High Court of Ireland Decisions

 
THE HIGH COURT

HC 300/04

2004 NO: 23 EXT

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Landi Gokano , also known as Florenc Bita

Respondent

Judgment of Mr Justice Michael Peart delivered the 20^th day of July 2004:

This is an application for an order under s. 16(1) of the European Arrest Warrant Act, 2003 ("the Act"), directing that the respondent be surrendered to the Belgian authorities on foot of a European Arrest Warrant issued by the Judicial Authority in Belgium on the 15^th June 2004, a facsimile copy of which was endorsed for execution by Order of the High Court dated 16^th June 2004, following an application for such an order for endorsement being made pursuant to the provisions of s. 13(1) of the Act.

Following the said endorsement for execution, the warrant was duly executed on the 17^th June 2004 by a member of the Crime Branch, Garda Headquarters, namely Sgt. Michael Heffernan who on that date arrested the person whom he believed at the time to be the person named in the warrant, and forthwith brought that person before the High Court on the same date in accordance with the provisions of s. 13(5) of the Act. On that occasion, Sgt Heffernan gave oral evidence in relation to the arrest of that person, following which this Court, being then satisfied that the person arrested and brought before the Court was the person in respect of whom the European Arrest Warrant was issued, remanded the respondent in custody. The Court in due course fixed a date for the hearing of the present application, namely the 6^th July 2004, being a date within 21 days of the date of the said arrest as required by s. 13(5)(b) of the Act.

I should add for the sake of completeness only, that although the respondent was represented, of necessity at very short notice, by Counsel on the 17^th June 2004, Sgt. Heffernan was not cross-examined on the oral evidence he gave relating to his arrest of the respondent.

Following that hearing on the 17^th June 2004, Sgt Heffernan swore an affidavit on the 29^th June 2004, in which he set out the evidence already given by him orally on the 17^th June 2004, and this affidavit was filed and served. He made himself available for cross-examination on this affidavit before me on the 6^th July 2004 if required, but Counsel on behalf of the respondent, Michael O'Higgins S.C. did not avail of that opportunity, but has made submissions to the Court which I will come to, including one to the effect firstly that he represents, Florenc Bita, but not any person who also is known as Landi Gokano, and he is submitting that in the light of the evidence of Sgt Heffernan this Court cannot be satisfied that the person arrested is one and the same person as that named in the Warrant, namely Landi Gokano also known as Florenc Bita.

On previous occasions in relation to application for orders of extradition under the procedures in the Extradition Act, 1965, as amended, I took the view that, although on the first occasion on which an arrested person was brought before the Court following his arrest the Court was required to be satisfied as to the identity of the person brought before the Court and other matters related to the actual arrest, the fact that the Court may have been so satisfied on that first occasion when the arrested person was more often than not unrepresented by solicitor or counsel, could not, for reasons of constitutional fairness, act as a bar upon the arrested person from making submissions at the later hearing of the application under s. 47 of the 1965 Act, or otherwise, challenging the evidence of arrest given on that first occasion, whether in relation to identification or otherwise. However, under the new Act, s. 13(5) provides:

"(5) A person arrested under a European arrest warrant shall, as soon as may be after his or her arrest, be brought before the High Court, and the High Court shall, if satisfied that the person is the person in respect of whom the European arrest warrant was issued –

(a) remand the person in custody or on bail (and, for that purpose the High Court shall have the same powers in relation to remand as it would have if the person were brought before it if charged with an indictable offence)

(b) fix a date for the purpose of section 16 (being a date that falls not later than 21 days after the date of the person's arrest), and

(c) inform the person that he or she has the right to –

(i) consent to his or her surrender to the issuing state under section 15,

(ii) obtain, or be provided with, professional legal advice and representation, and

(iii) where appropriate, obtain, or be provided with, the services of an interpreter." (my emphasis)

In addition, however, the Act contains s. 16(1)(a) which repeats in the following terms the requirement that on the date fixed for the hearing of the application for the order for surrender the Court must be satisfied in this regard also:

(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her" provided that –

(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued. (my emphasis)

It follows therefore that while the court may have been satisfied for the purpose of the hearing under s. 13(5) on the perhaps uncontested evidence of the arresting officer that the person brought before the court following arrest is the same person as that named in the European arrest warrant, the Court must, on the date fixed for the hearing subsequently, be again so satisfied, and this assumes that the court is entitled to hear submissions and any further evidence adduced, either by way of direct evidence or cross-examination, as to the identity of the person arrested so that the Court can meet the requirements of s. 16(1)(b) of the Act.

