[2017] IEHC 421
THE HIGH COURT
Record No.’s: [2016 No. 218 EXT]
[2016 No. 219 EXT]
[2016 No. 149 EXT]
[2016 No. 154 EXT]
[2016 No. 220 EXT]
[2016 No. 221 EXT]
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
RESPONDENT
JUDGMENT of Ms. Justice Donnelly delivered the 8th day of May, 2017.
1. The surrender of the respondent is sought by the Czech Republic in respect of six separate European arrest warrants (“EAW”). There is a great deal of similarity within the EAWs with many of them cross-referencing details set out in the other European arrest warrants. The single contentious issue is whether the court may order surrender where it is claimed that the EAWs indicate that a suspended sentence is enforceable for another offence and will be applied if convicted after surrender. The respondent made this objection on the basis of s. 45 (trial in absentia) and s. 22 (rule against specialty) of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”).
Uncontroversial issues
A Member State that has given effect to the 2002 Framework Decision
2. The surrender provisions of the Act of 2003 apply to those member states of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States (“the 2002 Framework Decision”). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) Order 2005 (S.I. 27 of 2005), the Minister for Foreign Affairs has designated the Czech Republic as a member state for the purposes of the Act of 2003.
Identity
3. I am satisfied on the basis of the evidence of arrest given by Sergeant Jim Kirwan, member of An Garda Síochána, and the affidavit of arrest by Sergeant Michael Bracken, member of An Garda Síochána, and the details set out in each of the EAWs, that the respondent, Miroslav Sevcik, who appears before me, is the person in respect of whom each of the EAWs has issued.
Endorsement
4. I am satisfied that each of the EAWs has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.
Sections 21A, 23 and 24 of the Act of 2003
5. Having scrutinised the documentation before me, I am satisfied that I am not required to refuse his surrender on any of the EAWs under the above provisions of the Act of 2003.
Part 3 of the Act of 2003
6. Subject to further considerations of s. 38 and s. 45 of the Act of 2003, as amended, and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the Act of 2003.
The Provisions of Section 38 of the Act of 2003
7. The EAW in proceedings 2016/218 EXT is dated 2nd June, 2016 (“the first EAW”). In this first EAW, the respondent is sought for prosecution based on an arrest warrant issued by the District Court in Usti nad Labem on 2nd June, 2016. The domestic reference is 4 T 45/2015. However, there is a file reference of 4T 12/2015 stated at point (i) of the first European arrest warrant. That file reference number, 4T 12/2015, is stated to be the file reference number of the domestic proceedings in respect of the second EAW referred to below. In response to a request by this Court pursuant to s. 20 of the Act of 2003, the issuing judicial authority replied that this was a mistaken reference in the English translation of the European arrest warrant. The Court accepts this has clarified the position.
8. In the first EAW, it is indicated that the respondent is sought for a total of one offence and it sets out details of a single incident. The EAW states that he “pleaded guilty”. On request by the central authority, the issuing judicial authority confirmed that the reference to “pleaded guilty” in point (e) of the EAW was a mistake by the interpreter. The correct translation should have been “is accused” or “is charged”. However, the issuing judicial authority states in a later section, point (f), that the phrase “pleaded guilty” is used properly as “the accused confessed that he committed the acts he had been accused of”.
9. The offence alleged against the respondent is an offence that he appropriated zinc coated rain piping to the detriment of a company which was caused damage by breaking the immovable thing. At point (c) of the EAW, it is indicated that the maximum length of the custodial sentence or detention order which may be imposed is one of three years. In order to establish correspondence, it is necessary for the court to consider if these facts, if occurring in this jurisdiction, would amount to an offence. The facts alleged in the first EAW correspond with an offence of theft in this jurisdiction contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (“the Act of 2001”). This alleged offence also complies with the requirements of minimum gravity in that it is punishable in the issuing state by imprisonment or detention for a maximum period of not less than 12 months.
10. In all the circumstances, the respondent’s surrender on this EAW is not prohibited on the grounds of s. 38 of the Act of 2003 for this single offence of theft. There is reference to another offence for which he has previously received a suspended sentence (conditionally adjourned). This reference occurs in all six EAWs before the Court and this issue will be dealt with in the context of the decision on the contested issue in this case. Furthermore, in common with the third and fourth EAWs, there is also a reference to a second statutory provision, although the first EAW states that he is sought for a single offence. That issue will also be addressed later in this judgment.
11. The EAW in proceedings 2016/219 EXT was issued on 2nd June, 2016 (“the second EAW”). This second EAW relates to domestic proceedings 4T 12/2015 in which a domestic arrest warrant issued by the District Court in Usti nad Labem on 5th January 2016. Point (e) of the second EAW indicates that the respondent is being sought for a total of three offences. These are a similar type of alleged offences as above, namely allegations concerning the appropriation of metal parts from property belonging to another. I am satisfied that these allegations would, if proven in this jurisdiction, amount to the offence of theft contrary to s. 4 of the Act of 2001. They also carry penalties of three years imprisonment and the surrender of the respondent is therefore not prohibited under s. 38 of the Act of 2003. Again, as in all of these warrants, issues concerning references to another offence is also made in point (e) and the Court will address that later in this judgment. A further issue, concerning the reference in the second EAW to another offence for which the respondent has been convicted, will also be addressed later in this judgment.
