High Court dismisses surrender claim under EAW Act 2003 citing Supreme Court precedent on reasonable time.

Neutral Citation Number: [2011] IEHC 68

THE HIGH COURT

2010 197 EXT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003

AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

- AND -

JOSEF ADAM

RESPONDENT

JUDGMENT of Mr Justice John Edwards delivered on the 3rd day of March 2011

Introduction:

The respondent is the subject of a European Arrest Warrant issued by the Czech Republic on the 9th of March, 2010. The warrant

was endorsed for execution by the High Court in this jurisdiction on the 19th of May 2010. The respondent was arrested in Killarney

on the 20th of July 2010 but does not consent to his surrender to the Czech Republic. Accordingly, this Court is now being asked by

the applicant to make an order pursuant to s. 16 of the European Arrest Warrant Act, 2003 as amended (hereinafter referred to as

“the 2003 Act”) directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him.

In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s.16 of the 2003 Act.

In that regard the central point that the Court is required to consider in the particular circumstances of this case is whether, having

regard to alleged unreasonable prosecutorial delay in this case, it would violate the respondent’s rights under Article 47 of the Charter

of Fundamental Rights and/or under Article 6 of the European Convention on Human Rights and Fundamental Freedoms to return the

respondent to the issuing state.

The applicant contends that the legal issues raised by the respondent have already been decided by the Supreme Court in Minister for

Justice, Equality and Law Reform v Stapleton [2008] 1 I.R. 669. The respondent seeks to distinguish Stapleton.

Uncontroversial Section 16 issues

The applicant has been put on full proof by the respondent. Accordingly, as no admissions have been made, the Court is put on

inquiry as to whether the requirements of s. 16 of the 2003 Act, both controversial and uncontroversial, have been satisfied and this

Court’s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have

been so satisfied.

The Court has received an affidavit of Det Garda William Stack sworn on the 1st of December, 2010 and has also received and

scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest

Warrant which is on the Court’s file and which bears this Court’s endorsement. The Court is satisfied following its consideration of this

evidence and documentation that:

(a) the person before it is the person in respect of whom the European arrest warrant was issued;

(b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the 2003 Act;

(c) the Court does not require to receive an undertaking in accordance with s.45 of the 2003 Act in the

circumstances of the case;

(d) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss 79, 80, 81 and 82 of the Criminal

Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the 2003 Act.

The Court is further satisfied that the European Arrest Warrant in this case is in the correct form, and that the requirements of the

statute with respect to correspondence and minimum gravity are met. The warrant is a prosecution type warrant and the respondent

is wanted in the Czech Republic for trial in respect of 22 offences, allegedly committed on various dates between August 2002 and

July 2003, respectively, the majority of which correspond with theft offences in this jurisdiction with the remainder corresponding to

criminal damage in this jurisdiction.

In addition the Court has had produced to it the European Arrest Warrant Act 2003 (Designated Member States) O. 2005, S.I.

27/2005 (hereinafter referred to as “the 2005 Designation Order”), and duly notes that by a combination of s. 3(1) of the 2003 Act,

and Article 2 of, and the Schedule to, the 2005 Designation Order the Czech Republic is designated for the purposes of the 2003 Act

as being a state that has under its national law given effect to the Framework Decision.

The main controversy

The sole remaining issue is therefore whether the surrender of the respondent is prohibited by Part 3 of the 2003 Act, or by the

Framework Decision (including the recitals thereto.) In that regard s. 37(1) of the 2003 Act, which is within Part 3 aforesaid provides

that a person shall not be surrendered under the 2003 Act if, inter alia, his or her surrender would be incompatible with the State’s

obligations under (a) - (i) the European Convention on Human Rights and Fundamental Freedoms or (ii) the Protocols to that

Convention (listed at s. 37(2)), or (b) his or her surrender would constitute a contravention of any provision of the Constitution

(other than for a particular stated reason which is not relevant to this case).

The respondent’s Points of Objection are primarily directed to s.37(1)(a)(i) grounds.

Relevant Points of Objection

“III The respondent has been denied his right to a trial within a reasonable period of time as required by Article 47

of the Charter of Fundamental Rights and Article 6 of the European Convention on Human Rights. As a consequence,

to continue the criminal process which is set out in the European Arrest Warrant and in respect of which the

European Arrest Warrant is a part, would be to violate the respondent's rights under the said Charter and

Convention, such that his surrender under the said warrant should be refused.

IV In respect of the respondent's rights under the Charter of Fundamental Rights and the European Convention on

Human Rights, the respondent is entitled to an effective remedy under Article 47 of the said Charter and Article 13

of the said Convention. Where the respondent's right to a trial within a reasonable period of time has been violated,

the respondent is entitled to remedy which is effective now, and this requires that his surrender be refused. The

continuation of the criminal process which was instituted against the respondent in 2003 and which led to his

remand in custody from 21st of July 2003, to 16th April 2005, and which thereafter was further delayed for

approximately 3 years through no fault of the respondent, is in breach of the respondent's rights under Article 47 of

the Charter of Fundamental Rights and Article 6 of the European Convention on Human Rights.

V. Further to IV, the respondent's surrender without a determination of his rights under Article 47 of the Charter of

Fundamental Rights under Article 6 of the European Convention by this Honourable Court would not only fail to

provide the respondent with an effective remedy, as required by the said Charter and Convention, but would fail to

respect his family and private life as protected by Article 7 of the Charter of Fundamental Rights and Article 8 of the

European Convention on Human Rights, and his rights as a Union citizen who has exercised his right to free

movement and has taken up residence and settled in this State.

VI The surrender of the respondent to Poland (sic) would violate his rights under Articles 6, 8 and/or 13 of the

European Convention on Human Rights and is thus prohibited by section 37 of the European Arrest Warrant Act

2003 as amended.”

The respondent’s initial evidence

In the first instance the respondent filed an affidavit, sworn on the 6th of October 2010 (and hereinafter referred to as “the

respondent’s principal affidavit”), in support of his objections. This affidavit contains a mixture of averments as to issues of fact and

submissions on the law. To the extent that it provides evidence as to matters of fact the respondent deposes:

“3. I was born on 10th of September 1966 in Teplice in the Czech Republic, and am a citizen of the Czech Republic.

4. I first came to Ireland in or about 2000. I am a member of the Roma ethnic group and have suffered severe

discrimination in the Czech Republic as a consequence. It is well recorded that Roma are widely discriminated

against there. I am recognisable as a member of the Roma community because of my relatively dark skin and

features. The European Arrest Warrant which is the subject matter of the herein proceedings records as a feature

which distinguishes me that I am a "member of Gypsy ethnic”. Because of the discrimination, I came to Ireland in

about 2000 and I applied for refugee status. My wife fell pregnant whilst we were in Ireland and we decided to

return to the Czech Republic in 2002 so that we were in familiar surroundings during her pregnancy.

5. On 21st July, 2003, I was placed in custody in the Czech Republic on the charges which are listed in the

European Arrest Warrant which is the subject matter of these proceedings. I was held in custody awaiting trial for a

period of more than 21 months, from 21st July, 2003, until 16th April, 2005, when I was released. During the last

three months of my time in custody, between January and April, 2005, I served a sentence imposed on me for

another offence to which I had pleaded guilty. As the European Arrest Warrant states, during 2004 I attended court

for trial on charges listed in the warrant on 27th and 28th of July, 14th September, 12th and 13th October, and 6th

and 7th December. My trial never took place and I believe that this was the fault of the court system and/or the

prosecution. The judge was assigned to determine my case was Judge Vesela. She was suspended on charges of

corruption sometime in 2004 or 2005 and, as I have stated above, I was released from custody on 16th April, 2005.

6. I say and believe that no steps were taken by the court system or the prosecution to proceed with my trial from

December, 2004, to January, 2008, when I again attended court to face trial on 21st January, 2008. For a period of

three years my trial was in abeyance. Nothing happened. By January, 2008, the case had been assigned to Judge

Krchnacek. On 21st January, 2008, my case was adjourned again through no fault of mine. I was told by the

prosecutor and the case was relisted that I would be notified by a telegram or registered letter. I have never

received such notification.

