The High Court has refused to surrender Mário Tulis to Slovakia under a European arrest warrant, finding that the legal conditions for surrender after a trial in his absence had not been met.
The warrant sought his surrender to serve an 18-month sentence for burglary. The sole contested issue was whether surrender was prohibited under section 45 of the European Arrest Warrant Act 2003, which sets conditions for surrender where a person was not present at trial.
The Slovak issuing authority relied on a provision stating that Tulis knew of the scheduled trial, had authorised a lawyer to defend him, and that the lawyer represented him at the hearing. The High Court accepted the issuing authority’s account that Tulis had appeared earlier in the proceedings, later failed to attend scheduled hearings, could not be located, and was processed as a fugitive. A lawyer appointed by the court represented him at the hearing that led to his conviction.
The judge said the relevant provision required three things: awareness of the scheduled trial, a mandate to a lawyer, and actual representation at the hearing. A person may give a mandate to a state-appointed lawyer by knowingly choosing to stay away from trial when aware that a lawyer will be appointed in their absence.
The court found Tulis had been aware that a trial was scheduled. But it was not satisfied that he knew a lawyer would be appointed if he failed to attend. The information from Slovakia referred to a mandatory lawyer when Tulis was in custody on another matter, but did not establish that he had been told a lawyer would represent him if absent from the later trial. The judge said there was no other evidence of such knowledge.
The court also addressed the designation of the case as a trial in absentia. It concluded that, on the information and arguments before it, it would be wrong to disregard the issuing authority’s designation. The broader question of when an executing court may look behind such a designation was left for another case.
The court held that the conditions for permissible surrender had not been satisfied and that surrender was prohibited under sections 45 and 16. It was otherwise satisfied that Tulis was the person named in the warrant, that it had been endorsed for execution, and that no other section considered barred surrender. The final order was to refuse surrender.