Supreme Court dismisses appeal on surrender; appellants failed to prove future prosecution for other offences.

THE SUPREME COURT

No 134/07

No. 135/07

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between:

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Respondent

-AND-

TOMÁŠ PÙTA

Respondent/Appellant

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Respondent

-AND-

MAROŠ ŠULEJ

Respondent/Appellant

JUDGMENT of Mr. Justice Fennelly delivered the 6th day of May 2008

1. The court has delivered judgment rejecting the appeal of the above-name appellants who, together with one

Mohammed Iqbal, contested the validity, having regard to the Constitution, of the European Arrest Warrant Act, 2003.

In this judgment I consider independent complaints made by the two appellants concerned in these appeals, which do

not relate to the constitutional validity of the Act.

2. On 10th July 2006 European Arrest Warrants were issued by the Regional Court in Prague, a judicial authority in

the Czech Republic, in respect of Tomáš Pùta (the “first appellant”) and Maroš Sulej (the “second appellant”). The

first appellant is sought in respect of seven and the second appellant in respect of four charges of robbery and theft. All

the offences are alleged to have been committed in the Czech Republic in 2000 and 2001. The first appellant is a

citizen of the Czech Republic. The second appellant is a citizen of the Slovak Republic.

3. Each warrant was duly endorsed for execution by the High Court on 14th July 2006; the appellants were arrested on

25th August 2006; they were brought before the High Court (Peart J). Each filed Points of Objection and a number of

supporting affidavits. Having heard appropriate evidence on formal matters such as identity, the learned High Court

judge was satisfied that, subject the issues that had been raised in relation to fundamental rights under Part III of the

Act of 2003, he was required to make the order sought in respect of each of the appellants.

4. The appellants advanced a number of grounds of objection to their surrender at the hearing in the High Court. Only

three of these have been pursued on the appeal, namely:

1. The law implementing the European Arrest Warrant in the Czech Republic as from 1st January 2005 purports to

apply retrospectively insofar as the appellants are concerned. Their offences are alleged to have been committed in

2000 and 2001. Czech law does not permit the surrender from the Czech Republic of Czech citizens to other

European Union countries in respect of offences committed prior to 1st January 2005. This, it was argued, constitutes

discrimination contrary to Czech Constitutional principles. Hence, the European Arrest Warrant was not duly issued

for the purposes of section 10 of the Act of 2003.

2. The appellants, according to their affidavits, believe the Czech Republic to be deeply corrupt. They worry for their

safety, if returned. They will not have a fair trial, inter alia, because of widespread prejudicial publicity. To return

them, in these circumstances, would be contrary to section 37 of the Act of 2003.

3. They say, based on the evidence given by a Czech official on a bail application in the High Court, that they will, if

they are surrendered to the Czech Republic, be prosecuted or imprisoned in respect of offences other than those

covered by the European Arrest warrants, in breach of sections 22 to 24 of the Act of 2003.

5. Peart J rejected each of these grounds of objection and made an order in the case of each appellant for his surrender

to the Czech Republic pursuant to section 16(1) of the Act of 2003.

The appeal

6. The appellants have brought appeals against the decision of the High Court in respect of the above three grounds.

The first ground: the warrants were not duly issued

Evidence of Czech law was placed before the High Court in each case. Each of the appellants relied on affidavit

evidence from a person apparently qualified to practice law in the Czech Republic. The Minister’s written submissions

complain that the document produced in the case of the second appellant appears to be an unsworn document.

Nevertheless, for what it is worth it seems to identify a simple legal contention.

7. Stripped down to its essentials, the point made relates to an alleged difference of treatment of the appellants

compared with the treatment, under the rules governing

the surrender of persons from the Czech Republic to other Member States, of Czech citizens. I confess that it is

extremely difficult to be precise about the nature of the legal point, due partly to imperfections in the translated

documents before the Court. It is said that citizens of the Czech Republic may not be surrendered pursuant to a

European Arrest Warrant to another Member State in respect of offences alleged to have been committed before1st

January 2005. On the other hand the Czech Republic may seek the surrender from other Member States of persons

(including citizens) who are sought in respect of offences alleged to have been committed before 1st January 2005.

