The Minister for Justice v Josef Torac

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 11 October 2021
• Neutral Citation: [2021] IEHC 671
• Court: High Court
• Docket Number: [2021 No. 139 EXT]

Between

The Minister for Justice

Applicant

and

Josef Torac

Respondent

[2021] IEHC 671

[2021 No. 139 EXT]

THE HIGH COURT

European arrest warrant – Surrender – Defence rights – Applicant seeking an order for the surrender of the respondent to the Slovak Republic pursuant to a European arrest warrant – Whether the defence rights of the respondent had been breached

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr Torac, to the Slovak Republic pursuant to a European arrest warrant dated 27th December, 2018 (the EAW). The EAW was issued by Judge Bartalska, of the District Court of Bratislava, as the issuing judicial authority. The EAW sought the surrender of the respondent in order to enforce a sentence of three years’ imprisonment imposed upon the respondent on 18th December, 2017, all of which remained to be served. The respondent objected to surrender on the grounds that the sentence was passed in absentia and that the requirements of s. 45 of the European Arrest Warrant Act 2003, as amended, had not been met.

Held by Burns J that the issuing judicial authority had declined to furnish sufficient information which would allow the Court to come to a conclusion that the requirements of Article 4A of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended, or s. 45 of the 2003 Act had been met in substance. Burns J held that the applicant had failed to satisfy the Court that the defence rights of the respondent had not been breached; he was tried in absentia without any knowledge of the criminal proceedings in circumstances where lack of diligence on his part had not been established. Burns J was not satisfied that the entitlement of the respondent to an appeal or retrial was such as to adequately vindicate and give effect to his defence rights, particularly in circumstances where the issuing judicial authority had declined to indicate the timeframe within which the respondent would have to bring such an appeal or retrial and confirm that such time had not already expired.

Burns J held that surrender was precluded by reason of s. 45 of the 2003 Act. Burns J refused the application for an order for surrender of the respondent.

Application refused.

JUDGMENT of Mr. Justice Paul Burns delivered on the 11th day of October, 2021

1 By this application, the applicant seeks an order for the surrender of the respondent to the Slovak Republic pursuant to a European arrest warrant dated 27th December, 2018 (“the EAW”). The EAW was issued by Judge Suzana Bartalska, of the District Court of Bratislava, as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent in order to enforce a sentence of three years' imprisonment imposed upon the respondent on 18th December, 2017, all of which remains to be served.

3 The respondent was arrested on 25th May, 2021 on foot of a Schengen Information System II alert and brought before the High Court on 26th May, 2021.

4 The EAW was produced to the High Court on 4th June, 2021.

5 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

6 I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

7 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.

8 At part E of the EAW, it is indicated that it relates to one offence and the description of the circumstances in which the offence was committed and the degree of participation in same by the requested person is set out. The respondent was involved in the illegal crossing of several Indian nationals into the Slovak Republic and their subsequent transportation into Austria. Section 38(1)(b) of the Act of 2003 provides that it is not necessary for the applicant to establish correspondence between the offences to which the EAW relates and offences under the law of the State where the offences referred to in the EAW are offences to which Article 2.2 of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), applies and carry a maximum penalty in the issuing state of at least three years' imprisonment. In this instance, the issuing judicial authority has certified that the offences referred to in the EAW are offences to which Article 2.2 of the Framework Decision applies, that same are punishable by a maximum penalty of at least three years' imprisonment and has indicated the appropriate box for “facilitation of unauthorized entry and residence”. There is no manifest error or ambiguity in respect of the aforesaid certification such as would justify this Court in looking beyond same. Correspondence was not put in issue.

9 At part D of the EAW, it is indicated that the respondent did not personally participate in the proceedings leading to the decision. The issuing judicial authority has indicated at part D of the EAW that it is relying upon the equivalent of point 3.2. of the table set out at s. 45 of the Act of 2003. It is indicated at part D of the EAW:-

“3.2. the person concerned,...