7. About two months after I was released on 16th April, 2005, I came to Ireland to look for work. Because I am

Roma I cannot find employment in the Czech Republic. I moved to Killarney with my partner, Judita, and our two

children, Ludvik (who was born on 13th August, 1991) and Lucie (who was born on the 9th August, 2002). Ireland is

now our home. Lucie is settled in school and doing well. Ludvik is registered to start a FÁS course as a waiter. We

moved here to try to provide the children with a better future. I believe they have no employment opportunities in

the Czech Republic because of our ethnicity. We now live in Killarney and regard it as our home. We do not face the

high level of discrimination that we faced in the Czech Republic. My partner's siblings also live in Killarney and we are

very close as an extended family. My partner's sister, Agatha Urbanska, lives with her husband, Josef Urbansky,

together with their three children, in Killarney. My partner's brother, Milan Duna, lives with his wife, Renata Dunova,

and their three children in Killarney. My partner's brother, Milan Polak, lives in Killarney. My partner's sister-in-law,

Irena Dunova, and her husband, Josef, live in Killarney. All my partner's family are in Ireland and have lived here for

approximately seven years.

8. I returned to the Czech Republic with my partner in September, 2007. From what we saw the situation had not

improved at all for Roma and it was still impossible to find employment. It remains our view that we face very severe

persecution in the Czech Republic and our children have no future there. Whilst in the Czech Republic, I found about

the listing of my court case for trial in January, 2008, and I duly attended in court on 21st January, 2008, for trial.

As I have said above, my trial was adjourned yet again on the 21st January, 2008 and I was told that I would be

notified if it was relisted, and I have never received such notification.

9. I returned to Ireland in March, 2008.”

“15. I am settled here in Ireland with my partner and children, and her extended family, and have resided and

worked here and regard it as my home. I worked at Molly D'Arcy's pub and restaurant in Killarney in 2005 and 2006,

and also worked in forestry for several months. Unfortunately I have been unemployed since 2008 but I am looking

for work and want to work. I have had some health problems and was admitted to Tralee hospital for one week

approximately 5 months ago and am due to receive an appointment there for further examination.”

Further information from the issuing judicial authority.

By a letter dated the 1st of November, 2010, the issuing judicial authority, i.e. the District Court in Uherskè Hradišt ì, furnished additional

information concerning this case. The letter (duly translated) states:

“1) Josef Adam was in custody from 22.7.2003 to 16.12.2004.

2) He was put to custody from the reasons given in § 67 let. a), let c) of Criminal Code of Czech Republic.

According to § 67 let. a) of criminal procedure there was a reasonable fear from escape of the accused before the

prosecution owing the fact of a threat of high punishment and the scale of criminal activity, according to § 67 let.

c) of criminal code there was a reasonable fear of further criminal activity of the accused person concerning his

scale of criminal activity, his former imprisonment and further prosecution of the accused at the courts in Czech

Republic.

3) In releasing custody no bail conditions were applied for the accused because the accused was immediately after

releasing imprisoned in other criminal case. Owing this fact it was not necessary to determine any bails when he

stayed further in prison.

4) In this case the accusation was presented on 12.5.2004, proceedings continued 27.7.2004 – 28.7.2004,

14.9.2004, 12.10.2004, 13.10.2004, 6.12.2004, 7.12.2004, further on the trial was determined on 30.10.2007,

21.1.2008 and the trials passed on 17.3.2008, 2.6.2008, then the accuseds were searched and arrest warrant was

issued on 3.9.2008 and international arrest warrant on 3.11.2009. The term between 7.12.2004 and 30.10.2007 was

influenced by leaving the judge executing the case in this Court and taking the case by a new judge.

Last time the accused came on citation to the trial on 21.1.2008. We did not succeed in calling the accused to the

trials determined on 17.3.2008, 2.6.2008 and obviously he left abroad. The accused took the calling personally to

procedure in this Court on 17. 3. 2008, gave his address for delivery Na Vinovce 1, Ústí nad Labem, Czech Republic,

there is a record on it in the document which the accused Josef Adam autographed. It was never possible to

summon him on this address, there are the records kept on unsuccessful deliveries in the document. The accused

was intensively searched, on 3. 9. 2008 arrest warrant was issued on him which enabled searching after the person

by the police in whole Czech Republic. After finding out his possible stay abroad the International and European

Arrest Warrant were issued on him.”

The respondent’s further evidence

The respondent has filed a supplemental affidavit, sworn on the 7th of December 2010 (and hereinafter referred to as “the

respondent’s supplemental affidavit”), in response to the further information supplied by the issuing judicial authority and in further

support of his objections. To the extent that it is relevant, the respondent deposes therein:

“2. I beg to refer to the letter from the Uherskè Hradišt ì District Court dated 1st November, 2010, in respect of my case. I said I

thought that I began my pre- trial custody on 21st July, 2003, but will accept that it was 22nd of July, 2003. I say that I

thought I began a sentence for another offence in January, 2005, and note that the District Court's letter implies

that it was 16th of December, 2004. I will accept that it was 16th, December, 2004, if that is what the District

Court states and apologise for my error.

3. In respect of what occurred on the 21st January, 2008, in Court, I gave my mother-in-law's address to the

authorities because that is where I was living at the time and I gave that address in good faith. However, I heard

nothing over the next five weeks and I decided to return to Ireland in early March, 2008, because conditions for

Roma had not improved in the Czech Republic. As far as I'm aware, no notice of any future court dates was

delivered to my mother-in-law's for my attention at that address after 21st January, 2008.”

At paragraph 4 of his supplemental affidavit the respondent exhibits four recent country of origin reports in support of his contention

that there is continuing, severe discrimination against Roma in the Czech Republic. He was initially claiming that he would be treated

less favourably than others if returned on account of his ethnicity. He is no longer proceeding with that. However, the Court will have

regard to the country of origin information submitted de bene esse on the basis that, on one view of it, it could potentially be

relevant in the context of that part of his claim (articulated in paragraph V of his Points of Objection) that is based upon rights under

Article 7 of the Charter of Fundamental Rights, and rights under Article 8 of the European Convention on Human Rights. He then

further deposes:

“5. My family and I have built a new life in Ireland, away from the discrimination we suffered in the Czech Republic,

and it will be deeply damaging to us if I have to return to the Czech Republic. I believe it will be extremely unfair in

circumstances where I spent a long period of time in pre- trial custody and my trial did not proceed, and then a

number of years passed and no effort was made by the authorities to advance my trial during 2005, 2006 and 2007.

I have tried to move on and build a new life, and am doing everything I can to give my family the best

opportunities.”

International instruments – relevant provisions

The Framework Decision

The 2003 Act requires to be interpreted, so far as possible, in accordance with Council Framework Decision 2002/584/J.H.A., on the

European Arrest Warrant and the surrender procedures between Member States, 2002 O.S. (L.190) 1. The following provisions of that

instrument would appear relevant to the matters at issue in the present case:

Recital (8)

“Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a

judicial authority of the Member State where the requested person has been arrested will have to take the decision on his

or her surrender.”

Recital (12)

“This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on

European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI

thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a

European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the

said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex,

race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position

may be prejudiced for any of these reasons.

This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process,

freedom of association, freedom of the press and freedom of expression in other media.”

Article 1

“1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and

surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or

executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and

in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and

fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”

The Treaty on European Union (‘the TEU’)

Article 6

“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the

European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same

legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in

Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred

to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental

Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and

Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall

constitute general principles of the Union’s law.”

Charter of Fundamental Rights

Article 6

“Everyone has the right to liberty and security of person.”

Article 7

“Everyone has the right to respect for his or her private and family life, home and communications.”

Article 51

(headed ‘Field of application’)

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due

regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall

therefore respect the rights, observe the principles and promote the application thereof in accordance with their

respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2.The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new

power or task for the Union, or modify powers and tasks as defined in the Treaties.”

Article 52

(headed “Scope and interpretation of rights and principles’)

“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and

respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made

only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to

protect the rights and freedoms of others.

2.Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and

within the limits defined by those Treaties.

3.In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of

Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by

the said Convention. This provision shall not prevent Union law providing more extensive protection.

4.In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the

Member States, those rights shall be interpreted in harmony with those traditions.

5.The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by

institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union

law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts

and in the ruling on their legality.

6.Full account shall be taken of national laws and practices as specified in this Charter.