Mr Edward Comyn SC for the applicant referred the Court to the various matters which are required to be satisfied before the Court would be entitled to make the order sought in relation to the respondent. He has stated that the applicant relies upon the affidavit of Sgt. Heffernan to which I have already referred, in relation to the formalities of the arrest and identification of the respondent. I shall set out the details of this affidavit when dealing with Mr O'Higgins's submissions in due course. He has also directed the attention of the Court to the form of the European arrest warrant and has submitted that this conforms with that provided for in the Framework Decision, and that the three offences referred to in the warrant and in respect of which the surrender of the respondent is sought are contained in the list of offences set forth in Article 2.2 of the Framework Decision and in respect of which dual criminality is not required to be made out as was the case under the 1965 Act. He has also referred to a document annexed to the warrant in which the details of the three offences are set out. Mr Comyn then referred the Court to the provisions of s. 16 of the Act and to the requirements set out therein as to the matters to be satisfied before this Court can grant the order sought, and he submitted that all these requirements were met, including the undertakings referred to. These undertakings were handed into the Court on behalf of the respondent, and Mr O'Higgins, who indicated that up to that point he had no knowledge of such undertakings being produced, sought a short time to read and examine them. Having been afforded the opportunity sought, the application proceeded.

Mr Comyn indicated that in his view all the requirements had been met, and that he would deal by way of response, with any points of objection made by Mr O'Higgins as to why the Court should not grant the order sought under s. 16 of the Act.

Mr O'Higgins commenced, as I have already mentioned, by stating that he held no brief for any person by the name of Landi Gokano, and that his client's name is Florenc Bita, but not a Florenc Bita who also is known as Landi Gokano. He submits that there is no evidence before this Court to establish that his client is the person the subject of the warrant who is wanted in Belgium in respect of the charges set out in the warrant. That is his first point of objection.

Secondly, Mr O'Higgins submits that the undertakings produced to him on the morning of the hearing before me are not sufficient to ground this application. He raises four issues in this regard:

(a) The person who has signed the undertakings, namely "Bernard Michielson, Deputy King's Prosecutor, Head of Criminal Investigation Division, Office of the King's Prosecutor, Brussels" is not an issuing authority.

(b) Even if he is such, he lacks the appropriate authority to give the undertakings.

(c) Even if Mr Michielson is an issuing authority, he is not the same issuing authority as that which issued the European arrest warrant.

(d) The undertakings are submitted for the purpose of adducing evidence that certain events will not happen, and that as such O. 39, r 10 RSC applies, and that there is therefore an absolute prohibition in relation to the taking of any evidence which is not given viva voce or contained in a sworn affidavit.

As a third objection to the making of the order sought, Mr O'Higgins submits that in relation to the minimum gravity requirement for offences which are the subject of a warrant under the Act, there is an ambiguity in this regard in respect of the offences in the warrant in this case, in that in Box (c) on page 4 of the warrant under the heading "Indications on the length of sentence: Maximum length of the custodial sentence or detention order which may be imposed for the offence(s)" it is stated "Prison sentence of 5 years." The point made is that it is not clear from this that it comes within the category of offence referred to in Article II of the Framework Decision which states as follows:

"1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.

2. The following offences, if they are punishable in the issuing member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:………."

There follows in that Article a list of some 32 offences.

I will deal with these objections individually.

Identification of the respondent:

Before setting out Mr O'Higgins's submission in relation to the identification of his client, I should set out in detail the relevant passages from the affidavit of Sgt. Heffernan which is the evidence on which the applicant relies. After the usual introductory paragraphs the affidavit states as follows:

"3. On the 17^th of day of (sic) June 2004 I was on duty at the Four Courts, Dublin and had the European Arrest Warrant for the arrest of Landi Gokano also known as Florenc Bita in my possession. The warrant had been received from the Belgian authorities and endorsed by the High Court on the 16^th of June 2004. I was accompanied by an interpreter who was qualified to interpret the Albanian language.

4. I met a man outside the Court whom I believed to be Landi Gokano also known as Florenc Bita. I introduced myself to him by producing and showing him my official Garda identification card and telling him my name, rank and station. I asked him "are you Florenc Bita?" to which he replied "Yes". I then asked him "are you also known as Landi Gokano?" to which he replied "no". I asked him "Is your date of birth, 5^th May 1975?" to which he replied "Yes".