12. In proceedings 2016/149 EXT, the EAW is also dated 2nd June, 2016 (“the third EAW”). The third EAW relates to domestic proceedings 4T 212/2014 in which a domestic warrant issued by the District Court in Usti nad Labem on 2nd June 2016. In the third EAW, the respondent is stated to be sought for prosecution for one offence as set out in point (e) of the European arrest warrant. Point (e) details how it is alleged that the respondent, together with others by prior agreement, misappropriated a mountain bike from the flat of an aggrieved party at a time when they knew that the owner of the mountain bike would not be present in his flat. The description of the alleged offence demonstrates correspondence to the offence of theft in this jurisdiction. Again, this is an offence in the Czech Republic which is punishable by a maximum custodial sentence of three years.
13. In those circumstances, his surrender on the third EAW is not prohibited by the provisions of s. 38 of the Act of 2003.
14. In proceedings 2016/154 EXT, the EAW is dated 3rd June, 2016 (“the fourth EAW”). This EAW relates to domestic proceedings 3 T 133/2014 in which an arrest warrant was issued by the District Court in Usti nad Labem on 3rd June, 2016. The respondent is sought for prosecution in respect of one offence in which it is alleged that he broke into a house in a chateau park for the purpose of appropriating movable assets. The description sets out how he appropriated a two-door metal safe having ransacked the property. At a minimum, the acts alleged correspond to an offence of theft in this jurisdiction. The maximum length of sentence that may be imposed is three years in respect of this offence. In the circumstances, the respondent’s surrender is not prohibited by the provisions of s. 38 of the Act of 2003.
15. In proceedings 2016/220 EXT, the EAW is dated 6th June, 2016 (“the fifth EAW”). The domestic warrant in this case is an arrest warrant issued by the District Court in Usti nad Labem on 6th January, 2016 with reference number 62 T 42/2015. Under the fifth EAW, the respondent is sought for prosecution for one alleged offence. It is an allegation that he broke into a house and appropriated zinc coated sheet metals therein to the detriment of a commercial company that owned the house. These acts at a minimum correspond to an act of theft within this jurisdiction. It is also punishable by a maximum sentence of three years imprisonment in the Czech Republic. In those circumstances, his surrender is not prohibited under the provisions of s. 38 of the Act of 2003.
16. The EAW in proceedings 2016/221 EXT is dated 3rd June, 2016 (“the sixth EAW”). Under the sixth EAW, the respondent is also sought for prosecution in respect of one offence. The arrest warrant was issued by the District Court in Usti nad Labem on 17th May, 2016 and the domestic record number is 3 T 128/2014. Once again, this is an allegation that the respondent appropriated angle iron from land causing damage to an aggrieved person. The acts alleged against him would, if committed in this jurisdiction, amount to an offence of theft. This is also punishable in the Czech Republic by a maximum sentence of three years. In the circumstances, his surrender is not prohibited under the provisions of s. 38 of the Act of 2003.
Point of objection
17. The point of objection concerning breaches of s. 45 and s. 22 of the Act of 2003 arises from the inclusion in these EAWs of references to offences that the respondent has previously committed in the Czech Republic. The relevant details set out in the first, third, fourth, fifth and sixth EAWs are quite similar, whereas the detail set out in the second EAW is similar in respect of one previous offence but also refers to another offence in quite different terms. In so far as is relevant, the details in the EAWs are set out in the following paragraphs.
18. In the first EAW, at point (e), immediately after the description of the alleged offence for which the respondent’s prosecution is sought, it is stated that “defendant M.S., by the above-described act committed a crime in spite of the fact that he was sentenced, by the Penal Order of the District Court in Usti nad Labem of 10th March 2014, Reference 27 T 28/2013-140, which became valid on 15th May 2014, for committing a Theft Offence under section 205 subs. F, letter a), letter b of the Penal Code, to a prison sentence for a period lasting twelve months, conditionally adjourned for a probation period lasting forty months with concurrent imposition of supervision.”.
19. Under the nature and legal classification of the offence and the applicable statutory provisions/code, it is stated that: “Defendant M.S., by committing the act described above appropriated a thing belonging to someone else (a stranger’s item) by taking possession of the thing and for such act he was sentenced during the course of the last three years and thus he committed a Theft Offence under section 205, subs. 2 of the Penal Code. Further, the Defendant by the act described above damaged a thing belonging to someone else and thus he caused damage which was not small (CZK 5,000.00 up to 500,000.00) to a stranger’s item, by means of which he committed an Offence of Damage of a Stranger’s Item under section 228 subs. 1 of the Penal Code.”.
20. Section 205 of the Penal Code, theft, is then set out, as is s. 228 of the Penal Code, damage to a stranger’s item. The relevant provisions of s. 205 of the Penal Code are set out later in this judgment. With respect to the s. 228(1) of the Penal Code, this provides for a one-year sentence.
21. In point (f) of the first EAW, it is stated that the EAW is also issued for defendant M.S. in connection with criminal proceedings of the District Court in Usti nad Labem under the following reference numbers:
4 T 2012/2014
4 T 45/2015 (this criminal matter)
4 T 12/2015
62 T 42/2015
3 T 133/2014
3 T 51/2016
27 T 28/2013.
22. The first six numbers are the numbers relating to the national arrest warrants issued in respect of each one of these six European arrest warrants. The final reference 27 T 28/2013 is the reference number referred to in point (e) of the first EAW relating to the offence for which he had previously been convicted but sentenced to the twelve months sentence which was conditionally adjourned for a probation period. The central authority wrote to the issuing judicial authority confirming that they had received six EAWs but requesting information about the EAW in respect of the file reference number 27 T 28/2013. By letter dated 25th November, 2016, the issuing judicial authority replied by confirming that the EAW with the reference 27 T 28/2013 has not been and will not be issued and stating that the central authority should not therefore expect delivery. That reply also stated that the EAWs had been issued by three different judges of the same court and that there had been previous individual communication. It was stated that this particular e-mail applied to all EAWs issued in respect of the respondent.