7.The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard

by the courts of the Union and of the Member States.

Article 47

(headed ‘Right to an effective remedy and to a fair trial’)

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective

remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal

previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure

effective access to justice.

Explanations Relating to the Charter of Fundamental Rights

The ‘Explanations Relating to the Charter of Fundamental Rights’ (2007 /C303 /02) (hereinafter “the explanations”) state that the

rights in Article 6 are the rights guaranteed by Article 5 of the Convention and “the limitations which may legitimately be imposed on

them may not exceed those permitted by the Convention”. The explanations further state that the rights guaranteed in Article 7

correspond to those guaranteed by Article 8 of the Convention and “the limitations which may legitimately be imposed are the same

as those allowed by Article 8 of the ECHR.”

They also state that the first paragraph of Article 47 is based on Article 13 of the Convention but that “in Union law the protection is

more extensive since it guarantees the right to an effective remedy before a court” and that “Article 47 applies to Member States

when they are implementing Union law and does so for all rights guaranteed by Union law”. In respect of the second paragraph of

Article 47, the explanations state that it corresponds to Article 6(1) of the Convention.

The European Convention on Human Rights and Fundamental Freedoms

Article 5.3

“Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a

judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release

pending trial. Release may be conditioned by guarantees to appear for trial.”

Article 6.1

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and impartial tribunal established by law. ….”

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Some of the jurisprudence of the European Court of Human Rights in respect of Article 6 of the Convention

In guaranteeing a trial within a reasonable period of time, Article 6 underlines “the importance of rendering justice without delays

which might jeopardise its effectiveness and credibility”: H v. France (1990) 12 EHRR 74.

In criminal cases, it serves the additional function of protecting individuals from “remaining too long in a state of uncertainty about

their fate”: Stogmuller v. Austria (1979-80) 1 EHRR 155 (at paragraph 5).

In determining what constitutes “a reasonable time” for the purposes of Article 6, regard must be had to the circumstances of each

case including, in particular, the complexity of the factual or legal issues raised by the case: the conduct of the applicant and of the

competent administrative and judicial authorities; and what is “at stake” for the applicant. This was stated in Zimmerman and Steiner

v. Switzerland (1984) 6 EHRR 17, and has been reiterated many times since including in McFarlane v. Ireland, App No.31333/06,

judgment of 10 September 2010, paragraph 140, where the Court recalled “its constant case law” to that effect.

States are obliged to organise their legal systems so as to allow the courts to comply with the requirements of Article 6 : Muti v. Italy

(1994) A. 281-C, paragraph 15; Sussman v. Germany (1998) 25 EHRR 64, paragraphs 55-56; Reid v. United Kingdom (2003) 37 EHRR

211, at paragraph 77. Thus, breaches of the Convention have been found in cases where excessive delays resulted from a long-term

backlog of work in the court system coupled with the failure of the state to take remedial measures: Zimmerman and Steiner v.

Switzerland (1984) 6 EHRR 17, paragraphs 27 to 32; Guincho v. Portugal (1985) 7 EHRR 223, paragraphs 40-41.

A more rigorous standard applies when the defendant is in custody: Abdoella v. Netherlands (1992) 20 EHRR 585, paragraph 24; Reid

v. United Kingdom (2003) 37 EHRR 21, paragraph 78. Thus in Albo v. Italy (2006) 43 EHRR 27, the court emphasised the duty of

“special diligence” where the defendant is in custody, and even though the evidence against him was strong, the Court found a

violation of the special duty and therefore of Article 5(3) when some 16 months elapsed while a preliminary issue was resolved. See

also Kreps v. Poland (judgment of 26th July, 2001).

The State is responsible for the delays attributable to the court or the prosecution. Unexplained delays in the progress of court

proceedings are the responsibility of the State, and it is well established that States should organise their judicial systems so as to

avoid undue delay: e.g. Simonavicius v. Lithuania, App. No. 37415/02, judgment of June 27, 2006; Altun v. Turkey, App. No.

66354/01, judgment of October 19, 2006; and Apicella v. Italy, App. No. 64890/01, judgment of the Grand Chamber, March 29, 2006,

paragraph 72.

Even if a system allows a party to apply to expedite proceedings, this does not exempt the courts from ensuring that the reasonable

time requirement of Article 6 is complied with, “as the duty to administer justice expeditiously is incumbent in the first place on the

relevant authorities” - Mitchell and Holloway v. the United Kingdom, App No. 44808/98, 17 December 2002, cited in McFarlane v.

Ireland, App No.31333/06, judgment of 10 September 2010, paragraph 152.

In Philis v. Greece (No 2) (1997) 25 EHRR 417, a violation was found where there was a delay of five years in relatively simple

proceedings. Similarly, five years constituted a violation in Giannangeli v. Italy, (judgment of the ECHR of 5th July, 2001 - application

No 41094/98), which was a case of theft and fraud.

The parties’ submissions

Both parties to the proceedings filed helpful written submissions, which the Court was grateful to receive. The arguments contained

therein were amplified and supplemented by oral arguments presented by Counsel at the hearing. Because the main challenge in these

proceedings is being mounted by the respondent the Court saw fit to receive the respondent’s oral submissions first, the applicant

was then afforded an opportunity to reply and the respondent was in turn allowed to address the Court again in rejoinder.

The respondent’s submissions

In summary, the respondent challenges his surrender on the basis of the failure by the Czech prosecution authorities and/or court

system to complete his trial within a reasonable period of time. The respondent contends that this failure is in breach of the his rights

under Article 47 of the Charter of Fundamental Rights (‘the Charter’) and Article 6 of the European Convention on Human Rights (‘the

Convention’). He urges on the Court that to continue the criminal process of which the European Arrest Warrant is a part, would

violate the respondent’s rights under the Charter and Convention. He further contends that he is entitled to an effective remedy

under Article 47 of the Charter and Article 13 of the Convention and, it is submitted, this requires that his surrender, on foot of the

European Arrest Warrant, be refused.

It was submitted that the key dates in this case are the following:

(a) the respondent was placed in pre-trial custody on 22nd July, 2003;

(b) whilst in pre-trial custody, the respondent attended court on 12th May, 27th and 28th July, 14th September, 12th

and 13th October, and 6th and 7th December, 2004, but his trial never took place;

(c) the respondent’s pre-trial custody ended (at the earliest) on 16th December, 2004, a period of one year and five

months;

(d) the respondent remained in prison on conviction in respect of another matter until 16th April, 2005, during which time

his trial still did not take place;

(e) nothing appears to have occurred in respect of his trial in 2005, 2006 and 2007;

(f) the respondent attended for trial on 21st January, 2008, and, again his case was adjourned.

Accordingly, a period of exactly four years and six months passed from the respondent’s arrest on 22nd July, 2003, to his

final court appearance on 21st January, 2008, during which time he spent one year and five months in pre-trial custody.

He did not receive a trial during this four and a half year period and that was through no fault of his.

The respondent has submitted that the failure of the Czech Republic to complete the respondent’s trial during the period from 22nd

July, 2003, to 21st January, 2008, a period of four years and six months, breached the respondent’s right under Article 47 of the

Charter and Article 6 of the Convention to a trial within a reasonable period of time. He contends that this was particularly so

because he was in pre-trial custody for the first one year and five months of the period, during which time the Czech authorities were

under a duty to expedite the trial.

It was further argued that the Czech Republic has not put in issue the respondent’s averment that the delay was due solely to the

Court system and/or the prosecuting authorities. The respondent submitted that he does not have to show prejudice, and it falls on

the Czech authorities, and in the respondent’s case the Uherskè Hradišt ì District Court, to show reasonable cause for the delay. No reasonable cause

has been offered by the Czech authorities.

The respondent argued that whilst the Supreme Court has stated that ‘delay’ is a matter which should be dealt with by the requesting

State at trial, and not by the extraditing State, this has been based on the premise that the question of whether or not a fair trial is

possible is more efficiently and conveniently decided and debated before the courts of the country where the accused is to be tried:

Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669. However, it was submitted that the present respondent’s

case should be distinguished because the issue of delay is a net one: it is whether the failure to complete the respondent’s trial

during a period of four years and six months is such as to constitute a violation of Article 7 of the Charter and Article 6 of the

Convention. The respondent says that this Court can determine this by reference to the jurisprudence of the European Court of

Human Rights in respect of Article 6 of the Convention.

