QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF TRENK||Claimant|
|DISTRICT COURT IN PLZEN-MESTO, CZECH REPUBLIC||Defendant|
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Miss A Nice (instructed by the CPS) appeared on behalf of the Defendant
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"This warrant has been issued by a competent judicial authority. The person mentioned below is accused in the territory of the Czech Republic of an offence/offences specified in the warrant. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution for the offence(s)."
Then in the formal boxes to the warrant under (b) "Decision on which the warrant is based":
"1. Arrest warrant or judicial decision having the same effect: warrant of arrest
Type: preliminary procedure."
Then the offence is specified in box (e), and it may be pointed out that the alleged offence is specified with some degree of particularity. What in fact is said at the start of the description is this:
"It is presumed that the named person committed the above mentioned offence . . . "
Details thereafter being given. The arrest warrant, I might add, is signed by a Czech criminal judge.
"1. The above named Vladimir Trenk was accused of committing a crime of credit fraud . . .
2. At the present time the investigation against the accused has not been completed yet because the above named person must be interrogated concerning the case as the accused.
3. Up to the present time it has not been possible to charge Vladimir Trenk in this case. A result of the investigation will show whether he will be charged or not.
4. Surrender of Vladimir Trenk based on the European Arrest Warrant is intended for the purpose of the prosecution.
5. The investigation against the named person still continues and will be ended only after the interrogation of the named person.
6. It is a warrant for arrest in order to complete the preparatory procedure and to proceed with the prosecution in connection with the given criminal activity.
7. The warrant of arrest against Vladimir Trenk was issued on July 13th 2006 by the District Court in Plzen-Mesto.
8. The warrant of arrest was issued for the reason that there was a suspicion that the accused had stayed abroad in order to avoid prosecution . . . "
9. On April 25th 2006 Vladimir Trenk was brought at the border crossing in Rozvadov where he was handed the order about instituting the prosecution regarding this case . . . "
The position, by way of background, seems to be that what is styled "notice of institution of prosecution" was issued on a date in 2003 and then that was served on Mr Trenk on a date in 2006. It appeared to be served at a time when he was seeking to leave the Czech Republic.
"Subjectively [sic] the prosecution against the accused was commenced only on the date of the actual handover of this order on April 25th 2006."
A little further on it is indicated that the applicant allegedly gave an informal promise that he would contact the police bodies "in order to be properly questioned concerning the case". Of course, it is the position that the applicant has not been questioned at all, just because he has been abroad ever since: although interestingly in that letter it was suggested that it was not even possible to proceed by means of cooperation on the basis of letters rogatory -- which indicates, perhaps, an intention to try and gain more information. Then at paragraph 3 of that letter it is said:
"The reasons why the accused Trenk has not still been charged should be qualified especially by a supervising prosecuting attorney because he/she only can decide about filing an action. The Court cannot intervene in this power in any way. However, based on the file documents that the Court has at disposal at the present time for needs of issuing the European Arrest Warrant and the follow-up proceedings it is obvious that charges have not been brought especially for the reason of failing to reach the accused who should have already been questioned within the preparatory procedure so that the prosecuting attorney could judge legitimacy of suspicion of the committed crime also on the basis of a testimony given by the accused and on that account also legitimacy of a possible charge. Only after bringing charges to a competent local court a hearing of the case would be commenced."
"The preparatory procedure (ie, criminal proceedings prior to bringing charges) is instituted by issuing an order of the prosecution and its serving to an accused person. Criminal prosecution can be instituted only if there is a justified suspicion a crime has been committed and it was committed by a particular person."
Pausing there, that, by a very broad analogy, may not be so very far away from the procedures in this country where ordinarily an arrest can only take place on the basis of reasonable suspicion. A little further on it is said:
"After evaluation of the evidence situation the prosecuting attorney weighs whether the proved facts of the case really competently substantiate the suspicion of committing a crime by a particular person. If he/she comes to a positive conclusion, he/she brings charges to a local competent court."
There are various other paragraphs to that effect which in the interests of time I will not read out although I have had full regard to them.
"First of all, I would like to point out that in fact all the questions referred to the ongoing preparatory procedure which would be concluded at the moment of bringing an action. It has not happened yet. Therefore, a major part of powers and competencies still rests with the police and the prosecuting attorney . . . However, the court always acts upon a prosecuting attorney's proposal only. The court is not active of its own accord."
Indeed, it goes on to indicate that, from the position of the judge, he is not able to answer many of the questions asked. So one can infer that the matter has not yet progressed to the stage of a judicial investigation or examination.
"(a) In the Czech Republic the prosecution has already been conducted against the accused Trenk since July 25th 2003. His status is an accused person. The court cannot decide whether or not an action is brought. This is decided by a prosecuting attorney. The prosecution of the accused is still in the stage of preparatory inquiries . . . "
17. Ismail sets out the general approach that this court should adopt. True it is that Ismail was a decision under the previous Act, but nevertheless what is said there remains relevant and instructive. I accept that a broad, generous and purposive approach to construction should be adopted in this context, and likewise this court should adopt a cosmopolitan approach and should not seek practically to apply an English and Welsh kind of approach to different systems which prevail elsewhere in Europe.