5. I then informed him that I had in my possession a European Arrest warrant for his arrest. I informed him of the purpose of the warrant and explained to him the nature of the charge alleged therein. I showed him the original European Arrest Warrant and drew his attention to the fact that it had been endorsed by the High Court for execution.

6. I informed him that I was arresting him on foot of the warrant and did so, by placing my right hand on his left shoulder, at 10.45 a.m. on 17^th June 2004 at the Four Courts in Dublin. I informed him that he had the right to consent to his surrender to Belgium under the provisions of section 15 of the European Arrest Warrant Act, 2003. He stated that he wished to consent. I also informed him that he had the right to be provided with professional legal advice and representation. I conformed with him that I had contacted his solicitors and he would be given an opportunity to consult with them before his court appearance.

7. I then cautioned him by saying to him "You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in evidence and may be given in evidence2. I asked him "Do you wish to say anything?" He replied "No." I then served him with a copy of the European Arrest Warrant and a copy of section 15 of the European Arrest Act, 2003. My conversation with Landi Gokano also known as Florenc Bita was at all times conducted through the interpreter in the Albanian language, as were his replies to me.

8. I brought into (sic) the High Court on the 17^th June 2004 where I gave evidence of having executed the warrant by arresting him. I endorsed the rear of the warrant as having been executed by himself and handed it into Court where it is retained."

Mr O'Higgins submits that the evidence contained in paragraph above falls short "by a mile" of what is needed to satisfy this Court that the person arrested and brought before the Court is the person named in the European Arrest warrant herein. He submits that there is a complete denial that he is known as Landi Gokano, even if accepts that his name is Florenc Bita. Therefore he submits that the applicant ought to but has not produced any evidence as to how Sgt. Heffernan could have been satisfied that he had the right person. He has simply stated that he believed that he "met a man outside the Court whom I believed to be Landi Gokano also known as Florenc Bita." Mr O'Higgins says that it would be perfectly possible for the applicant to bring into court some person who can state that this is the correct person, or who can satisfy the Court in some other way that the person before the Court is the person who is named in the warrant. In response to these submissions, Mr Comyn has referred the Court to the wording of s. 16 of the Act which refers to the Court having to be "satisfied" that the person is the person named in the warrant. He submits that this requirement does not mean that the applicant needs to go beyond what has been done in this case, and that in addition to Sgt. Heffernan's belief and the respondent's acceptance that he is Florenc Bita, this Court is entitled for the purpose of the section to have regard, for the purpose of being "satisfied", to the fact that the respondent stated to Sgt. Heffernan that he wished to consent (to his surrender). I should that this indication of consent has subsequently been withdrawn by the respondent, as he is entitled to do under s. 15(9) of the Act. Mr Comyn also referred to the fact that the respondent had accepted that his birth date was the 5^th May 1975, which is the date of birth stated in the warrant for the person named therein. Inn all these circumstances, Mr Comyn submits there is sufficient evidence for the Court to be satisfied in this regard.

I agree with the submissions of Mr Comyn. The respondent has given no evidence either on affidavit or orally, and therefore the only contra-indicator in relation to the identity of the person arrested is his own denial to Sgt. Heffernan that he is also known as Landi Gokano. In my view that mere denial is insufficient to trump the other evidence given by Sgt Heffernan. I am satisfied from the fact that he accepted that his name is Florenc Bita, that his date of birth is confirmed by him to be that shown on the warrant, and having regard to what he stated at the time of his arrest about wishing to consent to his surrender (albeit that this has been subsequently withdrawn, as I have stated) that the applicant is the person referred to in the said warrant.

The undertakings:

It is necessary to give the context in which these undertakings are required under the Act, before setting out the objections made to those actually produced to the Court by the applicant on this application.

The undertakings relevant to this application are those referred to in s. 22(1)(b), s. 23 (1)(b) and s. 24 (1) of the Act. I will set out each of these:

s. 22(1)(b):

"Subject to this section, a person shall not be surrendered under this Act, unless –

(a) ……………..[not applicable]

(b) an undertaking in writing is given to the High Court by the issuing authority that the person will not be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal freedom, for an offence committed before his or her surrender other than the offence (in respect of which he or she is surrendered) specified in the European arrest warrant." (my emphasis)

s. 23 (1)(b):

"Subject to this section, a person shall not be surrendered under this Act unless –

(a) ………………..[not applicable]

(b) an undertaking is given to the High Court by the issuing judicial authority that the person will not be surrendered to another Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of that offence." (my emphasis)

s. 24(1):

"A person shall not be surrendered under this Act unless the issuing judicial authority gives an undertaking in writing that the person will not be extradited to a third state without the consent of the High Court and the Minister" (my emphasis)

It will be recalled that under s. 16(1) of the Act, one of the matters of which the Court must be satisfied before it can make an order under that section for the surrender of the person, is the requirement in s.16(1)(c) that "such undertakings as are required under this Act, or facsimile or true copies thereof, are provided to the court."