The respondent has further sought to distinguish Stapleton on the basis that the case that was made on behalf of the respondent in

Stapleton was based on the accused’s constitutional rights in respect of a fair trial. In the present respondent’s case, the argument

in respect of delay is based on the Charter and the Convention.

The respondent argues that in order to establish a breach of Article 6(1) on the ground of excessive delay, it is unnecessary to show

that the accused has suffered prejudice in the preparation or presentation of his defence. He has contended that the right to trial

within a reasonable time is a free-standing right safeguarded by Article 6(1). In support of this the Court was referred to Porter v.

Magill [2002] 2 AC 357, a decision of the U.K. House of Lords where Lord Hope of Craighead stated (at paragraphs 108 & 109 of the

report):

“108. I would also hold that the right in article 6(1) to a determination within a reasonable time is an independent

right, and that it is to be distinguished from the article 6(1) right to a fair trial. As I have already indicated, that

seems to me to follow from the wording of the first sentence of the article which creates a number of rights which,

although closely related, can and should be considered separately. This means that it is no answer to a complaint

that one of these rights was breached that the other rights were not. To take a simple example, the fact that the

hearing took place in public does not deprive the applicant of his right to a hearing before an independent and

impartial tribunal established by law.

109. I would respectfully follow Lord Steyn's observation in Darmalingum v The State [2000] 1 WLR 2303 about the

effect of section 10(1) of the Constitution of Mauritius when he said that the reasonable time requirement is a

separate guarantee. It is not to be seen simply as part of the overriding right to a fair trial, nor does it require the

person concerned to show that he has been prejudiced by the delay. In Flowers v The Queen [2000] 1 WLR 2396 a

differently constituted Board, following Bell v Director of Public Prosecutions [1985] AC 937, held that prejudice was

one of four factors to be taken into account in considering the right to a fair hearing within a reasonable time in

section 20(1) of the Constitution of Jamaica. In the context of article 6(1) of the Convention however the way this

right was construed in Darmalingum v The State seems to me to be preferable. In Crummock (Scotland) Ltd v HM

Advocate 2000 SLT 677, 679a -b , Lord Weir, delivering the opinion of the High Court of Justiciary, said that under

article 6(1) it was not necessary for an accused to show that prejudice has been, or is likely to be, caused, as a

result of delay. The article 6(1) guarantee of a hearing within a reasonable time is not subject to any words of

limitation, nor is this a case where other rights than those expressly stated are being read into the article as implied

rights which are capable of modification on grounds of proportionality: see Brown v Stott [2001] 2 WLR 817, 851b -

e ; R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, para 90. The only question is whether, having

regard to all the circumstances of the case, the time taken to determine the person's rights and obligations was

unreasonable.”

The respondent further relies upon the jurisprudence of the Irish Supreme Court with respect to blameworthy prosecutorial delay and

contends that this reflects an acceptance in this jurisdiction that the right to a trial within a reasonable time is not just an aspect of

the right to a fair trial in the narrow sense of the ability of an accused to defend himself, but that it is an independent and discrete

right that may be invoked in other appropriate circumstances such as where the delay has caused and/or is causing, anxiety and

concern to the accused, or where the accused is being subjected to pre-trial loss of liberty. He relies in particular on the decisions in

P.M. v Malone [2002] 2 I.R. 560 and P.M. v Director of Public Prosecutions [2006] 3 I.R. 172.

In P.M. v Malone, Keane C.J. stated (at p.581):

“Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary

stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there

is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay.

On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences.

In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the

delay.”

That approach was reiterated in P.M. v Director of Public Prosecutions where Kearns J, speaking for a unanimous court, cited the

passage just quoted from the judgment of Keane C.J in P.M v Malone. Having done so, he continued:

“I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone [2002] 2 I.R. 560 is the

appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should

result in an order of prohibition. It means that an applicant for such relief must put something more into the balance

where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most

cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial.

Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing

exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather

than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition

of a trial”

The respondent submits that in Minister for Justice, Equality and Law Reform v. Stapleton the Supreme Court was concerned with a

respondent who was claiming that he should not be surrendered because there was a real risk that his trial for fraud offences would

not be fair on account of blameworthy prosecutorial delay. He submits that although the Supreme Court in Stapleton held that the

issue as to whether or not Mr Stapleton could get a fair trial could be more efficiently and conveniently decided and debated before

the courts of the country where he was to be tried, that decision does not bind this court in terms of the issue that it now has to

decide. The basis for this submission is that the Supreme Court in Stapleton was only concerned with the right to a trial within a

reasonable time an aspect of the right to a fair trial in the narrow sense of the ability of an accused to defend himself, and that the

principles enunciated therein do not necessarily have any wider application, particularly in cases such as the present case where the

right is invoked as a stand alone right to protect an interest or interests other than the ability of the accused to defend himself.

The applicant also contends that the decision of the Supreme Court in Minister for Justice, Equality and Law Reform v Hall [2009]

IESC 40 supports his case. Denham J, giving the unanimous judgment of the Court stated:

“18. The learned High Court judge was correct to consider and apply The Minister for Justice, Equality and Law

Reform v. Stapleton [2008] 1 I.R. 649. Stapleton states the appropriate legal principles to be applied.

19. The extradition system introduced pursuant to the European Arrest Warrant Act 2003 has established an

entirely new scheme of extradition. The Act of 2003 requires to be interpreted, so far as possible, in accordance

with Council Framework Decision 2002/584/J.H.A., on the European Arrest Warrant and the surrender procedures

between Member States, 2002 O.S. (L.190) 1, "the Framework Decision". This scheme is based on mutual trust and

cooperation and the mutual recognition of judicial decisions in the States of the European Union. Consequently

when a court makes a decision under the Act of 2003, in accordance with the Framework Decision, it does so on

the assumption that the courts of the requesting state will respect fundamental rights and freedoms. Therefore,

issues such as delay and the right to a fair trial are more appropriately raised in the requesting state, if there is a

remedy available in that state. There is no doubt that in the United Kingdom there are procedures to raise the issue

of delay, of prosecutorial delay, and the right to a fair trial. It is more appropriate that these issues be raised in the

jurisdiction of trial.

The Court is required to have regard to and to balance the constitutional rights of a requested person with the

obligations under the European Arrest Warrant scheme of the Framework Decision.

20. The High Court held:-

‘It is quite clear by now that an objection based on delay is not one which this Court can regard as a ground which

prohibits surrender to the issuing state, and that any fears that the respondent has that he cannot now obtain a fair trial

are matters to be ventilated in the courts of the issuing state, and not here. This follows clearly from the judgment of

Fennelly J. in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 I.R. 669. It would be inappropriate for

this Court therefore to examine and express any view on whether the matters referred to by the respondent could amount

to a sufficient prejudice to prohibit his trial, since if at all these will be the subject of a determination before a court in

the issuing jurisdiction.’

21. There may be situations where a court in this requested State would consider the issue of a delay, it would

depend on the circumstances. However, in general, issues such as prosecutorial delay and its consequences, are

more appropriately litigated in the requesting state, which is the state of trial. This presumption is based on the

existence of remedies, such as access to judicial review or a process to review an allegation of abuse of process. It

is grounded on the foundation of mutual trust of the European Arrest Warrant scheme. It all depends on the

circumstances of the case.”

The applicant suggests that the decision in Hall makes it clear that the Stapleton principle, namely that “issues such as delay and the

right to a fair trial are more appropriately raised in the requesting state” is qualified by the words “if there is a remedy available in that

state”. This was reiterated by Denham J when she said “[t]his presumption is based on the existence of remedies” The applicant

submits that in the absence of evidence as to the existence in the Czech Republic of an effective remedy for breach of his right to a

trial within a reasonable time, he ought not to be surrendered.

In further support of his case, the respondent has referred the Court to the judgment of the European Court of Human Rights in

Giannangeli v. Italy, App No 41094/98, 5th July, 2001, in which that Court held that a period of five years, one month and twenty-

three days to determine the charge against the applicant was excessive, even though some of the delay was attributable to the

unavailability of the applicant’s Counsel and a lawyers’ strike. The Court emphasised that Article 6(1) “imposes on Contracting States

the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation

to hear cases within a reasonable time (Portington v. Greece judgment of 23 September 1998, Reports 1998-VI, p. 2633, § 33)”.