23. In the third EAW, at point (e), it is stated immediately after the description of the alleged offence for which the respondent’s prosecution is sought that: “[d]efendant M.S. caused the act in spite of the fact that he was sentenced, among other things, for a theft offence under section 205 subs. 1, letter a), letter b of the Penal Code for a prison sentence lasting twelve months, conditionally postponed for a probation period lasting forty months and the concurrent imposition of supervision.” No file number is mentioned on that EAW with respect to that earlier offence, but in virtually all other accounts, it is similar to the description as set out in the first European arrest warrant. In the third EAW at point (e) and under the reference to nature and legal classification of the offence, as well as the reference to the offence of theft contrary to s. 205 of the Penal Code, it is stated that “[f]urther, the Defendant by means of this above-described act, broke in another person’s dwelling in an unauthorized way and during that act he overcame an obstacle, the purpose of which was to prevent misappropriation of a thing and thus he committed a Violation of Domestic Freedom Offence under section 178 subs. 1, subs. 2 of the Penal Code as an accomplice under section 23 of the Penal Code.”. That section is set out and it appears that the respondent will be liable for that offence of a term of imprisonment of between six months to three years.
24. The fourth EAW is also virtually identical to the first and third EAW and this time it refers to the respondent committing the crime detailed in the EAW in spite of him having been lawfully convicted of committing another offence with the reference 27 T 28/2013 of 10th March, 2014. It is also similar to the fourth EAW as under the nature and legal classification of the offence, it states that by committing the act described above, he has also accomplished the elements of the offence of violating domestic freedoms under the section 178 subs. 1 subs. 2 of the Penal Code.
25. In the fifth EAW, there is another similar statement with regard to committing the offence in spite of having been lawfully convicted of committing the crime by the criminal order of the District Court in Usti nad Labem with reference 27 T 28/2013 of 10th March, 2014. Under the nature and legal classification of the offence and the applicable statutory provision/code, it is stated that he “by committing the above-described act, has appropriated a stranger’s item by taking possession of and he committed the offence by breaking in and has been previously punished for such an act in the last three years and thus he has committed a theft offence under section 205 subs. 1, letter b), subs. 2 of the Penal Code.”.
26. The sixth EAW is also similar to the first, third, fourth and fifth European arrest warrants. It states at point (e) that the respondent “was to commit the above-described act in spite of his having been lawfully sentenced, among other things also for a theft offence under section 205 subs. 1, letter a/ and letter b/ of the Penal Code, by the Criminal Order of the District Court in Usti nad Labem, Reference 27 T 28/213-140 of 10th March 2014.”. Again, the nature and legal classification of the offence states that the “[d]efendant M.S., by committing the above-described act, has appropriated a stranger’s item by taking possession of it and was punished for such an act in the last three years. By means of that act he has committed a theft offence under section 205 subs. 2 of the Penal Code.”.
27. With respect to each of the EAWs, s. 205 of the Penal Code, which is headed “theft”, states at subs. 2 that: “A person who appropriates a stranger’s item by taking possession of it, and they have previously been convicted or punished for such an act in the last three years, shall be punished by a prison sentence of six months to three years.”
28. The detail in the second EAW refers to file 27 T 28/2013 as well as to another domestic file reference 1 T 76/2013. At point (e), having described the three alleged offences for which the respondent is sought for prosecution, the following is stated:
“The act under Items 1) through to 3) were committed by the Defendant in spite of the fact that was sentenced by the Penal Order in Usti nad Labem of 10th March 2014, Reference 27 T 28/2013-140, which became valid on 15th May 2014, among other things for committing a Theft Offence under section 205, subs. 1, letter a), letter b) of the Penal Code, to a conditional prison sentence lasting twelve months, adjourned for a probation period of forty months with concurrent imposition of supervision.
In the case that the Defendant is pleaded guilty of committing acts under Item 1) through to Item 3), it will be decided at the same time on imposing a cumulative punishment including a punishment for the act committed before the acts referred to under Items a) through to 3), for which he has been sentenced by the final judgment of the District Court in Usti nad Labem of 13th January 2015, Reference 1 T 76/2013-125, which came into effect on 22nd July 2014. Therefore it is necessary to decide as well on issuing a judgment for the following act in the matter, i.e. the one under reference 1 T 76/2013:
In this criminal matter, Defendant M.S. by acting together with E.P. and L.L., in the period of time around 0.20am on 18th June, 2013, in Usti nad Labem at the parking place between two streets – V. Oblouku and Nestemicka – prised open the lid of the fuel tank of a motor vehicle Renault Laguna, plate number 7U0 4205. Subsequently they wanted to withdraw oil by means of a rubber hose and a fuel canister, which they did not succeed to do due to technical reasons. The defendant and accomplices were subsequently arrested by the police guard (guard of the Police of the Czech Republic). Nevertheless they caused damage amounting to CZK 1,350.00 to the aggrieved person, F.C.B., by damaging the vehicle. The defendant committed the above-described crime in spite of the fact that he had been sentenced by the Penal Order of the District Court in Usti nad Labem of 10th March 2014, Reference 27 T 28/2013, which became valid on 26th March 2013 (sic), among other things, for a theft offence under section 205, subs. 1, letter a) of the Penal Code.”
29. In the second EAW, the nature and legal classification of the offences and applicable statutory provision/codes states that :
“Defendant M.S., by committing the acts under Items 1) to 3) appropriated a thing belonging to someone else (a stranger’s thing) in spite of the fact that he had been sentenced for such act in the last three years, and thus in all three cases he committed a theft offence under section 205 subs. 2 of the Penal Code.