Under s.12(2) of the Act, these undertakings "shall be transmitted by, or on behalf of, the issuing judicial authority to the Central Authority in the State……..

Under s. 12(5) of the Act, it is provided that an issuing authority shall be deemed to have complied with this obligation if facsimile copies of such undertakings are transmitted "in accordance with regulations under subsection (10), by the issuing judicial authority to the Central Authority in the State by means of a facsimile machine in respect of which there is compliance with such regulations."

Finally, of relevance are s.12(8) and s.12(9) of the Act which provide:

s.12(8):

"In proceedings to which this Act applies, a document that purports to be –

(a) a European arrest warrant issued by a judicial authority in the issuing state,

(b) an undertaking required under this Act of a judicial authority in the issuing state,

(c) a translation of a European arrest warrant or undertaking under this Act, or

(d) a true copy of such a document.

shall be received in evidence without further proof. (my emphasis)

s.12(9):

"In proceedings to which this Act applies, a document that purports to be a facsimile copy or true copy of a European arrest warrant, undertaking or translation referred to in subsection (8) shall, unless the contrary is shown, be evidence of the European arrest warrant, undertaking or translation as the case may be."(my emphasis)

I just note in passing that the undertakings before this court are in facsimile form.

Before passing from the actual provisions of the Act, I should advert to the provisions of s.45 of the Act, since in this particular case it is the fact that the terms of imprisonment to which the person the subject of the warrant has been sentences were imposed 'in absentia'. In such a case s.45 assumes relevance. It provides as follows:

s.45:

"A person shall not be surrendered under this Act if –

(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and

(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or

(ii) he or she was not permitted to attend the trial in respect of the offence concerned,

unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered –

(i) be retried for that offence or be given the opportunity of a retrial in respect of that offence,

(ii) be notified of the time when, and place at which any retrial in respect of the offence will take place, and

(iii) be permitted to be present when such retrial takes place."

In this regard, Article 5.1 of the Framework Decision itself which is appended to the Act is of relevance. It states:

"The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender, may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is subject to the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing member State and to be present at the judgment."(my emphasis)

The Oireachtas has given effect to the Framework Decision in terms of the Act passed, and it therefore must in my view be presumed that the "assurance deemed adequate" referred to above is the undertaking referred to in s. 45 of the Act. I will return to that matter in due course.

The undertakings which have been provided to the Court for the purposes of s.22(1)(b), s.23(1)(b) and s. 24 of the Act are as follows:

s.22 Undertaking:

This undertaking is headed "Undertaking to satisfy the Provisions of Section 22 of the European Arrest Warrant Act, 2003" and reads as follows:

"I, Bernard Michielson, Deputy King's Prosecutor, the issuing judicial authority undertake that Gokano Landi, otherwise known as Florence (sic) Bita will not be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal freedom, for an offence committed before his or her surrender other than the offences specified in the European arrest warrant concerning him."

It is signed by the said "Bernard Michielson, Deputy King's Prosecutor, Head of Criminal Investigation Division, Office of the King's prosecutor, Brussels."

s. 23 Undertaking:

This undertaking is similarly headed and refers also to Gokano Landi otherwise known as Florence (sic) Bita, and undertakes that this person will not be surrendered to "another Member State"…….:

"(i) (I) before the expiration of a period of 45 days from the date of the person's final discharge in respect of the offence for which he or she is surrendered to the issuing state during which time he shall be free to leave the issuing state, or

(II) unless having been so discharged he or she leaves the issuing state and later returns thereto, or

(ii)unless

(I) he or she voluntarily gives his or her consent to being surrendered to another Member State and is fully aware of the consequences of his or her doing so,

(II) that consent is given before the competent judicial authority of the issuing state, and

(III) he or she obtains or is given the opportunity to obtain professional legal advice in relation to the matters to which this paragraph applies before he or she gives that consent."

This undertaking is signed in the same manner as the undertaking under s. 22 referred to already.

s.24 Undertaking:

Again, this undertaking is similarly headed to the others and reads as follows:

"I, Bernard Michielson, Deputy King's prosecutor, the issuing judicial authority undertake that Gokano Landi, otherwise known as Florence Bita will not be extradited to a third state without the consent of the Irish High Court and the Minister for Justice, Equality and Law Reform."

