of Justice could provide for such an undertaking, if the signature of the Head of the Department for International Criminal law of the Ministry of Justice of the Republic of Hungary is accepted." (my emphasis)

11

A further letter dated 28 th July 2008 from the Ministry of Justice stating inter alia that the only way to submit an undertaking is via the Central Authority, encloses an undertaking signed by the Head of that Department, and that undertaking states that upon surrender the respondent " will (i) be retried upon her request for the offences named in the above European Arrest Warrant, or be given the opportunity of a retrial; (ii) be notified of the time when, and place at which the retrial will take place; and (iii) be permitted to be present at the trial."

12

The Central Authority here was also sent a copy of a letter dated 15 th October 2007 from the Somogny County Court to the Hungarian Ministry of Justice which states:

" ...... during the criminal proceedings she was defending her case at liberty but then moved to an unknown place where she remains as a fugitive. The judgment was delivered in the absence of the accused person, and the Court is totally unaware of any data regarding the timing, location and manner of her possible escape from the territory of the Republic of Hungary. Data confirming that she left the country emerged only after the final judgment was delivered."

13

Clearly if that is correct, the averments by the respondent in her affidavit that she was " never arrested or questioned in Hungary in respect of the alleged offence/offences set out in the European Arrest Warrant, the subject of the proceedings herein" would be open to question. That letter was exhibited in an affidavit sworn on the applicant's behalf by Anthony Doyle of the Extradition Section of the...

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