This difference of treatment is said to have come about as a result of Law No 253/2006 modifying the effect of the

European Arrest Warrant, as effected by Law 539/2004 Sb. That law had amended the Penal Code with effect from

1st January 2005. An affidavit of Czech law, from Mr Jaroslav Ortman, a lawyer who has acted for the first appellant

in a number of criminal proceedings was produced on his behalf in the High Court. Mr Ortman invokes what he calls

“the constitutional principle of equality.” Similar affidavit material has been submitted on behalf of the second

appellant. Both appellant says that they are considering a constitutional complaint on behalf of the first appellant,

which, if successful, according to Mr Ortman, “would have significant importance to the proceedings against the first

appellant.” Documents have been submitted suggesting that an application has been made to the Czech Constitutional

Court at Brno. No decision of that Court has been produced.

8. Dr Michael Forde, Senior Counsel, argued for the appellants that the obligation of the courts to order the surrender

of persons subject to European Arrest Warrants applies only when, as section 10 of the Act of 2003 provides, “a

judicial authority in an issuing state duly issues a European arrest warrant…” (emphasis added). Counsel for the

Minister draws attention to section 4A of the Act, inserted by section 69 of the Criminal Justice (Terrorist Offences)

Act 2005, provides:

“It shall be presumed that an issuing state will comply with the requirements of the Framework Decision,

unless the contrary is shown.”

Consideration of this point

9. I will assume, for the purposes of the argument, that it would be contrary to the provisions of the Framework

Decision if a Member State were to issue a warrant contrary to the terms of its own law and constitution. The

presumption enjoined by section 4A reflects the principle of mutual recognition upon which the entire Framework

Decision is based. Article 1(1) of the Framework Decision states that: “The European arrest warrant is a judicial

decision issued by a Member State…” The burden is upon the appellants to show that the decision of the Regional

Court of Prague to issue the arrest warrant was contrary to the law of the Czech Republic. That decision has not been

set aside by any other judicial authority in the Czech Republic. Neither of the affidavits upon which the appellants rely

alleges that the decision of the Prague Court was invalid or unlawful. At most, they evince an intention to make a

complaint to the Constitutional Court.

10. This ground of appeal is, in my view, entirely unsustainable. The appellants wish this Court to rule that the

provisions of Czech law which implement the European arrest warrant are contrary to Czech constitutional principles.

This Court could not conceivably pass judgment on the validity of existing Czech legal provisions. That is patently

exclusively a matter for the domestic legal system.

11. In these circumstances, it is not appropriate to express any view about whether the distinction identified by the

appellants could amount to discrimination.

12. I would dismiss this ground of appeal.

Infringement of fundamental rights; fair trial

13. The appellants have made wide-ranging charges against the Czech Republic, amounting, in effect, to a contention

that that Member State is, in reality, not fit to be a member of the European Union. In doing so, they invoke section

37 of the Act of 2003, which provides:

(1) A person shall not be surrendered under this Act if—

(a) his or her surrender would be incompatible with the State's obligations under—

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than

for the reason that the offence specified in the European arrest warrant is an offence to which section 38

(1)(b) applies),

(c) there are reasonable grounds for believing that—

(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or

her prosecution or punishment in the issuing state for reasons connected with his or her sex, race,

religion, ethnic origin, nationality, language, political opinion or sexual orientation, or

(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less

favourably than a person who—

(I) is not his or her sex, race, religion, nationality or ethnic origin,

(II) does not hold the same political opinions as him or her,

(III) speaks a different language than he or she does, or

(IV) does not have the same sexual orientation as he or she does,

or

(iii) were the person to be surrendered to the issuing state—

(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried

out, or

(II) he or she would be tortured or subjected to other inhuman or degrading treatment.

