The High Court ordered the surrender of J H to the Czech Republic under a European arrest warrant, so he can serve a two-year sentence imposed there for theft and fraud. The court rejected his objection that he had not fled the country before the sentence was imposed or begun.
Mr Justice Michael Peart delivered the judgment on 22 May 2007. The warrant, dated 4 August 2006, had been endorsed for execution by the High Court on 23 January 2007. J H was arrested on 8 February and remanded while the surrender application proceeded.
The Czech District Court in Pardubice convicted and sentenced him in his absence on 11 December 2003. The warrant included an undertaking that he would be retried, or given an opportunity for a retrial, and notified of its time and place. The High Court found that undertaking sufficient under section 45 of the European Arrest Warrant Act 2003. It also found that the fraud offence was one for which double criminality did not need to be verified and that the minimum gravity requirement was met.
The respondent argued that he had left the Czech Republic lawfully and was not shown to have fled before beginning his sentence. The judgment records that he left in about July 2002, travelled first to Switzerland and then Belgium, where he unsuccessfully sought asylum, and arrived in Ireland around June 2003. The court did not know when proceedings against him began or what he knew about them before leaving.
The applicant, the Minister for Justice, Equality and Law Reform, relied on the warrant’s description of J H as “a fugitive” and argued that the respondent had not rebutted it with evidence. The court noted that he had not sworn an affidavit himself; his solicitor’s account was based on instructions and could not be tested in cross-examination. The court held that the evidential burden rested on the respondent and that he had not met it.
The judge interpreted section 10(d) in line with the European Arrest Warrant Framework Decision and concluded that the presumption arising from the warrant had not been displaced. The court therefore said it was obliged to make the surrender order. It did not decide whether the respondent could also fall within section 10(b), saying that question need not be resolved.