The respondent submitted that in the instant case the Czech authorities have offered no justification for the delay in bringing his

case to trial. In particular, no explanation is given as to why the respondent was allowed to spend one year and five months in

custody during which time his case was not determined. The respondent suggests that although it appears to be accepted, at least

implicitly, by the applicant that part of the cause of the delay was the suspension of a judge, no comment is made on this aspect of

the matter by the Czech authorities beyond stating “[t]he term between 7.12.2004 and 30.10.2007 was influenced by leaving the

judge executing the case in this Court and taking the case by a new judge.” It was submitted that the Czech authorities were under

a duty to overcome this difficulty and proceed expeditiously with the respondent’s trial. The respondent also submitted that it was

not acceptable for nothing to happen in 2005, 2006 and 2007. The respondent contends that in those circumstances, and against

that background, his rights under Article 6 were clearly breached when, on 21st January, 2008, the Czech authorities were still unable

to proceed with his trial.

It has been urged upon the Court that the requirement in the Charter and the Convention that the respondent must have access to

an ‘effective remedy’ requires, that he must be able to challenge his surrender now, in the State in which he resides, because of the

serious ramifications for his liberty, his fair trial rights under the Charter and the Convention, and his family and private life rights, if he

is surrendered. The respondent is settled in Ireland with his family for the reasons set out in his affidavit, which includes the

discrimination faced by him as a Roma in the Czech Republic.

It was further submitted that if the respondent has already been denied his right to a trial within a reasonable period of time, he

should not be surrendered to the Czech Republic. Where there has been a breach of Article 6.1 of the Convention, it is for the

national courts to fashion their own remedy and, it was submitted, refusal to surrender can be the only “effective” remedy in the

circumstances of the case.

The respondent has sought to emphasise that s. 37 of the 2003 Act provides that a person shall not be surrendered if his surrender

“would be incompatible with the State's obligations under the Convention”.

The respondent also relies upon Soering v. United Kingdom, 7th July, 1989, Application number 14038/88, as supporting

his case. In that matter the European Court of Human Rights did not exclude the possibility that an issue might be raised

under Article 6 in an extradition case, but suggested that the denial of a fair trial would need to be flagrant. It kept open

the possibility of the breach having already occurred, by referring to "circumstances where the fugitive has suffered ... a

flagrant denial of a fair trial in the requesting country". The case argued by the applicant in respect of Article 6 was that

the restrictions on access to legal aid in Virginia meant that he would not be able to secure legal representation as

required by Article 6(3)(c) if returned there. The European Court of Human Rights held:

“113. The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a

democratic society (see, inter alia, the Colozza judgment of 12 February 1985, Series A no. 89, p. 16, §32). The

Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in

circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting

country. However, the facts of the present case do not disclose such a risk.

Accordingly, no issue arises under Article 6 § 3 (c) in this respect.”

It was submitted on behalf of the respondent that in his case he has suffered a flagrant denial of one of the components of a fair

trial, as protected by Article 6, the right to a trial within a reasonable period of time.

The respondent has submitted that if this Court gives effect to the European Arrest Warrant issued by the Uherskè Hradišt ì District

Court the result will that the respondent will be arrested, detained and then returned to the Czech Republic where he may be further detained and where he will

be apart from his family who have now moved to and settled in this State. It is urged that if the respondent’s right to a trial within a

reasonable period of time has already been violated he must be permitted to invoke his rights under Article 6 of the Convention now,

in order to prevent any further continuation of the criminal process against him. In this context the Court’s attention was drawn to

Article 13 of the Convention (mirrored in Article 47 of the Charter.) and the requirement therein for an ‘effective remedy before a

national authority’. The respondent says the obligation must be interpreted in this way to be consistent with Recital 8 of the

Framework Decision, which expressly provides that the execution of a European Arrest Warrant must be decided upon by “a judicial

authority of the Member State where the requested person has been arrested.” Moreover section 37(1) of the 2003 Act expressly

envisages reliance being placed upon the provisions of the Convention before the Irish High Court.

The Court’s attention was also drawn to Vilvarajah v. United Kingdom (1991) 14 EHRR 248, 291 wherein at paragraph 122, the

European Court of Human Rights stated:

“122. Article 13 guarantees the availability of a remedy at national level to enforce the substance of the Convention

rights and freedoms in whatever form they may happen to be secured in the domestic legal order (ibid.). Its effect

is thus to require the provision of a domestic remedy allowing the competent "national authority" both to deal with

the substance of the relevant Convention complaint and to grant appropriate relief (see, inter alia, the above-

mentioned Soering judgment, Series A no. 161, p. 47, para. 120). However, Article 13 does not go so far as to

require any particular form of remedy, Contracting States being afforded a margin of discretion in conforming to

their obligations under this provision. Nor does the effectiveness of a remedy for the purposes of Article 13 depend

on the certainty of a favourable outcome for the applicant (see the Swedish Engine Drivers’ Union judgment of 6

February 1976, Series A no. 20, p. 18, para. 50).

Relying upon this quotation from Vilvarajah , the respondent submitted that it is a matter for this Court to address the substance of

the respondent’s complaint under Article 6 of the Convention and, if it finds that the respondent’s rights under the Article have been

breached, to grant appropriate relief in accordance with Irish law, and notably section 37(1) of the 2003 Act. It is only where no

effective remedy is provided as a matter of domestic law that a person is left having to seek just satisfaction from the European

Court of Human Rights in compensation for the breach which has already occurred.

It was further argued that the purpose of section 37 of the European Arrest Warrant Act 2003 is to prevent a breach of a person’s

Convention rights, as distinct from providing for compensation after a breach has occurred. The ordinary remedy in domestic law

where an unlawful act is continuing is to make an order which will bring the act to an end. An appropriate remedy under domestic law

would be an order prohibiting the trial. In the circumstances of the respondent’s case, the appropriate order is one refusing to

execute the European Arrest Warrant.

It was also submitted that, in the circumstances of this case, the respondent’s right to respect for his private and family life, as

protected by Article 7 of the Charter and Article 8 of the Convention, would be breached by his forcible extradition to the Czech

Republic. It was emphasised that he has resided for several years in this State with his wife and children. They are now settled in the

State. The respondent submitted that in light of the delay by the Czech authorities between 2004 and 2008, and the fact that the

respondent spent fifteen months in pre-trial detention, and the nature of the charges, his surrender would amount to a

disproportionate interference with his private and family life rights.

It has properly been brought to the court’s attention that in the recent decision of the UK Supreme Court in Norris v. Government of

the United States of America, 24th February, 2010, [2010] UKSC 9, Lord Phillips held that a very high threshold would have to be

crossed in order to prevent an extradition on the ground of a breach of Article 8 rights. He stated (at paragraph 56) that it was “only

if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent

upon extradition will be other than proportionate to the objective that extradition serves.” However, the respondent has submitted

that in his case there are exceptionally compelling features, not least the considerable and unexplained delay in his prosecution by the

Czech authorities, and the significant period of pre-trial incarceration that he has already been subjected to, to justify this Court in

holding that his Article 8 rights will be violated if he is forcibly returned to the Czech Republic.

The applicant’s submissions

It was submitted on behalf of the applicant that whether there has been a breach of the respondent’s right to a hearing within a

reasonable time as an aspect of his right to a fair trial pursuant to Article 6 of the Convention is, on the established jurisprudence, ‘a

matter to be assessed in the light of the particular circumstances of the case…, in particular the complexity of the case and the

conduct of the applicant and the authorities dealing with the case’; Giannangeli v Italy, (41094/98), July 5, 2001, ECHR. It is a not a

‘net’ issue to be determined solely by reference to the lapse of time at issue, as the respondent’s submissions suggest.

Moreover, the applicant says that the respondent’s assertion of a breach of Article 47 of the Charter is misconceived. The Charter

applies only to implementation measures taken by Member States after the Charter came into effect, namely, 1 December 2009 when

the Lisbon Treaty entered into force. Even if that were not so, the considerations identified at (a) above, in relation to Article 6 of

the Convention, would apply with equal force to Article 47 of the Charter.