This undertaking is also signed in the same manner as the undertakings referred to already.

I want to refer, for the moment, to a matter which was not raised in the arguments before me in fact but it worthy at least of mention. That is the fact that in these undertakings the person in respect of whom the undertakings are given is "Gokano Landi", and not "Landi Gokano", the latter being the name which Sgt. Heffernan asked the respondent to acknowledge he was. The warrant describes the person's "Name" as "LANDI", and the person's "Forename" as "Gokano". The alias on the other hand, and which the person acknowledges as correct, is "FLORENC Bita". If these names are recorded in a consistent manner, it suggests that, on the basis that the forename is first and the surname second, the possible names of this person are Gokano LANDI aka FLORENC Bita. But I suspect, given that the surnames in the detailed facts attached to the warrant have the surnames placed in capital letters, that the alias ought to be "Bita FLORENC". In the Annex document what are clearly what we in this jurisdiction refer to as Christian names appear in lower case lettering, such as "Anna", "Olga" "Natalia" "Valarya". It must follow from this that the person referred to in the warrant has a "Christian" name of either "Gokano" or "Bita". There is certainly an inconsistency in this regard, and confusion as a result. As I have said, this particular matter is not one to which attention has been drawn by Counsel either for the applicant or the respondent.

Mr O'Higgins's first point of objection to these undertakings is that the person who has signed the undertakings, namely "Bernard Michielson, Deputy King's Prosecutor, Head of Criminal Investigation Division, Office of the King's Prosecutor, Brussels" is not an issuing authority. Now the "official name" of the issuing judicial authority according to Box (i) of the warrant is "Office of the Public Prosecutor in Brussels", but in the French translation is called "Parquet du Procureur du Roi de Bruxelles". A more accurate translation of the latter would surely be "Office of the King's Prosecutor in Brussels" rather than "Office of the Public prosecutor. This assumes relevance since Mr Michielson is described in the undertakings which have been produced to the Court as "Deputy King's Prosecutor" and he is of the Office of the King's Prosecutor, Brussels. Mr O'Higgins's submission that Mr Michielson's undertaking is not an undertaking of the issuing judicial authority seems to rest on the mistranslation of the French "Parquet du Procureur du Roi de Bruxelles" into "Office of the Public Prosecutor" since that is not the office to which Mr Michielson appears on the face of things to be attached. I am satisfied that the undertakings are undertakings from the issuing judicial authority, since I am satisfied that the Office of the King's Prosecutor is the judicial authority based on the French language description of that office, and Mr Michielson is the Deputy in that office.

Mr O'Higgins's second argument is even if they be such, he lacks the appropriate authority to give the undertakings. The position is that under the undertakings required under these sections are to be given by "the issuing judicial authority" – in this case that being the Office of the King's Prosecutor, since the definition of "issuing judicial authority" in s. 2 of the Act is the judicial authority in the issuing state that issued the European arrest warrant. Mr O'Higgins's submission is based on the definition of "judicial authority" in s.2 rather than "issuing judicial authority" in my view. That being the case I do not require him to demonstrate his authority in any way. I also refer to the provisions of s.12(8) which provides inter alia that that a document that purports to be an undertaking required by the Act "shall be received in evidence without further proof". Clearly these undertakings purport to be those required by the Act.

Mr O'Higgins's third point is that even if Mr Michielson is an issuing authority, he is not the same issuing authority as that which issued the European arrest warrant. I have already dealt with that point by reference to the French language name of the issuing judicial authority, and therefore this submission must also fail.

Mr O'Higgins's final point on the undertakings is that the undertakings are submitted for the purpose of adducing evidence that certain events will not happen, and that as such O. 39, r 1 RSC applies, and that there is therefore an absolute prohibition in relation to the taking of any evidence which is not given viva voce or contained in a sworn affidavit. Under s.12(3) of the Act, these undertakings may be transmitted to the Central Authority by facsimile machine which complies with the regulations made in that regard. These undertakings were so transmitted. Under s.12(9) it is provided that a document which purports to be facsimile copy of, inter alia, an undertaking, it shall, unless the contrary is shown, be evidence of the undertaking. As I have already adverted to, s.12(8) provides that a document purporting to be an undertaking shall be received in evidence without further proof. I am satisfied that in the circumstances where the legislature has by statute provided for the provision off undertakings to the Court in the way it has chosen, this statutory provision cannot be superceded by the Rules of the Superior Courts, such as the rule to which Mr O'Higgins is referring.