Defendant M.S., by committing an act in the matter under Reference No. 27 T 28/2013, i,e, a joint act of three persons, he committed an act that was directly focused on misappropriation of a stranger’s thing by taking possession of it, and he committed the act by breaking in (overcoming by force and obstacle preventing somebody from misappropriating a thing) and had already been punished for such act during the course of the last three years. He committed the crime with the intention to complete it although the act had not been completed. By acting liking that he committed a theft offence under section 205 subs. 1 letter b), subs. 2 of the Penal Code at the stage of an attempt under section 21 subs. 1 of the Penal code.”
30. In the second EAW, s. 43 of the Penal Code is also included. Section 43 of the penal code is headed “Cumulative and Multiple Punishments”. Section 43 ss. 2 states that “[t]he court shall impose a multiple punishment subject to the principles set out under Subsection 1 where it convicts an offender for a criminal offence committed before the court in the first instance convicted the offender for another criminal offence”. Subsection 3 of s. 43 is underlined and it is clear that it is this part of s. 43 that the issuing judicial authority is highlighting in respect of the offences in the second European arrest warrant.
31. Section 43 subsection 3 of the Penal Code states that:
“[t]he convicting judgment under the provisions Subsection 2 shall also include such court judgments whereby, subject to the conditions under Section 48, Subsection 1 there is a conditional waiver of a punishment with supervision. Along with the imposition of a multiple punishment, the court shall revoke its verdict of a conditional waiver of a punishment with supervision, as well as all decisions substantively connected with the verdict if, due to the change that has occurred as a result of such revocation, they have lost their basis.”
32. It is of some note that the judge of the issuing judicial authority who issued the second EAW is the same judge who issued the first EAW and the third European arrest warrant. The first and third EAWs, which were issued on the same date as the second EAW, do not contain this particular statement. It is apparent from the face of the second EAW that the alleged offences one to three were committed prior to the coming into effect of the judgment for the offence committed on 18th June, 2013.
33. The central authority sent a letter dated 15th July, 2016 seeking a number of clarifications in respect of the second EAW and the first European arrest warrant. The following information with respect to the second EAW was requested:
“(i) Section (e) indicates the warrant relates to one offence (consisting of one act of theft and one act of damaged property).
- Please explain why it is said to relate to one offence and not two offences as described?
(ii) Section f refers to further criminal proceedings that are not referred to in this warrant (4 T 45/2012) or warrant No. 2 (4 T 12/2015).
Please confirm that the rule of specialty will apply and that the requested individual will not be proceeded or detained in respect of any offence other than the offence in the warrant if surrendered unless prior consent is obtained from the High court or unless he is surrendered for the other offence on foot of another EAW at the same time.”
34. In relation to the first EAW, the following questions were asked:
“(i) Section (d) has not been completed as the requested individual has yet to be prosecuted for the offences described in the warrant.
However, it appears that cumulative sentence which will include the sentence under 27 T 28/2013/140 will be imposed in the event of his surrender.
- Please complete the table D for Framework Decision 2009/299/JHA to indicate the circumstances of the trial leading to the sentence imposed under 27 T 28/2013/140.
(ii) Section f. refers to further criminal proceedings that are not referred to in the warrant.
- Please confirm that the rule of specialty will apply and that the requested individual will not be proceeded or detained in respect of any offence other than the offence in the warrant if surrendered unless prior consent is obtained from the High court (sic) or unless he is surrendered for the other offence on foot of another EAW at the same time.”
35. In respect of the second EAW, the issuing judicial authority replied:
“i. This European Arrest Warrant is issued for the criminal proceeding conducted by court under Reference 4 T 12/2015, which means that it is issued for 3 acts legally qualified as larceny (theft), described in section e) ad (sic) 1 through to 3). Provided that the defendant has been sentenced for those acts (in the matter of 4 T 12/2015) the court has to decide as well on the punishment imposed for the act committed before the acts resolved in the matter of 4 T 12/2015, for which the defendant had already been sentenced lawfully by the Judgment of the District Court in Usti nad Labem of 13th January 2015, Reference 1 T 76/2013-125. Thus judgment came into effect on 13th January 2015, it was issued in the presence of the defendant and was also served to his own hands against his signature. This procedure has been ordered to the court by the provision of section 43 of the Criminal Code on imposing the cumulative sentence (multiple punishment), which is quoted in the matter under section e) of the Arrest Warrant.
ii. Section f) contains an informative list of the proceedings, i.e. of various criminal proceedings conducted with Defendant M.S., in which European Arrest Warrants are issued in relation to this person. This list of criminal proceedings has been included in the Arrest Warrant so that it can be decided about the defendant’s extradition, as far as possible, in one extradition proceeding for all criminal proceedings conducted against the defendant, or so that these proceedings can be continued after the extradition of the defendant in compliance with the principle of specialty.
In connection with this question I have to answer that the European Arrest Warrant has already been issued for the defendant in the following matters kept under the following reference numbers [each of the six EAWs are then referred]. In the matter under Reference 27 T 28/2013, a European Arrest Warrant has not been issued so far as the condition for its issue have not been fulfilled yet.
36. In respect of the first EAW, the issuing judicial authority replied:
“i. The European Arrest Warrant of 2nd June 2016, Reference 4 T 45/2015, is issued in this case only for the defendant’s act committed in the period of time from 8am on 10th December 2014 until 8am on 17th December 2014 (described in section e) of the Arrest Warrant). In this criminal proceeding only an accusation was raised against the defendant (i.e. a proposal for punishment has been filed). Therefore the defendant has not been sentenced so far and its extradition is demanded for the pending criminal proceeding, i.e. the proceeding under Reference No. 4 T 45/2015. For that reason section d) is not filled in (i.e. the decision has not been issued so far).