The applicant has submitted that it is well-settled law that the question of whether a fair trial for the respondent is possible can be

more efficiently and conveniently debated before the courts of the country where the respondent is to be tried. Those Courts would

have a clearer picture of precisely what evidence is available and the issues likely to arise; Minister for Justice, Equality & Law Reform

v Stapleton [2008] 1 I.R. 669. The applicant contends that the same is true with respect to issues such as whether the applicant’s

expeditious trial rights have been breached, and if so, as what remedy, if any, would be effective and appropriate for him in the

circumstances of the case.

The applicant has further submitted that the corner stone of the entire system of the European arrest warrant mechanism is the

principle of mutual recognition of judicial decisions, judicial co-operation and mutual trust of the legal systems of other member

states. This principle of mutual recognition and confidence applies not only to the decision of the judicial authority of the issuing

member state in issuing the arrest warrant but also encompasses the system of trial in the issuing member state. The courts of the

executing member state, when deciding whether to make an order for surrender have to proceed on the assumption that the courts in

the issuing member state will respect human rights and fundamental freedoms. Again the case of Minister for Justice, Equality & Law

Reform v Stapleton [2008] 1 I.R. 669 is relied upon in support of this submission.

It was further urged upon the Court that there is nothing to suggest that the respondent does not have available to him in the Czech

Republic an effective remedy in respect of any violation of his Convention rights as may be found to have occurred within the system

of trial in that state. To suggest that the respondent must have available to him a remedy in respect of any violation of his

Convention rights by one Convention state in any other Convention state is a proposition for which there is no authority and,

furthermore, if accepted would promote unacceptable forum shopping. It would also entirely undermine the dictum of the Supreme

Court in Stapleton that the issue can be more effectively and conveniently debated before the courts of the country where the

respondent is to be tried, and would instead require that debate to be conducted before a court with a less clear picture of the

evidence available and the issues arising. Further, it would amount to a breach of the clearly established principle that this Court is

obliged to interpret provisions of the European Arrest Warrant Act 2003, as amended (“the Act”), so far as possible, in the light of

and so as not to be in conflict with provisions of the Framework Decision, the corner stone of which is, of course, the principle of

mutual recognition of the judicial decisions and mutual trust of the legal systems of the other Member States; Case C-105/03 Criminal

proceedings against Pupino [2005] ECR I-5285

The applicant says that there is nothing to suggest, in advance of an appropriate assessment to be conducted before the courts of

the requesting state that the only effective (or appropriate) remedy for any violation of the respondent’s right to a trial within a

reasonable time as may be found to have occurred is the effective prohibition of the respondent’s trial, which is in substance the

relief the respondent seeks from this court.

In response to the respondent’s submissions the applicant asserts that the respondent’s contention that ‘in order to establish a

breach of Article 6(1) of the Convention on the ground of excessive delay, it is unnecessary to show that the accused has suffered

from prejudice in the preparation or presentation of his defence’, is wrong in the circumstances of this case. The applicant submits

that Porter v Magill, upon which the respondent relies, was a case dealing with civil proceedings, and it is suggested that the leading

authority on criminal proceedings is the subsequent decision of the House of Lords in A-G’s Reference (No 2 of 2001) [2003] UKHL 68;

[2004] 2 A.C. 72; [2004] 1 All E.R. 1049, in which the majority held that, where a breach of the Article 6 reasonable time requirement

is found in criminal proceedings, the appropriate remedy will depend on the stage which the proceedings have reached, but, if the

breach is found before the hearing, it will be appropriate to stay the proceedings only where continuing the trial would result in an

unfair hearing or would otherwise be unfair to the defendant. The applicant submits that the respondent in this case has made no

suggestion, much less adduced any evidence, of any real or substantial risk of an unfair trial in respect of the charges he faces

attributable to the delay of which he complains.

In seeking to address the issue of the of the respondent’s rights under Article 8 of the Convention, the applicant has drawn this

Court’s attention to the case of Minister for Justice, Equality & Law Reform v Gheorghe, (unreported, Supreme Court, 18th November

2009). In that case, the surrender of a married couple was sought in circumstances where they had a family in Ireland. The family

circumstances were that they had a Romanian born son who travelled with them to Ireland in 2000 and were joined in Ireland in April

2002 by their Romanian-born daughter. A son and a daughter respectively were born to them in Ireland in 2004 and 2005. Their

children attend school in Ireland. They asserted that they and their family were fully integrated in Ireland and that they had been

granted legal residence in the State. In the High Court, Peart J found that their surrender did not breach their family rights under

Article 41 of the Constitution or Article 8 of the European Convention on Human Rights. This was upheld in the Supreme Court where

Mr Justice Fennelly stated:

“Like Peart J, I would also dismiss the third ground of appeal in limine. It is a regrettable but inescapable incident of

extradition in general and, as in this case, surrender pursuant to the system of the European arrest warrant, that

persons sought for prosecution in another state will very often suffer disruption of their personal and family life.

Some states have historically refused to extradite their own nationals, but that is a special case. The Framework

Decision expressly provides that, in Article 1, that it does not ‘have the effect of modifying the obligation to respect

fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union.’ No

authority has been produced to support the proposition that surrender is to be refused where a person will, as a

consequence, suffer disruption, even severe disruption of family relationships.”

The Court’s decision:

This Court accepts the respondent’s contention that he has a right to a trial within a reasonable time both under Article 47 of the

Charter and/or under Article 6 of the Convention. The Court disagrees with the applicant that the respondent’s assertion of a breach

of Article 47 of the Charter is misconceived. Although the Charter applies only to implementation measures taken by Member States

after the Charter came into effect, namely, 1 December 2009 when the Lisbon Treaty entered into force, the “explanations”

document, to which the Court is entitled to have regard, makes it clear that the requirement to respect fundamental rights defined in

the context of the Union extends to all instances where a member state is acting “in the scope of Union law” In the course of his oral

submission to the Court, Mr Anthony Collins S.C., representing the respondent, urged upon the court:

“ ..[The “explanations” document] does not say there nor could it say as a matter of logic that the Charter only

applies to legislation, community legislation, or legislation adopted after it came into force. What it is saying is that

when the Member State acts in the sphere of Union law it is bound by the Charter. So what is this member State

doing here? The Minister has come before you, Judge, seeking to surrender the respondent to the Czech Republic. It

is in any ordinary sense of the word acting in the scope of Union law.”

The Court accepts this submission as being correct. However, the Court is also of the view that the issue is to a large extent

academic in the circumstances of this case because the respondent’s right to an expeditious trial is more or less identical regardless

of whether it derives from Article 47 of the Charter, or from Article 6 of the Convention. Moreover while Article 47 of the Charter

speaks expressly of “the right to an effective remedy” where “rights and freedoms guaranteed by the law of the Union are violated”,

Article 13 of the convention covers similar ground in guaranteeing “an effective remedy before a national authority” for “everyone

whose rights and freedoms … are violated.”

The Court considers that the applicant is correct in his submissions that whether there has been a breach of the respondent’s right to

a hearing within a reasonable time is not a ‘net’ issue to be determined solely by reference to the lapse of time involved, as the

respondent’s submissions suggest. While the evidence may be suggestive, perhaps even strongly suggestive, of blameworthy

prosecutorial delay in relation to the case against the respondent before the Czech courts, the issue as to whether or not there has

in fact been a breach of the respondent’s expeditious trial right remains ‘a matter to be assessed in the light of the particular

circumstances of the case…, in particular the complexity of the case and the conduct of the applicant and the authorities dealing

with the case’; Giannangeli v Italy, (41094/98), July 5, 2001, ECHR. As the ECHR jurisprudence indicates, what is “at stake” for

respondent is also relevant. It seems to this Court that the Courts of the requesting State are in a very much stronger position than

this Court to make the necessary assessment.

However, even if this Court could be satisfied that the respondent’s expeditious trial right has been breached, it does not

automatically follow, as the respondent seems to suggest, that he is entitled to look to this Court in the first instance to provide him

with an effective remedy; and that that remedy must be the effective prohibition of his trial notwithstanding that no case is being

made of any prejudice to his ability to defend himself, for that is what a refusal to surrender him on the grounds of breach of his

expeditious trial right would amount to in the circumstances of this case.

