The High Court ordered the surrender of a man to Germany to serve the balance of a seven-year sentence, finding that he had fled Germany after his release from pre-trial detention while an appeal was pending.
In a judgment delivered on 20 June 2008, Mr Justice Michael Peart said the surrender request concerned four offences listed in the European arrest warrant as categories for which dual criminality did not have to be established. The respondent did not contest that he was the person named in the warrant. The court found no other statutory bar to surrender and said no undertaking was required.
The dispute was whether the respondent came within section 10(d) of the European Arrest Warrant Act 2003, which covers a person sentenced to imprisonment who fled the issuing state before starting or completing the sentence.
The respondent said he had been released unconditionally in Germany on 17 August 2006 while awaiting the outcome of his appeal. His German lawyer’s affidavit said there were no release conditions preventing him from leaving. He told the court he was homeless, lacked income and could not work in Germany without a permit. He said he left for Ireland to find work after an immigration official told him he could travel to another EU member state.
The court also heard evidence that, when arrested in Ireland, the respondent said he had come because he felt safe there, as Ireland was not part of the Schengen Agreement. He accepted making the remark but said it was not his actual reason for leaving.
Justice Peart said the lack of a condition barring departure did not, by itself, establish that the respondent had not evaded justice. He noted that the respondent had been convicted and sentenced, knew he would have to serve the sentence if his appeal failed, and left Germany within days of release. The court found that the evidence did not discharge the respondent’s burden of showing that he had not left to avoid serving the sentence.
The judge distinguished the case from *Minister for Justice v Tobin*, where the issuing court had knowingly allowed the respondent to leave Hungary under a financial bond and accepted that no law was breached. He said the circumstances in that case were unique.
The court concluded that the relevant provisions of the Act and Framework Decision were met and ordered surrender. The judgment resolved the Irish surrender application; it did not determine the outcome of the German appeal.