Two points trouble me and they are that the undertakings are in respect of a person named as "Gokano Landi otherwise known as Florence Bita" (my emphasis), whereas the person before the Court, is, and it is accepted that the affidavit of Sgt Heffernan is the evidence of identification relied upon, "Landi Gokano also known as Florenc Bita". If a person in this jurisdiction was named John Henry, could it be said that he could be referred to as Henry John in a warrant or undertaking without the warrant or undertaking being regarded as suffering under an infirmity? That is the situation presented in this case even if I overlook the fact that in the undertakings the alias is Florence Bita rather than Florenc Bita. As I have already stated I believe that the correct names which should appear in all these documents is Gokano Landi also known as Bita Florenc. That is based on the fact as I have stated that in the Annex and in the Box on page 1 of the European Arrest Warrant the "Name", and by that I understand it to mean "surname", appears in uppercase type, whereas in these documents the Christian name or "Forename" is in lowercase type as I have said. The basis upon which I was satisfied that the person before the Court is the person named in the warrant is simply that person's own admission that he is "Florenc Bita" with a date of birth of the 5^th May 1975, and I paid some regard to the subsequently withdrawn consent to surrender. But I do not believe that the undertakings produced to the Court can be regarded as undertakings in respect of the correct person until such time as the problems with the name of this person whose surrender is sought is cleared up once and for all, as otherwise there is a possibility that the undertakings are not properly valid and therefore to be relied upon to the degree of certainty that this Court is entitled to.

I have stressed on other occasions the extent to which the greatest possible care must be taken by all concerned to ensure that all documentation relied upon in these matters are correct. The recitals to the Framework Decision refer to need to speed up procedures to extradite persons wanted. However, more haste can mean less speed. It is worth noting the final paragraph of recital 12 of the Framework Decision which states:

"This Framework Decision does not prevent a Member State from applying its constitutional rules of due process………."

The other matter which concerns me is the matter adverted to earlier, namely the absence of any undertaking referred to in s.45 of the Act. The warrant itself at Box (d) thereof states that the "subject will be given the opportunity for a full re-trial after being surrendered" and states other related matters. That is not an undertaking. It is a statement only, and s.45 is very specific about an undertaking being required. In fact what is stated in that box answer does not cover all the matters which s. 45 states should be contained in the undertaking, such as to be notified of the time when, and place at which any retrial will take place, and that he will "be permitted to be present when any such retrial takes place". The box answer simply states "See annex for a full explanation of the procedure and the guarantees provided by the Belgian legislation." In fact that statement says nothing about the respondent being permitted to be present when any such retrial takes place. In addition, that document speaks only of a right of "appeal" and not "retrial". Certainly in this jurisdiction, there is a world of difference between a retrial and an appeal against a conviction, and it would not be possible for this Court to reach a conclusion, even by reference to the answer in Box (d) and the annexed statement of Belgian law, that the guarantee required under Article 5 of the Framework Decision, and as given effect to by s. 45 of the Act, has been provided. I am also of the view that even if the necessary ingredients of these guarantees were to be found in their entirety in the documentation annexed to the warrant and in the answer contained in Box (d), this would not be sufficient, given the manner in which the Oireachtas has seen fit to implement the Framework Decision, and in particular given the provisions of s. 45 of the Act.

It is also true that it is provided in s.12(11) of the Act that "In this section, "undertaking" includes a statement under section 11(3)". But that cannot apply automatically to a statement relating to matters in s. 45 of the Act, since it does not say so, and there is no similar provision in respect of the s. 45 undertaking. As I stated earlier the Framework Decision states that "an assurance deemed adequate to guarantee the person ……." is what is required, and in its implementing legislation, an undertaking in writing is what has been so deemed to be adequate. That has not been produced in this case.

I am required by s. 16(8) to specify my reasons in the event of refusing the order sought. Those are that I have formed the view that the undertakings provided are not "such undertakings as are required under this Act, or facsimile copies or true copies thereof" given the problem arising in relation to the names contained therein, and, in addition, because an undertaking that is required under s.45 of the Act has not been provided. In relation to the latter reason, even if I am wrong about an undertaking being required, the answer in Box (d) of the warrant does not refer to the right of the respondent to be present at any retrial, and the statement of Belgian law refers only to an appeal rather than a retrial, and is silent as to the right of the respondent to be present. Therefore s. 45 of the Act has not been complied with.

I therefore refuse the application made for the order sought.

Approved

Michael Peart