The Supreme Court has said in Minister for Justice, Equality and Law Reform v Hall [2009] IESC 40 that “issues such as delay and the

right to a fair trial are more appropriately raised in the requesting state, if there is a remedy available in that state.” There is “a

presumption” “based on the existence of remedies” that issues such as prosecutorial delay and its consequences, are more

appropriately litigated in the requesting state, which is the state of trial. The respondent must look in the first instance to the courts

of the Czech Republic for his remedy, assuming there is an effective remedy available to him in that state. However, it is also implicit

in Denham J’s judgment, that in the event of no effective remedy being available in the requesting state to a person in the position of

the respondent him then it might, depending on the circumstances, be appropriate for the Irish courts to seek to provide him with an

effective remedy.

This Court considers that it is not enough for the respondent to simply “raise an issue” as to whether he would be able to avail of an

effective remedy before the courts of the Czech Republic, and to suggest that having raised the issue it was therefore incumbent

upon the applicant to put such evidence before the Court as would entitle it to be satisfied that the respondent is in fact able to

seek an effective remedy before those courts. As far as this Court is concerned he must do a great deal more than that.

In circumstances where both Ireland and the Czech Republic are members of the European Union and are obliged by the Charter to

respect fundamental rights when acting “in the scope of Union law”; and also in circumstances where both Ireland and the Czech

Republic are signatories to, and have ratified, the Convention; it is strongly to be presumed by this Court that the respondent will

have available to him an effective remedy before the Courts of the Czech Republic in respect of any historical, or continuing,

breaches of his expeditious trial right. That such a presumption should operate is consistent in this Court’s view with the the principles

and objects recited in the preamble to the framework decision when it refers to mutual recognition of judicial decisions, judicial

cooperation and a high level of confidence between member states.

Further, it is also consistent with the following remarks from the judgment of Fennelly J in Minister for Justice, Equality and Law

Reform v Stapleton [2008] 1 I.R. 669, where he stated (at p. 689):

“[69] The principle of mutual recognition applies to the judicial decision of the judicial authority of the issuing

member state in issuing the arrest warrant. The principle of mutual confidence is broader. It encompasses the

system of trial in the issuing member state. The Court of Justice has ruled, in its recent decision in Advocaten voor

de Wereld v. Leden van de Ministerrad (Case C-303/05) (Unreported, European Court of Justice, 3rd May, 2007)

that the issuing member state, as is "stated in article 1(3) of the framework decision, must respect fundamental

rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union".

[70] It follows, in my view, that the courts of the executing member state, when deciding whether to make an

order for surrender must proceed on the assumption that the courts of the issuing member state will, as is required

by Article 6.1 of the Treaty on European Union, "respect human rights and fundamental freedoms". Article 6.2

provides that the Union is itself to "respect fundamental rights, as guaranteed by the European Convention on

Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the

member states, as general principles of community law".

[71] Article 1.3 of the Framework Decision, read with the recitals to the framework decision and, as further

explained by the Court of Justice in the decision in Advocaten voor de Wereld v. Leden van de Ministerrad (Case C-

303/05) (Unreported, European Court of Justice, 3rd May, 2007) imposes these obligations, which in turn impose the

obligations found in article 6 of the Convention on each issuing member state when seeking the surrender of a

person and, necessarily in any subsequent trial process.”

However, as Murray C.J. has stated in his judgment in Minister for Justice, Equality & Law Reform v Altaravicius [ 2006] 3 I.R. 148 (at

p. 160):

“[42] That is not to say .... that the courts are prevented from examining applications for surrender with a view to

being satisfied that relevant legislation has been complied with and personal rights which are guaranteed are not

infringed. But they do so with a benefit of a presumption that the issuing state complies with its obligations. If there

is cogent evidence to the contrary then an issue may arise. A mere assertion of non-compliance or the mere raising

of a possibility of non-compliance, which is the case here, is not sufficient to dislodge the presumption of

compliance. If that were the case it would in effect convert the presumption of compliance into a presumption of

non-compliance.”

That qualification is echoed in the following further remarks of the Chief Justice in Minister for Justice, Equality & Law Reform v

Brennan [2007] 3 I.R. 732 (at p. 744). He commented:

“That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to

consider the circumstances where it is established that surrender would lead to a denial of fundamental or human

rights. There may well be egregious circumstances, such as a clearly established and fundamental defect in the

system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect

such rights.”

In circumstances where a presumption exists that the courts of the Czech Republic can provide an effective remedy for the

respondent, the respondent bears what is, in effect, an evidential burden to provide this Court with cogent evidence tending to

suggest that that might not be so, before this Court would be put on enquiry as to what remedies might or might not be available to

the respondent before the courts of the Czech Republic. The Court considers that the view that it has just expressed is consistent

with the view expressed in Stapleton, and reiterated only days later by Finnegan J in the Supreme Court in Minister for Justice,

Equality & Law Reform v Gardener [2007] IEHC 35, to the effect that “the issue of delay is one to be dealt with in the court of trial

unless the respondent can establish by clear and cogent evidence a clear and fundamental defect in the system of justice of the

requesting state such that the refusal of the application for surrender is necessary to protect his …rights.”

I am satisfied that in the present case the respondent has not discharged the evidential burden upon him, and that he has not put

before this Court any evidence to displace the presumption that an effective remedy will be available to him before the Courts of the

requesting state in respect of any historical or possible continuing breaches of his expeditious trial right. For example, it would have

been open to him to put before the Court an affidavit of a Czech lawyer setting out what remedies might or might not be available to

him before the Czech courts. Moreover, in the absence of clear and cogent evidence suggesting the non availability of an effective

remedy, or even a possible problem in obtaining the necessary information, this Court would not be justified in exercising its powers

under s. 20(1) of the 2003 Act to request yet further information from the issuing judicial authority.

In further regard to the respondent’s contention that he is entitled to look to this Court in the first instance to provide him with an

effective remedy I should also say that my understanding of the Supreme Court’s decision in Stapleton is that that Court rejected the

view that had been expressed by the learned High Court judge in that case to the effect that “if the respondent enjoys a convention

and a constitutional right to a trial of offences with which he is charged within a reasonable time, that is a right which he is entitled

to invoke and have protected on the first occasion on which it becomes relevant for argument, and that it is not a matter to be

postponed so that it can be ventilated at some date in the future in another country, and after the respondent has been returned in

custody to that place.” In expressing the Supreme Court’s rejection of that view, Fennelly J remarked (at pp 689/690):

[71] “…….I am satisfied that the trial judge was mistaken in holding that there was ‘no meaningful distinction to be

drawn between surrendering the respondent to the requesting state to face a trial which would be either unfair or

not within a reasonable time, and him actually facing such a trial’.

Equally, he was mistaken in holding that the respondent was entitled to have his right to a speedy trial:-

‘…protected on the first occasion on which it becomes relevant for argument, and that it is not a matter to be

postponed so that it can be ventilated at some date in the future in another country, and after the respondent has

been returned in custody to that place.’”

This Court has yet a further difficulty with the case being made by the respondent. He appears to be making the case that at this

stage the only remedy that would be “effective” in his case is that he should be relieved of the burden of undergoing a trial, i.e. that

his surrender should be refused. As previously stated such an order would achieve the same practical result as an order prohibiting his

trial, which is the relief invariably sought in delay cases brought before the Irish Courts.