However, in this criminal matter the defendant is accused of the committing of “recidivist theft” (correctly only “theft”) under section 205 subs. 2 of the Criminal Code (described in section e). A person commits this offence provided that, simply said, he/she commits a common criminal offence, a theft offence and had been punished for such act in the last three years before she committed that act. The defendant had been punished for a theft offence in his three-year term in the criminal matter under Reference No. 27 T 28/2013, by means of which he was to accomplish elements of a recidivist theft offence. Thus the sentence for the offence of theft under Reference No. 27 T 28/2013 is referred to in section e) as sign of merits of the case (a fact of the case) of which the defendant is indicted and criminally prosecuted, but for another act for which the surrender of the defendant has been requested.
ii. In this place, allow me to refer to item ii above, since this is the case of the same accusation. Further, allow me to assure you that in the case of the criminal proceedings conducted against Defendant M.S. all his process rights are respected and the proceeding is conducted in compliance with the principles of both European and Czech criminal law, including the principle of specialty in relation to the extensive ongoing proceeding focused on the Defendant’s extradition. Besides, it is in particular the respect to the principle of ‘specialty’ and other rules of the European Extradition proceeding that has made this court to commence the extensive extradition proceeding in relation to the defendant, since this is required by the effort by his timely extradition within, if possible, only one extradition procedure for all the acts of which he is accused in the Czech Republic, so that they can be decided in compliance with the principle of specialty and the Czech legal order as soon as possible.”
Submissions of the parties
37. Counsel for the respondent referred to the contents of the six EAWs as set out above as well as to the additional information. He submitted that the indication in the EAWs was that the suspended sentence will be revoked and combined with the sentences on the offences set out in the other EAWs should the respondent be convicted on all or any of them. Counsel for the respondent suggested that the central authority had identified the issues at the outset, but continuous request for a completed point (d) (i.e. a completed Table dealing with trial in absentia as required under s. 45 of the Act of 2003) had been sought but had not been complied with. Counsel submitted that if the respondent was surrendered, he would be subjected to sentencing for an offence for which he had not been surrendered.
38. Counsel submitted that it did not make any difference which warrant was concerned, as, in his submission, the respondent was liable for punishment under the offence at 27 T 28/2013 in respect of all of the matters. If the Czech authorities had sought the respondent’s surrender for that offence as had initially been indicated in point (f) of the EAWs, counsel suggested his argument would be weakened. Counsel submitted that where the respondent is in fact at risk of being sentenced for an offence for which he has already been tried and convicted, there is a breach of s. 45 of the Act of 2003 because no Table has been completed and there is also a risk of a breach of s. 22 of the Act of 2003 as the indication is that he will be sentenced in respect of these matters.
39. Counsel for the minister submitted that there was no breach of specialty in these cases. In his submission, what was occurring was that the respondent’s potential for imprisonment in respect of the alleged offences was affected by the fact that he had been convicted of an offence of theft within a previous particular time frame. He was in essence a recidivist and liable to a higher punishment under Czech law.
Section 20 of the Act of 2003
40. At the conclusion of the hearing of this case, the Court decided to request further information with regard to the issues that had arisen. At that point, the Court had an initial view that the principle of specialty had been observed in relation to the offence contained in file reference 27 T 28/2013. This was because it was referred to in a particular context in five out of the six EAWs (without the actual reference to the file in one of them). This was in a context where it was clear that the respondent was being prosecuted for an offence of theft, the penalty for which was affected by virtue of the fact that he had a previous conviction. The other offence appeared to be somewhat different as the second EAW was drafted differently and the reply had made a particular statement about the cumulative offence.
41. The central authority sent a letter dated 10th February, 2017 on behalf of the High Court, asking for the following information:
“It is the High Court’s understanding that the assurances given in the letter of 4 October 2016 that the principle of specialty will be observed related only to the offence contained in file Reference 27 T 28/2013 (copy attached).
In regard to warrant 4T 12/2015 issued on 2 June 2016 in the reference therein at paragraph (e) to the final judgment of the District Court in Usti nad Labem of 13th January 2015 Reference IT 76/2013-125 please confirm that Mr. Sevcik will not be proceeded against, sentenced, or detained for the purpose of executing a sentence or detention order, or otherwise restricted in his personal liberty in respect of the offence.
In other words, please provide assurance that the principle of Specialty will be observed in respect of the offence Reference IT 76/2013-125.”
42. By letter dated 13th February, 2017, the issuing judicial authority replied as follows:
“I hereby reply to your letter from February 10, 2017 concerning Miroslav Sevcik. In this letter you demand to provide assurance that the principle of Specialty in the above mentioned case will be observed in respect of the offence committed by the defendant Reference 1 T 76/2013.
I am afraid that there is a little misunderstanding between us in this matter because even for the offence Reference 1 T 76/2013 we demand extradition of the defendant based on the European Arrest Warrant dated 02/06/2016 - ref. 4 T 12/2015.
We tried to explain the situation both in the EAW itself (section e/) and in our letter from October 4, 2016 (para. i/).
