The High Court has refused a German request for consent to enforce an eight-month sentence against Benjamin Korte, who had already been surrendered to Germany on a separate European Arrest Warrant.
In a judgment delivered on 14 December 2022, Ms Justice Stack found that the request was made by a German public prosecutor, but there was no evidence that the prosecutor was the issuing judicial authority or had acted with that authority’s approval. The court therefore refused the request under section 22(7) of the European Arrest Warrant Act 2003.
Mr Korte had consented in December 2021 to surrender on an August 2021 warrant and was sent to Germany on 29 December that year. A separate warrant, issued by a German judge on 10 December 2021, sought his surrender to serve an eight-month sentence for one fraud offence. The judgment says the second warrant arrived too late to be considered with the first.
In a letter dated 14 February 2022, a German public prosecutor asked Ireland to approve Mr Korte’s extradition in respect of the offence in the second warrant, referring to Article 27 of the EU Framework Decision on the European Arrest Warrant. The Minister for Justice later sought the correct English translation of the warrant; the translation initially sent was for the earlier warrant. In August, the prosecutor’s office confirmed that consent was requested and said it was responsible for making the request as Germany’s enforcement authority.
Justice Stack said a request that could change the offences for which a person might be tried or the sentence they might serve had to be made by the issuing judicial authority. Although the Minister relied on mutual trust between states, the judge said the documents did not identify the prosecutor as Germany’s issuing judicial authority. The second warrant, by contrast, identified a judge in that role.
The judge also noted the respondent’s argument that delays could mean time he spent in custody in Ireland would not count towards the German sentence. She said that could be material in the context of an eight-month term, while observing that any alteration in custody credit would require judicial control. That issue was not the stated basis for refusing the request.
Justice Stack followed the approach in an earlier High Court case, Minister for Justice v Connors, where a request was refused because there was no evidence that a decision to reconfigure a warrant had been made judicially. She distinguished a Court of Appeal case, Minister for Justice v Fassih, because there the prosecutor had asked an investigating judge to issue an additional warrant. Having refused the request on the authority issue, she did not address a separate point concerning Minister for Justice v Kairys.