MJELR -v- DUNKOVA
HIGH COURT
Judgment delivered on May 30th, 2008 by Mr Justice Peart
JUDGMENT
A Czech national should not be surrendered to the Czech authorities on foot of a European arrest warrant because the offence alleged in the Czech warrant did not correspond to an offence in Irish law. However, two other arguments put forward by the subject of the warrant fell to be decided by the Czech, rather than the Irish, courts.
BACKGROUND
Vera Dunkova was sentenced to two and a half years' imprisonment on February 26th, 1996 for an alleged theft. She had already spent some months in prison, and two years, two months and 22 days remained to be served.
She had been granted temporary release on health grounds until December 1998. However, she never went back to prison, as she applied to the court for a suspension of the sentence for a period, and this was granted on January 27th, 1998, becoming legally valid on March 3rd that year.
She had also sought a pardon in June 1998 for the offence, but she never received a reply to this request. This issue was not relevant to the question of her surrender. On March 7th, 2003 she received an invitation to present herself to serve the balance of her sentence.
Under Czech law, there is a limitation period of five years for the suspended sentence from which she benefited. Her Czech lawyer, Vera Ptakova, provided an affidavit to the High Court stating that, following the March 7th communication, she had written to the Czech authorities on Ms Dunkova's behalf stating that the limitation period had expired, and was therefore unenforceable. She received no reply to that letter.
Ms Dunkova left the Czech Republic to come to Ireland in July 2003. She came with her husband and family, who sought asylum on the grounds that they were subjected to violence, abuse and intimidation because of their membership of the Roma community.
They failed in their asylum application, but remained in the country.
In January 2008, the Czech judicial authorities wrote to the Irish authorities seeking Ms Dunkova's surrender to serve her sentence on foot of a European arrest warrant.
This applies to people from other EU states who are in Ireland, and who are sought in order that proceedings may be brought against them, or who are the subject of such proceedings, or who have been convicted but not yet sentenced, or who have been sentenced, but who fled before commencing or completing that sentence.
In all these cases, it is necessary that the offence for which they are sought corresponds to one to which the European arrest warrant relates.
Seán Guerin BL, for Ms Dunkova, said that as the limitation period had expired, she did not "flee" the country issuing the warrant without completing her sentence. There was no evidence she left in haste, she consulted her lawyer when she received the invitation to present herself, the lawyer had contacted the authorities and received no reply, and she was entitled to assume she was free to leave the country.
Siobhán Ní Chualachain BL, for the Minister, said that whether the limitation period had expired or not was a matter of Czech law. The statement from the Czech authorities that it had not should be taken on face value, "on the basis of the mutual trust and confidence which exists between judicial authorities under the framework decision".
She said this differed from the Tobin case, where the Hungarian authorities acknowledged that there was no legal impediment to the respondent leaving Hungary.
Mr Guerin also argued that the offence of which Ms Dunkova was convicted did not correspond to an offence in this jurisdiction, as required under the European arrest warrant.
She was convicted under the provisions of the Czech criminal code of taking money and goods from a flat while its occupant was asleep. The corresponding Irish statute is the Criminal Justice (Theft and Fraud Offences) Act 2001, which describes theft as the taking of property "without the consent of its owner and with the intention of depriving the owner of it". There is no such reference to the absence of consent of the owner in the Czech criminal code.
Mr Ní Chualachain said that it was obvious that the allegation was one of taking property without the consent of the owner. She referred to the judgment of Mr Justice Geoghegan in Myles -v- Screenan, where he said: "A mere imperfection in draftsmanship would not be sufficient to defeat the warrant."
Mr Guerin also argued that Ms Dunkova's rights under the European Convention on Human Rights had been violated by the delay in seeking her return to serve her sentence, originally imposed in 1996. She was now in poor health. Requiring her to serve the sentence now did not serve any of the purposes of a sentence, that is, rehabilitation, punishment or deterrence, and was disproportionate.
DECISION
Mr Justice Peart said: "There is no doubt that a considerable passage of time has elapsed from the time the respondent was originally sentenced in 1996." However, he said this was not a matter on which the Irish court could adjudicate. In relation to Ms Dunkova's health, the court was not in a position to assess whether she would receive adequate medical care in the Czech prison. These issues would have to be argued in a Czech court.
In relation to the question of the expiry of the five-year limitation period for the suspension of the sentence, he said that it was quite clear that the issuing judicial authority, the Czech court, did not consider the respondent free to leave the country without serving the balance of her sentence. The issue of the expiry of the time remained unresolved as a matter of Czech law and could only be resolved by the Czech courts.
However, he found that the crime described on the Czech warrant did not correspond to that described in the Irish statute.
"I am of the view that for the offence alleged in the warrant to correspond to the offence here under S 4 of the 2001 Act, this court would have to read into the facts words which are absent from the certified translation of the warrant provided. The court cannot do that."
For this reason, he refused the application of the Minister for Justice for Ms Dunkova's surrender under the European arrest warrant. The full text of this judgment is available on www.courts.ie
Siobhán Ní Chualachain BL, instructed by the Chief State Solicitor, for the Minister for Justice; Seán Guerin BL, instructed by Garrett Sheehan and Partners, for Ms Dunkova