QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE GIBBS
|IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM AND IN THE MATTER OF THE EXTRADITION ACT 1989|
|THE GOVERNMENT OF THE CZECH REPUBLIC||(DEFENDANT)|
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"Pursuant to Art 322 para 2 of Penal Law the service of 2 years prison sentence imposed by the judgment of the District Court at Plzen-sever of 6 April 1994 and by the decision of the Regional Court at Plzen of 24th May 1994, file No. 7 to 158/94 is suspended until 21 January 1996.
Grounds of the decision:
By a aforementioned judgments of the District Court at Plzen-sever and the District Court in Plzen accused Ginova was found guilty of robbery pursuant to Art 234 para 1 of Penal Law and imposed 2 years prison sentence without suspension. The judgment became effective on 24 May 1994.
On 11 July 1994 convicted Ginova appeared in this court and petitioned for suspension of her prison sentence on grounds of her pregnancy. She submitted a certificate of pregnancy issued by MUDr Jaroslav Novak, a gynaecologist, Rokycany hospital, on 7th July 1994 in which he set the date of delivery on 21 January 1995.
Pursuant to Art 322, para 2 of Penal Law the presiding judge suspend the prison sentence of the pregnant and mother of new-born baby for 1 year after the delivery of a child.
In accordance with the aforementioned provision of Penal Law the presiding judge has suspended the sentence of imprisonment of convicted Ginova until 21 January 1996, the date of expiry of 1 year's period after expected date of delivery. The court will inquire of the aforenamed doctor whether convicted Ginova really gives birth to her baby on that date. In case the circumstances under which the suspension of sentence was granted are changed, it will be reversed and the convicted must serve the sentence."
"In case the circumstances under which the suspension is granted change, it will be annulled and the convicted has to go to prison."
"... an intrastate arrest warrant was issued against the convicted and nationwide search for her whereabouts was launched."
"Mr Hynes correctly says that there is no evidence of foreign law that relates specifically to this application for suspension. That there is no audit trail of any decisions that might be made in relation to this application, and no paperwork related to this application, and no expert evidence of the foreign law that assists in identifying the criteria to be employed in granting suspensions.
In my judgment none of that is necessary. This court needs to be satisfied so that it is sure, that she is unlawfully at large, and there is adequate material within the papers to establish that fact. The case of Urru unreported 25th May 2000 CO/4009/1999 QBD has been cited. For the reasons I gave during argument it is easily distinguished; essentially 1) Miss Ginova should have reported to the prison, 2) she knew that, 3) she successfully obtained a number of suspensions, 4) each time the court made it clear that at the end of the period she had to report back to the prison unless she successfully obtained another suspension, 5) she never did. She is unlawfully at large."
"There is no material before us to explain when the applicant became unlawfully at large in the eyes of Italian law -- if he ever did -- and we have an apparently clear statement by the prosecutor in June 1999 that the applicant had never been unlawfully at large. In my view the applicant is correct in submitting that the evidence before the magistrate did not entitle the magistrate to be satisfied that the applicant appeared to be unlawfully at large and the magistrate erred in concluding otherwise."
"From the aforementioned provisions of penal law, especially the provision of Article 68 para 2 of penal law, it is obvious that the period of limitation was suspended on the day the convicted left the CR territory and it has not run since and is not running currently. The convicted is staying abroad unlawfully because she is to start serving her prison sentence but this sentence cannot be enforced and as this court does not know the new beginning of time of limitation it is not possible to let the British side know the exact date when the time of limitation will expire and it will no longer be possible to enforce the punishment.
As for item 26 of the legal analysis drawn up by the British Home Office, the presiding judge declares that convicted Julie Ginova is obligated to serve 2 years' prison sentence imposed on her by legitimate decision of this court, the start of which was postponed till May 17, 1999. Since that date the convicted Julie Ginova has been escaping the punishment. In terms of law convicted Julie Ginova is staying out of the CR territory illegally."
"The only material which touches on this point [that is to say the point at issue in the present case] seems to be the Presiding Judge's statement P54-55 but this, it is submitted, deals principally and somewhat arcanely with the question of limitation. It seems to be an attempt to explain why a prima facie lapse of more than five years is not fatal to the enforceability of the original sentence but, what is not clear is in what actually rather than potentially triggers that enforcement or, in what circumstances a person whose sentence is suspended becomes liable to arrest and is therefore unlawfully at large."
Mr Hynes submits that there is a real lacuna in the statement of the Presiding Judge as to the effect in law of the decision of 27th May 1999 which, doing one's best, is likely to have been a decision to adjourn the application for a further suspension.