The Court of Appeal has dismissed an appeal by Michal Kubálek against an order for his surrender to the Czech Republic on a European arrest warrant. The appeal concerned surrender for two offences: theft and causing damage to another’s property. The court did not reconsider the High Court’s refusal to surrender him for two other offences.
The warrant seeks his surrender to serve the outstanding balance of an aggregate sentence imposed after he was tried and convicted in absentia. It said he would be personally served with the decision after surrender and could seek a retrial or appeal, with the case’s merits and fresh evidence open to review. The request also concerned alleged failure to pay child maintenance and obstruction of justice and of a sentence of banishment.
The High Court had found that the maintenance and obstruction offences did not correspond to offences under Irish law. It nevertheless ordered surrender for theft and property damage, relying in part on the possibility that Czech law would provide for a proportionate reduction of the aggregate sentence for offences not covered by surrender, or that a retrial could result in a new sentence limited to the offences covered.
On appeal, Kubálek argued that surrender was barred because the warrant did not specify the sentence attributable to the offences for which surrender was allowed. He relied on the Supreme Court’s decision in *Minister for Justice v Ferenca*, where surrender was refused because a person would otherwise have had to serve part of a composite sentence imposed for an offence for which surrender was not legally possible. The Minister argued that the potential retrial and sentence reduction distinguished this case.
The Court of Appeal held that those options meant Kubálek would not be required to serve a sentence that included offences for which he was not surrendered: either route would lead to resentencing that excluded them. It also held that the warrant’s penalty-information requirement did not require the penalty imposed to be stated where, under the EU law meaning applied by the court, the judgment was not final. The in absentia convictions could be reopened, and the warrant gave the prescribed scale of penalties for the offences.
The court said the applicable minimum-gravity threshold was whether the offences were punishable in the issuing state by a maximum sentence of at least 12 months. It found that threshold was met. The court answered the first certified question in the affirmative. It did not answer the second, concerning whether a guaranteed proportionate reduction could satisfy the penalty-specificity requirement, because that requirement did not apply on its analysis. The appeal was dismissed.