It is certainly the case that in this jurisdiction, an applicant seeking to prohibit his trial on the grounds of blameworthy prosecutorial

delay, who is not making the case that his ability to defend himself has been prejudiced on account of the delay, “must put something

more into the balance …..to outweigh the public interest in having serious charges proceed to trial.” per Kearns J in P.M. v Director of

Public Prosecutions [2006] 3 I.R. 172. Although in his making his case to the Court the respondent has sought to rely upon roots that

he claims to have put down in this country, and also relies upon his Article 8 rights, by way of putting something more into the

balance, and I will address this separately below, there has been no engagement at all with the public’s right to prosecute. The Court

finds it troubling that the respondent’s case takes no account of the Czech public’s right to prosecute offenders in the Czech

Republic. In T.H. v Director of Public Prosecutions [2006] 3 I.R. 520, Fennelly J alluded to the fact that the ECHR recognises the

public interest in prosecuting crime. Commenting in that case on the jurisprudence of the European Court of Human Rights with

respect to breaches of the expeditious trial right guaranteed in Article 6(1) of the Convention, and in particular on the import of Barry

v Ireland, Fennelly J said:

“It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human

Rights. The court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most

surprising if a judgment of that court holding that the prosecuting authorities were"partially or completely

responsible" for certain periods of delay had the automatic consequence that a prosecution had to be halted. Such

a conclusion would, in any legal system, call for some consideration of the public interest in the prosecution of

crime. We know, of course, from other parts of the caselaw of the court that it does recognise the public interest in

prosecuting crime (see Kostovski v. Netherlands (1989) 12 E.H.R.R. 434 and Doorsen v. Netherlands (1996) 22

E.H.R.R. 330). Thus, the decision of the court leads to a monetary award. It has no consequence for the pending

prosecution. In brief, the decision in Barry v. Ireland (App No. 18273/04) (Unreported, European Court of Human

Rights, 15th December, 2005) adds nothing to the applicant's claim to have his trial stopped. The applicant has not,

at any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such

cases, the principal objective has been to seek to prevent his trial from proceeding.”

It seems to this Court that it is a far reaching proposition to suggest that the only potentially effective remedy available to the

respondent at this stage is that he should be relieved of the burden of undergoing a trial, i.e. that his surrender should be refused.

However, even if that were possibly the case, any Court faced with considering whether or not he should be relieved of the burden of

undergoing a trial, whether by refusing to surrender him, or in the case of the courts of the requesting state by prohibiting or staying

his trial, should take into account not just his interests but also the public interest in the prosecution of crime. In effect, a balancing

exercise needs to be conducted similar to that suggested by Keane C.J in P.M. v Malone [2002] 2 I.R. 560 and endorsed by Kearns J

in P.M. v Director of Public Prosecutions [2006] 3 I.R. 172. While theoretically such a balancing exercise could be conducted by this

Court, it stands to reason that the courts of the requesting state would be in a much better position to do so. To paraphrase

Fennelly J in Stapleton it is demonstrably more efficient and more convenient that issues arising from a balancing of those interests of

a particular individual that are protected by his expeditious trial right with the public interest in the prosecution of crime should be

debated before the courts of the country where that individual is wanted for trial.

I wish to return for a moment to the suggestion that that the only potentially effective remedy available to the respondent at this

stage is that he should be relieved of the burden of undergoing a trial. I have already characterised this as a far reaching proposition.

Indeed, I fundamentally disagree with it. The applicant has referred in his submissions to the House of Lords decision in A-G’s

Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 A.C. 72; [2004] 1 All E.R. 1049 as being “the leading authority”. Of course, it is

not an authority in the sense of representing a binding precedent, but the court has considered it carefully and regards it as helpful in

regard to the matters at issue in this case. By a majority decision the House of Lords (comprised of Lord Bingham of Cornhill; Lord

Nicholls of Birkenhead; Lord Steyn; Lord Hoffman; Lord Hope of Craighead; Lord Hobhouse of Woodborough; Lord Millet; Lord Scott of

Foscote and Lord Rodger of Earlsferry; with Lord Hope and Lord Rodger dissenting) held that criminal proceedings could be stayed on

the ground that there had been a violation of the reasonable time requirement in Article 6(1) of the convention only if a fair hearing

was no longer possible, or it was for any compelling reason unfair to try the defendant. The right of a criminal defendant under Article

6(1) was to a hearing. Article 6(1) required that hearing to have certain characteristics. If breach of the reasonable time requirement

was shown to have occurred it could not be cured. But it would be anomalous if breach of the reasonable time requirement had an

effect more far-reaching than breach of a defendant’s other Article 6(1) rights in circumstances where the breach did not taint the

basic fairness of the hearing at all, and even more anomalous that the right to a hearing should be vindicated by ordering that there

be no trial at all. If, through the action or inaction of a public authority, a criminal charge was not determined at a hearing within a

reasonable time , there was necessarily a breach of the defendant’s convention right, and such remedy had to be afforded as was

just and appropriate. If the breach were established before the hearing the appropriate remedy might be a public acknowledgement of

the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant were in custody, his

release on bail. If the breach were established after the hearing, the appropriate remedy might be a public acknowledgement of the

breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant.

Unless the hearing had been unfair, or it had been unfair to try the defendant at all, it would not be appropriate to quash any

conviction. Cases where the delay was of such an order, or the prosecutor’s breach of professional duty was such, as to make it

unfair that proceedings against a defendant should continue would be recognisable, although very exceptional, and a stay would

never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s convention right.

I respectfully agree with their Lordships general approach and approve of it. Moreover, that it is consistent with the general approach

of the European Court of Human Rights, (and I would say the approach of the Irish Supreme Court as reflected in the quotation earlier

in this judgment from the judgment of Fennelly J in T.H. v Director of Public Prosecutions ) is apparent from the following quotation

from the judgment of Lord Bingham where he states:

“….the Strasbourg jurisprudence gives no support to the contention that there should be no hearing of a criminal

charge once a reasonable time has passed. It is of course true that the European Court examines cases

retrospectively and never prospectively, and it cannot quash convictions. But it is significant that in its

interpretation and application of the Convention it has never treated the holding of a hearing as a violation or a

proper subject of compensation. In X v Federal Republic of Germany (1980) 25 DR 142 a convicted criminal claimed

a right to discontinuation of the criminal proceedings in view of the delays which had occurred. The Commission was

sceptical, at p 144, that such a right could be deduced from the Convention, but if it did it would only be in very

exceptional circumstances. Such did not exist, so the application was found to be inadmissible. The court found a

breach of the reasonable time requirement in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, but when

considering just satisfaction for the protracted proceedings in Eckle v Germany (1983) 13 EHRR 556, 559, para 20,

disavowed any: "implication, that their prosecution, conviction and imprisonment were also in breach of the

Convention. The sole matter to be taken into consideration is thus the prejudice possibly entailed by the fact of the

two proceedings in question having lasted beyond a 'reasonable time'." In Neubeck v Federal Republic of Germany

(1983) 41 DR 13 the Commission found, at p 35, para 138, that there had been no sufficiently clear reduction of the

sentence on account of delay, but there was no hint that the applicant was entitled to be compensated for having

been imprisoned. The most explicit statement by the court is to be found in Bunkate v The Netherlands (1993) 19

EHRR 477, 484, para 25:

"The applicant's claims are based on the assumption that a finding by the court that a criminal charge was not

decided within a reasonable time automatically results in the extinction of the right to execute the sentence and

that consequently, if the sentence has already been executed when the court gives judgment, such execution

becomes unlawful with retroactive effect. That assumption is, however, incorrect."

The court found a violation of article 6(1) but rejected the claim for just satisfaction. In Beck v Norway (Application

No 26390/95) (unreported) 26 June 2001 the court found that there had been no violation where the length of the

criminal proceedings had earned the applicant a reduction of sentence.”

Returning to the respondent’s case, this Court is satisfied that notwithstanding the respondent’s attempts to distinguish the Supreme

Court decision in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669 he has not succeeded in doing so, and

that the Court is bound by that decision. Applying it to the present case I consider that the questions as to whether there has

historically been, or there continues to be, a breach of the respondent’s right to a trial within a reasonable time, and if so, how that

might be effectively remedied at this stage, is a matter to be more efficiently and conveniently decided and debated before the

courts of the Czech Republic.

There remains the claim based upon the respondent’s Article 8 Rights. I am not satisfied that to surrender the respondent would

constitute an undue interference with the respondent’s private / family life. I think that the quotation from the judgment in Minister

for Justice, Equality and Law Reform v. Gheorge [2009] IESC 76 relied upon by the applicant is apposite in the circumstances of this

case. Moreover, in arriving at my decision on this aspect of the matter I have adopted the four stage test advocated by Peart J in

Minister for Justice, Equality and Law Reform v. Gorman [2010] IEHC 210 and I am satisfied that all four enquiries must be answered in

the affirmative.

In conclusion therefore, the Court is satisfied that the surrender of the respondent is not prohibited by Part 3 of the 2003 Act, or by

the Framework Decision (including the recitals thereto.)