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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice and Equality v Arben Kosterri [2013] IEHC 96 (05 March 2013)
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Cite as: [2013] IEHC 96
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Judgment Title: Minister for Justice and Equality v Arben Kosterri Neutral Citation: [2013] IEHC 96 High Court Record Number: 2010/17 EXT Date of Delivery: 05/03/2013 Court: High Court Composition of Court: Judgment by: Edwards J. Status of Judgment: Approved |
NEUTRAL CITATION NUMBER [2013] IEHC 96 THE HIGH COURT Record No 2010/17 EXT
THE MINISTER FOR JUSTICE AND EQUALITY Applicant - AND -
ARBEN KOSTERRI Respondent JUDGMENT of Mr Justice Edwards delivered on the 5th day of March, 2013 Introduction: The circumstances of the case The warrant was transmitted to the Irish Central Authority by the Italian Central Authority, namely “Ministero della Giustizi – Direzione Generale delle Giustizia Penale – Ufficio II” [ Ministry of Justice – General Directorate for Criminal Justice – Office II] under cover of a letter dated the 14th of January 2010 from the Italian Central Authority addressed both to the Irish Central Authority and to SIRENE, and the letter were signed “for and on behalf of the Minister for Justice” by Luigi Frunzio who is described as “ Director General”. The warrant seeks the rendition of the respondent for the purpose of prosecuting him for the seven offences charged under Art 110 of the Italian Code Penale., and Articles 73 or 74 of the Italian Law on Drugs (D.P.R. 309/90), and particularised in Part (E) of the warrant, and in respect of which paragraph 2 of article 2 of the Framework Decision has been invoked by the ticking of the boxes in Part E I of the warrant relating to “participation in a criminal organisation”, and “illicit trafficking in narcotic drugs and psychotropic substances”, respectively. The offences charged carry potential sentences of between 6 and 20 years imprisonment where Art 73 D.P.R. applies, and up to 24 years imprisonment where Art 74 D.P.R. applies. The Irish Central Authority, having received the European arrest warrant in the latter part of January, 2010, caused it to be placed before the High Court for endorsement as required by s. 13 of the Act of 2003 as amended. The warrants were duly endorsed by the High Court for execution in this jurisdiction on the 27th of January 2010. On the 14th of June 2012 the warrants were executed by Detective Sergeant Tom Molloy who arrested the respondent at The Eglinton Hotel, Salthill, Galway. Following his arrest the respondents was brought before the High Court in Dublin pursuant to s. 13 of the Act of 2003 as amended. In the course of the s. 13 hearing evidence was received concerning his arrest and a date was fixed for the purposes of s. 16 of the Act of 2003 as amended, and the respondent was remanded in custody in the first instance to the date fixed. ( He was subsequently admitted to bail.) Thereafter the matter was adjourned from time to time, ultimately coming before the Court on the 12th of February 2013 for the purposes of a surrender hearing. The objections to surrender Further information The effect of this additional information is to confirm that Mr Kosterri was tried in absentia after a European arrest warrant had issued for him seeking his surrender for the purposes of prosecution. It is clear that he was not actually notified of the time and place of his trial in the manner required for the purposes of s. 45 of the Act of 2003. Further, he was convicted and sentenced in absentia and, it appears, he will not be permitted to appeal in circumstances where the time has now passed for the lodgement of such an appeal. In those circumstances the applicant is unable to satisfy the terms of s. 45 of the Act of 2003. The Court has therefore no option but to refuse surrender. However, quite apart from having to refuse surrender on s. 45 grounds, this Court regards it as extremely disconcerting that the European arrest warrant in this case was placed before it for endorsement on the basis that the respondent was wanted for prosecution, i.e that the respondent was merely an accused person, who had yet to be tried, and who enjoyed the presumption of innocence, when he had in fact already been tried, convicted and sentenced more than a month previously. Nobody from the Italian Republic had seen fit to inform the Irish Central Authority (who would in accordance with their duty have immediately informed this Court) as to what had occurred. Moreover, they had clearly been planning for many months to try the respondent and they never informed the Irish Central Authority of their plans. If they had done so, the Irish Central Authority would almost certainly not have placed the warrant in question before this Court for endorsement, or if it was thought appropriate to do so would at least have made this Court aware of the circumstances. What occurred is very serious. As a result of the non – communication by the Italian Authorities either of their plans to proceed to try the respondent in absentia, and, as has now transpired, of the fact that they actually did so leading to the conviction and imposition of a sentence upon the respondent, the respondent was arrested and deprived of his liberty (albeit only briefly) on foot of a jurisdictionally flawed warrant. This is the second time in the last year that a problem of this sort has arisen involving a European arrest warrant issued by the Italian Republic. In the previous case Minister for Justice and Equality v Gherine [2012] IEHC 536 (unreported, High Court, Edwards J, 30th of November, 2012) European arrest warrants were placed before this Court for endorsement, and following endorsement were acted upon, on the basis that Italy was seeking the surrender of the Gherines ( a brother and sister respectively) for prosecution. It turned out that they had been tried in absentia after the warrant had been issued and were acquitted of some of the offences to which the warrants related and convicted of others. Nobody on the Italian side had thought to inform the Irish Central Authority of what had taken place in Italy, and consequently this Court was caused to proceed upon warrants which were fatally flawed, but of which it had not been made aware by the Italian Authorities. I stated in my judgement in Gherine:
While there may not have been a deliberate attempt to abuse this Court’s process, what occurred in the present case, if replicated, could potentially have implications for the trust and confidence which this Court currently has in relation to the Italian State, its Courts and institutions.” S. 16(10) of the Act of 2003 provides (to the extent relevant) :
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