14. The appellants, in their joint written submissions, claim to have “sworn to their fears for their lives and liberty,

and [to] to have put forward a factual basis for their concerns, including killings, kidnaps and corruption in the

Czech Republic.”

15. The first appellant has sworn: “I am worried for my safety. I believe I will be killed or seriously harmed if

returned to the Czech Republic and I believe I cannot get a fair trial.”

16. The second appellant has sworn: “I am worried for my safety. I believe I will be tortured, seriously harmed or

killed if returned to the Czech Republic. I believe I cannot be protected or get a fair trial.”

17. It scarcely needs to be said that our courts would not surrender anybody to a Member State where he or she was

likely to be subjected to treatment such as is alleged to be feared in these statements. The thirteenth recital to the

Framework Decision, which is reflected by section 37 of the Act of 2003, says:

“No person should be removed, expelled or extradited to a State where there is a serious risk that he or

she would be subjected to the death penalty, torture or other inhuman or degrading treatment or

punishment.”

18. The question then arises as to the quality or standard of proof which the courts of the executing state should

require to satisfy it that the person whose surrender is sought faces such a serious risk. In the present case, the

appellants’ surrender is sought to face trial on serious criminal charges.

19. In their affidavits, they attempt to mount an attack on the root and the branch of the police, legal and governmental

system of the Czech Republic. The first

appellant queries whether the Czech Republic is acceptable to be a member of the EU. He says: “The Czech Republic

is more like the Wild West and those in charge are more like the Italian mafia.” The balance of his affidavit contains

a large number of largely incomprehensible allegations of corruption and violence (including murder) against, on the

whole, unnamed persons. The second appellant largely supports the allegations of the first appellant. He says he has no

faith in the justice system of the Czech Republic. In particular, he lists fourteen people described as: “people who

knew a lot about corruption in the police and justice system……or who wanted to speak out about it [who] have either

been killed or have died in suspicious circumstances.”

Consideration of this ground

20. The appellants have produced no independent evidence in support of what amounts to an invitation to this Court to

condemn the Czech system of justice as fundamentally unjust, corrupt and incapable of providing a fair trial. The first

appellant has sworn a lengthy affidavit full of unsubstantiated allegations of mistreatment of members of his family and

others.

21. I am satisfied that this Court simply cannot act on foot of affidavits which have all the appearance of wild and

irresponsible allegations. It has to take judicial notice of the principle of mutual recognition. Membership of the

European Union imposes on each and every Member State the obligation to respect fundamental human rights. As a

consequence, each Member State owes it to each other to presume, unless the contrary is clearly shown, that it will

respect those rights both as they reside in its own citizens and in the citizens of the other Member States.

22. The Minister has drawn attention to the tenth recital to the Framework Decision which is in the following terms:

The mechanism of the European arrest warrant is based on a high level of confidence between Member

States. Its implementation may be suspended only in the event of a serious and persistent breach by one

of the Member States of the principle set out in Article 6 (1) of the Treaty on European Union,

determined by the Council pursuant to Article 7 (1) of the said Treaty with the consequences set out in

Article 7 (2) thereof.

23. Article 6 of the Treaty on European Union provides:

1. The Union is founded on the principles of liberty, democracy, respect for human rights and

fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the

Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as

they result from the constitutional traditions common to the Member States, as general principles of

Community law.

24. Article 7 of that Treaty sets out an elaborate mechanism, implicating the European Parliament, the Council and the

Commission, and potentially leading to a determination that “there is a clear risk of a serious breach by a Member

State of principles mentioned in Article 6(1)…”

25. If respect for fundamental human rights in the Czech Republic were so at odds with the obligations incumbent on

that Member State pursuant to Article 6 of the Treaty on European Union, the procedures provided by Article 7 of

that Treaty would have to be set in train. The appellants make allegations of a highly generalized character, but they

produce no evidence relevant to their own cases. In my view, it is not open to the courts of a single Member State to

decide that issue, at least without clear independent evidence.