The defendant was sentenced for the offence Reference 1 T 76/2013 on January 13, 2015. This judgment came into force the same day – January 13, 2015. Considering the fact that the defendant committed offences reference 4 T 12/2015 the court in the case Reference 4 T 12/2015 imposed on August 17, 2015 the cumulative punishment (Section 43 Subsection 2 of Penal Code). In the judgment of the case Reference 4 T 12/2015 the court, bearing in mind the situation described above, quashed the verdict of punishment of the judgment rendered in the case Reference 1 T 76/2013 and for the offences both in the case Reference 1 T 76/2013 and in the case 4 T 12/2015 imposed the cumulative punishment. The original verdict of guilty (for the offence in the case Reference 1 T 76/2013) remains in force. The extradition of the defendant is therefore demanded both for the offence in the case Reference 1 T 76/2013 and for offences in the case Reference 4 T 12/2015, because in the case Reference 4 T 12/2015 a new (cumulative) punishment has been imposed both for offence in the case Reference 1 T 76/2013 and for offences in the case Reference 4 T 12/2015.” (emphasis in original).
43. While recognising that there may be translation issues with regard to the phraseology used, the Court views it as unfortunate that language such as “we demand extradition” has been resorted to by the issuing judicial authority in the additional information. While Article 1, para. 1 of the 2002 Framework Decision states: “The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person…”, para. 2 of Article 1 states that “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.” (emphasis added).
44. As the 2002 Framework Decision must be implemented by domestic legislation, the 2002 Framework Decision establishes that it is the responsibility of the executing judicial authority to decide on the issue of surrender in accordance with the domestic legislation implementing the said 2002 Framework Decision and in accordance with the principles of mutual trust and mutual recognition. It is on the basis of those legal criteria that this Court will determine this matter.
The second European arrest warrant
45. The reply of the issuing judicial authority creates a number of difficulties for this Court. Although this is an offence for which his surrender is sought for prosecution, this letter now clarifies that this respondent has in fact been convicted of the offences in the second EAW under file reference 4 T 12/2015. That is apparent from the issuing judicial authority’s statement that “the court in the case reference 4 T 12/2015 imposed on August 17, 2015 the cumulative punishment (Section 43, Subsection 2 of the Penal Code).” The next sentence confirms that, by starting off as follows: “In the judgment in the case reference 4 T 12/2015 the court […] imposed the cumulative punishment [...]”.
46. There is also a clear statement that in the case reference 4 T 12/2015, a new (cumulative) punishment has been imposed both for the offence in the case reference 1 T 76/2013 and for offences in the case reference 4 T 12/2015. It will be recalled that 4 T 12/2015 is the reference of the domestic proceedings in respect of the three offences for which the issuing judicial authority has stated that the respondent is wanted for prosecution.
47. This Court is acutely conscious that the 2002 Framework Decision provides that an EAW can be issued for the purposes of either conducting a criminal prosecution or executing a custodial sentence or detention order. Surrender could be sought where a person has been convicted but no sentence imposed. In those circumstances, the person must be understood as still being sought for the purpose of criminal prosecution. A difficulty may then arise with the issue under s. 45 of the Act of 2003 and indeed point (d) of the EAW form in the Annex to the 2002 Framework Decision. Section 45 of the Act of 2003 would appear to limit the requirement to fill in point (d) to the situation where a custodial sentence has been imposed on the person. However, the issue of presence or absence at trial is a matter that an executing judicial authority may need to take into account in determining whether conditions for surrender have been met, e.g. that there is no egregious breach of fair trial rights. It would be preferable, therefore, for an issuing judicial authority to at least provide the information at some point in the EAW, or in additional documentation, that the person was actually present at their trial or, if tried in absentia, that the conditions set out in point (d) have actually been met.
48. In this case, due to the manner in which this second EAW was completed, the Court had been left with an initial understanding of the case which was that no trial had taken place in this case. There was no reference at an earlier stage in the information that a decision had been taken on 17th August, 2015 in respect of this case. While, it can be said that the reference to s. 43 of the Penal Code with regard to cumulative and multiple punishments certainly indicated that this was a possibility in terms of his sentencing, in the view of this Court, the issuing judicial authority did not make it clear that a decision had already been made that a new cumulative punishment would issue in respect of this matter.
49. The position now is that the respondent was convicted for the earlier offence under file reference 1 T 76/2013 and for these offences under 4 T 12/2015. In neither situation has any information been given to this Court as to whether these were trials in absentia or not. Although point (d) may not necessarily have to be filled out in respect of each matter, where the respondent is being sought for continued prosecution, the court would be entitled to enquire whether his surrender is prohibited under the provisions of s. 37 of the Act of 2003 on the basis that there was a prohibited trial in absentia. No information as to what sentence, if any, was imposed. There is also no statement in the second EAW as to what occurred during the trial for the particular offence contained in file reference 1 T 76/2013, or indeed to the sentence actually imposed thereon.
50. The Supreme Court (Denham C.J.) in the case of Minister for Justice and Equality v. Herman [2015] IESC 49 stated at para. 17:
“At the core of this appeal is the issue of clarity; or the lack of it. It is essential when a court has before it a request in a European arrest warrant that there be clarity as to the offences for which surrender is sought, and as to any proposed sentencing. This is the settled jurisprudence of the Court.”
51. It is perhaps not insignificant that in Herman, the Supreme Court was dealing with EAWs that had issued from the Czech Republic. The Supreme Court noted that with respect to two of the EAWs, there was a lack of clarity and the Supreme Court (Denham C.J.) observed at para. 21:
“To some degree this lack of lucidity arises because of an aspect of the law of the Czech Republic which enables a sentence in an earlier court decision be varied by a later court decision.”
The Supreme Court (Denham C.J.) went on to state at para. 22 that “[t]his illustrates a difference between the law of the Czech Republic and Ireland. However, that is not the issue. The issue is the lack of clarity […] as to exactly for what the requesting state seeks the [respondent].”.
