Judgment: 2013-03-05 · Court archive

High Court refuses surrender after Italian trial was not disclosed

The court said it could not order surrender because the respondent had been tried and sentenced in absentia without the notice required by law, and could not appeal. It directed that its reasons be sent to the Italian issuing authority and Eurojust.

High Court · [2013] IEHC 96

Who, what, where, when and why

Who
  • Minister for Justice and Equality (Applicant)
  • Arben Kosterri (Respondent)
  • Mr Justice Edwards
  • Tom Molloy
What

The court said it could not order surrender because the respondent had been tried and sentenced in absentia without the notice required by law, and could not appeal. It directed that its reasons be sent to the Italian issuing authority and Eurojust.

Where

Places mentioned in the report

  • The Eglinton Hotel
  • Italy
  • Salthill
  • Galway
When

Judgment:

Why

Reasons reported in the judgment

The High Court refused to surrender Arben Kosterri to Italy after further information showed he had been tried and sentenced in his absence, despite an Irish warrant seeking his surrender for prosecution. Mr Justice Edwards said the court could not make a surrender order because the requirements of section 45 of the European Arrest Warrant Act 2003 had not been met.

The High Court refused to surrender Arben Kosterri to Italy after further information showed he had been tried and sentenced in his absence, despite an Irish warrant seeking his surrender for prosecution. Mr Justice Edwards said the court could not make a surrender order because the requirements of section 45 of the European Arrest Warrant Act 2003 had not been met.

The European Arrest Warrant had been issued by an Italian judicial authority in June 2008 and sent to Ireland in January 2010. The High Court endorsed it for execution on 27 January 2010. Detective Sergeant Tom Molloy arrested Mr Kosterri at The Eglinton Hotel in Salthill, Galway, on 14 June 2012. A surrender hearing took place on 12 February 2013.

Mr Kosterri objected to surrender, saying he had already been convicted of the offences, although the warrant described him as wanted for prosecution. The Irish Central Authority sought further information from Italy. The response confirmed he had been tried in absentia after the warrant was issued. The judgment said he had not been notified of the time and place of the trial as required by section 45 and appeared unable to appeal because the time limit had passed.

The court concluded that the applicant could not satisfy section 45 and said it had “no option but to refuse surrender.” The judgment gives reasons for refusing an order under section 16(1); it does not report an order surrendering Mr Kosterri.

Justice Edwards also criticised the failure to inform Irish authorities that the trial had been planned and then held. He said the non-communication led to Mr Kosterri being arrested and briefly deprived of his liberty on a warrant that was jurisdictionally flawed. The court said this was the second recent case involving Italian warrants in which people sought for prosecution had already been tried in absentia without Irish authorities being told. It referred to Minister for Justice and Equality v Gherine, in which the people concerned were acquitted of some charges and convicted of others.

Under section 16(10), the court directed the Irish Central Authority to notify the Italian issuing judicial authority and Eurojust of the reasons for refusing surrender. It also directed that the judgment be sent to both.

Read the original court judgment

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