26. It is, of course, clear that persons in the position of the appellants are entitled to resist the making of the order by

producing proof that they face the risk of mistreatment on their return. That is clear from the recitals to the

Framework Decision and from section 37 of the Act of 2003. But they must discharge a heavy onus. They must rebut

the presumption that the issuing state generally respects human rights. The evidence must be cogent. That is that it

must be coherent and persuasive. It is easy to

make unsupported and unverifiable assertions about the state of affairs in another country.

27. I am satisfied that the affidavit evidence produced in this case falls far short of discharging the burden resting on

the appellants. I would dismiss the ground of appeal.

The third ground: Specialty

28. Section 22(2) of the Act of 2003, as amended by the Act of 2005 provides:

“Subject to this section, the High Court shall refuse to surrender a person under this 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 a

European arrest warrant shall not be proceeded against, sentenced or detained for the purposes 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 purposes of executing a sentence

or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.”

29. The term “offence” is defined in subsection (1) as being an offence (other than the offence in respect of which the

surrender is sought) committed before the surrender.

30. Sub-section (3) provides for a presumption in the following terms:

“It shall be presumed 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 subsection (2)(a), or

(c) otherwise restrict him or her in his or her personal liberty,

in respect of an offence, unless the contrary is proved.”

31. It follows from these provisions that the appellants must satisfy the Court, in the event of their being surrendered,

of two matters, namely:

· That the law of the Czech Republic does not provide that they will not be proceeded against, sentenced or detained

in respect of matters other than those for which they have been surrendered;

· That they will, in fact, be proceeded against, sentenced or detained in respect of such other matters.

32. Both appellants rely on evidence given by one Major Gregor from the Czech Republic at High Court bail hearings.

That witness gave evidence that the first appellant had been convicted in his absence of an offence and sentenced in

December 2005 to two years imprisonment. In addition, he was suspected in the Czech Republic of other offences

including murder. This evidence appears, incidentally to be confirmed by Mr Ortman, mentioned above, who mentions

having acted for the first appellant in criminal cases where sentences of imprisonment were imposed.

33. In the case of the second appellant, the evidence of Major Grigor was that there are “other matters where Mr.

Sulej is suspect are being investigated…”

34. It can be assumed, therefore, that there are outstanding criminal matters, in respect of which the appellants might

be the subject of investigation and consequential prosecution in the Czech Republic. The first appellant seems to have

been convicted and sentenced to a term or terms of imprisonment, though it is unclear whether any of those sentences

have been served.

35. However, section 22 imposes the burden of proof on the appellants to establish the legal situation in the Czech

Republic and the fact that they will be prosecuted for other offences.

36. The key and more important point is that section 22 reflects the provisions of Article 27 of the Framework

Decision. Paragraph 2 of that Article provides that, subject to exceptions which are not relevant and which are also

reflected in section 22:

“Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted,

sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her

surrender other than that for which he or she was surrendered.”

37. The appellants have not suggested that this aspect of the Framework Decision has not been implemented in Czech

law. This Court must presume, until the contrary is proved, that it has. Section 4A of the Act of 2003, as amended in

2005, provides:

“It shall be presumed that an issuing state will comply with the requirements of the Framework

Decision, unless the contrary is shown.”

38. It should be clearly stated that the Framework Decision prohibits the prosecution or imprisonment of persons

surrendered in respect of matters committed prior to their surrender other than the charges for which they have been

surrendered. The Czech Republic would be acting in breach of its obligations under the Framework Decision, if it were

to prosecute or otherwise pursue either of the appellants in respect

of such matters other than the offences specified in the warrant. However, the appellants have not shown that this will

happen.

39. I would dismiss this ground of appeal.

40. Accordingly, for the reasons given, I would dismiss the appeal of each of the appellants and affirm the order of the

High Court.