52. In the present case, the issues before this Court with respect to the second EAW are not identical to those before the Supreme Court in Herman. However, despite the further information, the Court is not satisfied that the second EAW and the additional information, when read together, provide the clarity which is to be expected in respect of a European arrest warrant. The EAW unequivocally states that it “relates to in total: three (3) offences”. Those offences are offences allegedly occurring in June, 2014, December, 2014 and January, 2015. Under that part of the form which refers to the nature and legal classification of the offences and the applicable statutory provision/code, those three acts are referred to, as is the fact that he committed an act with reference to file reference 27 T 28/2013. There is no reference at that point to the “fourth” offence set out with file reference 1 T 76/2013.
53. The response of the issuing judicial authority dated 4th October, 2016, states that the second EAW was issued for three acts described in point (e) as items 1) to 3). The EAW and that additional documentation completely contradict the most recent statement of the issuing judicial authority which states “that extradition of the defendant is therefore demanded both for the offence in the case Reference 1 T 76/2013 and for offences in the case Reference 4 T 12/2015”. If his surrender was being sought for four offences (to include the offence committed in June, 2013 with reference 1 T 76/2013), the EAW should have clearly stated that his surrender was being sought for four offences. What this Court has been presented with is an EAW and initial additional information which state unequivocally that he is sought for three offences and that the EAW issued for three offences, whereas the latest information states that the respondent is wanted in respect of a fourth offence, namely the offence committed on 1st June, 2003 with file reference 1T 76/2013.
54. On the basis of the foregoing, there is a lack of clarity as to precisely how many offences for which the EAW issued. There is a further lack of clarity arising from the failure to give information regarding the trial in respect of these three offences and indeed the trial for which he has apparently already been sentenced.
55. This Court understands that there may be difficulties for a Czech issuing judicial authority which is charged with issuing EAWs for execution in a state with an entirely different legal system. Czech law is indeed different to Irish law with respect to cumulative punishments. It seems that in the Czech Republic what may appear to be a final decision in respect of a particular punishment is subject to reconsideration if a defendant is convicted of offences that were committed before the final decision is actually made. It may be necessary for an issuing judicial authority, in additional to seeking surrender for the prosecution offences, to seek surrender for the offence for which he had been previously sentenced but which is subject to amendment should he be convicted of the prosecution offences. On the other hand, it may also be open to an issuing judicial authority to seek surrender for the offences for which prosecution is sought and, if he is subsequently convicted, to seek consent to proceed against him with respect to the offence for which he had been sentenced but in respect of which a cumulative sentence was now proposed. Neither approach was taken in a clear and unequivocal manner by this issuing judicial authority in respect of the second European arrest warrant. Indeed, the situation is further complicated because of the lack of information about whether or not he has been convicted of all four of these offences.
56. Therefore, as regards the second EAW, the particular manner in which this issuing judicial authority has sought the respondent’s surrender has given rise to a complete lack of clarity as to the number of offences for which he is sought, whether he has been convicted of these offences and the sentences, if any, that have been imposed on him. In the circumstances, the Court must refuse surrender in respect of the second European arrest warrant.
The remaining five European arrest warrants
57. The remaining five EAWs can be distinguished from the second EAW in a number of ways. They do not include within them the particular details of any other specific offence, either alleged against this respondent or found to be committed by him, unlike the second EAW which referred to the details of the offence contained in 1 T 76/2013. Instead, these EAWs refer to the fact that he had committed an alleged offence in spite of the fact that he had already been sentenced during the course of the previous three years for another theft offence. Four out of the five EAWs refer to the specific offence in the context of its reference number, namely 27 T 28/2013 – 140. The relevant section of the Penal Code, namely s. 205 at subs. 2, is underlined and indicates that a particular punishment of a prison sentence of six months to three years is provided in circumstances of this type of recidivism.
58. The issuing judicial authority has replied with respect to the first EAW which explains that he is accused of committing a recidivist theft by virtue of those particular sections of the Czech Penal Code. The Court is satisfied that the reference to the sentence for that offence as being a sign of the merits of the case, i.e. a fact of the case, shows that it is a matter which must be established by the Czech authorities in order to provide for the situation where he is subject to a particular maximum sentence. He is not been sought for prosecution in relation to that other sentence or indeed in respect of the execution of that sentence.
59. Furthermore, the issuing judicial authority has confirmed that no EAW has been issued with respect to 27 T 28/2013 as the conditions for its issuance have not yet been fulfilled. That was confirmed again in a later communication from the issuing judicial authority.
60. There is a clear distinction in the wording of the first EAW and the third EAW as compared with the second EAW, all of which were issued by the same judge of the same issuing judicial authority. In the circumstances, there can be no doubt that this was a deliberate distinction. Furthermore, the letter sent by the central authority on 10th February, 2016, on behalf of the High Court pursuant to the exercise of its jurisdiction under s. 20 of the Act of 2003, explicitly referred to the view of the High Court with regard to the rule of specialty as it concerned the offence contained in file reference 27 T 28/2013. In its reply, the issuing judicial authority made clear that his response related to the offence at 1 T 76/2013-125. Again, this is confirmation that two entirely different approaches were being taken with respect to the offences in the different European arrest warrants. Those differences are also apparent in the fourth, fifth and sixth EAWs as compared with the second European arrest warrant. With respect to the offences outlined on these five remaining EAWs for which it is stated that the respondent is sought for prosecution, unlike the situation with respect to the second EAW, there is no indication that he has been convicted of those offences. The reference to “pleaded guilty” has been explained. There is no issue with respect to s. 45 or s. 37 of the Act of 2003 as regards the question of trial in absentia, in respect of the matters for which he is being sought expressly on these European arrest warrants. Consideration of the position as regards trial in absentia for the offence for which he has already been convicted does not arise as he is not being proceeded against in respect of that earlier offence.
