High Court of Ireland Decisions

Judgment Title: MJELR -v- Adam

Neutral Citation: [2011] IEHC 68


High Court Record Number: 2010 197 EXT

Date of Delivery: 03/03/2011

Court: High Court

BETWEEN/

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 IR 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.

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.”

“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.”

By a letter dated the 1st of November, 2010, the issuing judicial authority, i.e. the District Court in Uherskč Hradiště, 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.”

“2. I beg to refer to the letter from the Uherskč Hradiště 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.”

“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.”

“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.”

“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.”

“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.”

“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

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

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

“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.”

“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.

“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.

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.

“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. ….”

“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.”

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.

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.

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 Uherskč Hradiště 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.”

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.”

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

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.”

The respondent has submitted that if this Court gives effect to the European Arrest Warrant issued by the Uherskč Hradiště 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).

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.

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 IR 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 IR 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 AC 72; [2004] 1 All ER 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 “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 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 IR 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.”

“[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 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.”

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.’”

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 IR 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 IR 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 EHRR 434 and Doorsen v. Netherlands (1996) 22 EHRR 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.”

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 AC 72; [2004] 1 All ER 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.)