61. It is important to consider the provisions of s. 22 of the Act of 2003 which deal with the rule of specialty. Subsection 2 of s. 22 requires the High Court to refuse to surrender a person under the Act if it is satisfied that (a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to an EAW shall not be proceeded against, sentenced or detained for the purpose of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and (b) the person will be proceeded against, sentenced, or detained for the purpose of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.
62. Subsection 3 of s. 22 provides for a presumption that “in relation to a person to whom a European Arrest Warrant applies, the issuing state does not intend to (a) proceed against him or her, (b) sentence or detain him or her for a purpose referred to in subs. 2A, or (c) otherwise restrict him or her in his or her personal liberty, in respect of an offence unless the contrary is proved.”
63. This Court must act on the basis that there is a presumption that the Czech authorities do not intend to proceed against him, sentence or detain him or otherwise restrict him in his personal liberty in respect of any offence other than that in respect of which his surrender has been ordered pursuant to the Act of 2003. In those circumstances, and combined with the specific statements made in these EAWs as distinct from the second EAW, together with the statements of the issuing judicial authority in the reply of 4th October, 2016 and 13th February, 2017, there is no basis for concluding that the contrary has been proved.
64. The Court is satisfied that there in no intention to proceed against this respondent in respect of the earlier offence which he committed in respect of domestic file number 27 T 28/2013-140. The issuing judicial authority has stated that the conditions to seek his surrender in respect of an EAW have not been met. On the evidence before the Court, there is no basis for believing that the Czech authorities will proceed against him should he be convicted of any of these offences in the remaining five warrants without seeking the consent of this Court first. Indeed, the clear difference between these five EAWs and the second EAW supports the contention that the Czech authorities are very well aware of their obligations with regard to the rule of specialty and, while the approach taken in respect of the second EAW was unfortunately not so clear as to permit this Court to order the respondent’s surrender thereon, it does establish the intent of the Czech authorities to abide by the rule of specialty.
The First, Third and Fourth European Arrest Warrants
65. The Court considered carefully the reference to the provisions of s. 228 of the Penal Code in the first EAW and the reference to s. 178 of the Penal Code in the third and fourth European arrest warrants. The Court is satisfied that the act alleged to contravene each particular section of the Penal Code is the act described in detail at point (e) of each of those European arrest warrants. These EAWs, however, raised an issue as to whether the respondent was being sought in respect of two alleged offences or a single offence which may be punishable under two statutes arising out of the same act. Even if the latter, the EAWs did not clarify whether a sentence in respect of both was liable to be imposed, and whether such sentence would have to be served consecutively.
66. Before the Court could finalise this matter, the Court required further information as to the precise implications of the statement concerning an allegation that the respondent has committed an offence under two separate statutes. Under the provisions of s. 20 of the Act of 2003, the Court requested further information as to the precise offences for which the respondent was sought and the precise sentence for which he may be liable if convicted.
67. There was a prompt and comprehensive reply by the issuing judicial authority. The issuing judicial authority stated that the respondent was sought for one criminal act (not one offence) to which two statutory provisions apply because the criminal act contains elements of two offences. It was explained that Czech law provides for “concurrence of offences” which occurs in a situation when a perpetrator has committed two or more offences before he or she is found guilty by a court for any of them. There is a variety of “concurrence of offences” which is called “joinder of offences” and the latter situation applies where one criminal act contains elements of more offences. It was explained that in relation to each one of the first, third and fourth offences, this was a situation where there was a joinder of offences and the Czech court had to impose a cumulative punishment under s. 43 subsection 1 of the Penal Code. This means that the Czech court must impose punishment on the criminal offence which draws the more severe punishment.
68. Both counsel for the minister and the respondent were in agreement that the information had clarified the position. The respondent was wanted for a single criminal act (to which two statutory provisions apply) but he could only be subjected to the maximum penalty for the offence of theft because this carries the most severe penalty. The Court is satisfied there is no lack of clarity as to the position the respondent faces in the Czech Republic should he be surrendered.
69. Counsel for the respondent submitted that the issue remained as to whether the Court could accept that there had been a change in the number of offences. In each of these EAWs, it was stated that the respondent was sought for a single offence.
70. In the view of the Court, the situation is now clear. These EAWs state that the respondent is sought for one offence. Although it has been stated that the act he is sought for is a single criminal act (which is covered by two statutory provisions), the respondent can only be punished in respect of a single offence. In that respect, there is no difficulty as the respondent is being sought for a single act which amounts to a contravention of two provisions of Czech law, the more serious of which is an offence of theft for which the maximum sentence is three years imprisonment which is stated in part (c) of each of these European arrest warrants. His surrender is not prohibited because of the further information contained in the EAW concerning the other statutory provisions applicable to this single criminal act, which said information is now fully explained and does not alter the fact that he is sought to be prosecuted for a single act which may be subject to a three-year penalty on conviction. In reality, the respondent is being prosecuted for a single offence as he can only be convicted of a single offence and the maximum penalty for that offence is set out in each relevant European arrest warrant.
Conclusion
71. For the reasons set out above, this Court must refuse the surrender of the respondent in respect of the second European arrest warrant. In respect of the remaining five EAWs, the Court rejects the points of objection raised on behalf of the respondent and the Court is satisfied that the respondent’s surrender is not prohibited under the Act of 2003. The Court will therefore make an order for his surrender in respect of each of the offences as set out on the first, third, fourth, fifth and sixth EAWs to such other person as is duly authorised by the Czech Republic to receive him.
