Minister for Justice and Equality v Tache [2020] IEHC 130 (05 March 2020)

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JUDGMENT of Mr. Justice Binchy delivered on the 5th day of March, 2020

1. By this application the applicant seeks an order for the surrender of the respondent to

Germany pursuant to a European Arrest Warrant dated 24th June, 2019 (“the EAW”).

The EAW was issued by the Krefeld local court as issuing judicial authority.

2. The EAW was endorsed by the High Court on 26th July, 2019. The respondent was

arrested and brought before the Court on 25th September, 2019. The hearing of this

3. At the opening of the application, I was satisfied that the person before the Court is the

4. I was further satisfied that none of the matters referred to in ss. 22, 23 and 24 of the

European Arrest Warrant Act 2003 (as amended) (“the Act of 2003”) arise, and that the

surrender of the respondent is not prohibited for any of the reasons set forth in any of

5. At para. B of the EAW, it is stated that it is based upon an arrest warrant dated 4th April,

2017, which was also issued by the Krefeld local court. It is described as being a

6. At para. C of the EAW, it is stated that the maximum length of the custodial sentence or

detention order which may be imposed for the offences to which the EAW refers is ten

years. Accordingly, minimum gravity in respect of the offences with which the EAW is

7. It is apparent from the EAW that it has been issued for the purpose of prosecuting the

respondent, and not for the purpose of requiring him to serve a sentence. At para. E of

the EAW it is stated in the opening line that it relates to a total of 13 offences. A few

lines further on in para. E it is stated that the accused is charged with a total of 28

(1) Thirteen counts of fraudulently acquiring cigarettes, food stuffs and gift cards from

named companies, “for own use or profitable resale, at filling stations in Krefeld,

Wetter, Mönchengladbach, Dormagen and Rüsselsheim jointly with a separately

prosecuted person using a previously stolen or found EC card with PIN code to the

bank account no. 202187977 with the bank Sparkasse Hagen held by the injured

party Seifert, knowing that he was not authorised to use the EC card. In doing so,

the accused caused damage in the amount of approximately 1,350.00 euros.”

(2) Secondly, ten counts of fraudulently acquiring clothing and other items with a total

value of approximately €900, “for own use or profitable resale at Maxhütte,

Borgwedel, Oldenburg, Osteinbek, Plochingen, Wuppertal and Hagen using his EC

card to the bank account number 0127521300 with the bank Commerzbank, which

did not have sufficient cover to honour the direct debits authorised by the accused”,

(3) thirdly, the respondent is charged with five counts of using public transport at

Hagen, Düsseldorf, Ennepetal, Duisburg and Dortmund, without being in possession

8. It is apparent from the above that the offences were described in more general terms

than is required. However, the central authority had previously requested details of each

separate offence, and also requested clarification as to the apparently contradictory

information within the EAW as to the number of offences. This information had been

requested in the context of an earlier European arrest warrant (“the earlier EAW”) which

had issued in respect of the same respondent and in respect of the same offences. The

earlier EAW, which had to be withdrawn because it was issued by a public prosecutor,

and, following upon the decision of the Court of Justice of the European Union in the

cases of OG and PI on 27th May, 2019, the authorities in Germany restructured the

arrangements for the issue of European arrest warrants with the result that the EAW in

respect of which these proceedings are concerned was issued in replacement of the

earlier EAW, by a court rather than by a prosecutor, but is otherwise identical. So,

therefore, it is apparent that the additional information that was provided in connection

9. That additional information confirmed that the respondent is being charged with 28

offences. There was also a different error in the earlier EAW which referred to nine

offences (rather than thirteen), but this is of no consequence – what is of consequence is

that clarification is given as to the number of offences with which it is intended to charge

the respondent. Somewhat unusually, but very helpfully, the additional information in

relation to each offence is provided in the form of a copy of the underlying arrest warrant

of the Krefeld local court of 4th April, 2017. This provides a brief statement of each

offence, including the date and time of day at which each offence was committed. The

arrest warrant also provides detailed particulars of the statutory provisions creating the

10. Points of objection were filed on behalf of the respondent on 1st November, 2019. The

points of objection as pursued at the hearing of this application are as follows:

(1) The EAW is not in the form required by s.11(1) of the European Arrest Warrant Act,

2003, as amended (the “Act of 2003”) and/or the Framework Decision in that it is

does not adequately or correctly specify the number of offences that the

respondent has allegedly committed and does not provide sufficient clarity and

particulars as regards the time, place and degree of participation of the respondent

(2) The EAW is contradictory, in stating that the respondent is accused of 13 offences

in one place, and 28 offences in another. It is not open to the issuing judicial

authority to clarify this by way of additional information, and a new European arrest

warrant should have been issued in order to address such a fundamental change in

(3) The EAW does not adequately identify the decision on which it is based, and is

(4) The EAW does not disclose that a decision has been made by the relevant authority

in Germany to try the respondent for any of the alleged offences and his surrender

(5) The surrender of the respondent is prohibited by s.37 of the Act of 2003 because it

is clear from the EAW that, if surrendered, the respondent will be remanded in

(6) The EAW is ambiguous in that Article 2(2) of the Framework Decision has been

invoked insofar as the box relating to “swindling” has been ticked in Part E I of the

EAW, and yet Part E II of the EAW is completed in relation to all categories of

11. The respondent supported his objections through an affidavit of a German lawyer, a Dr.

12. In response to these points of objection, the applicant argues as follows. While there was

an error on the face of the EAW as regards the number of offences, it is clear from both

the EAW itself and the additional information that the number of offences is 28. There is

no doubt or ambiguity about this, and particulars of all 28 offences have been provided.

13. In this regard, in considering whether or not there has been compliance with s.11(1) of

the Act of 2003, the Court is entitled to consider all of the information placed before it,

and moreover the Court is also entitled, pursuant to s.45C of the Act of 2003, to order

surrender notwithstanding any defect in the EAW. There is no question of changing a

fundamental element in the nature or purpose of the warrant – it is clear from the

information provided that the respondent is wanted in connection with the prosecution of

14. The EAW is in the form required by the Framework Decision and does identify the decision

on which it is based i.e. the national arrest warrant, a copy of which has been provided.

15. The EAW clearly states on the front page that the surrender of the respondent is required

for the purpose of conducting a criminal prosecution or executing a custodial sentence or

detention order. It is apparent that it is for the former purposes that the surrender of the

respondent is required. The respondent has not produced cogent evidence or any

adequate evidence to displace the statutory presumption contained in s.21A (2) of the Act

of 2003, that a decision has been made to charge and try the respondent for the offences

described in the EAW, which presumption operates under the terms of that section

“unless the contrary is proved”. No cogent evidence to the contrary has been provided.

The affidavit of Dr. Holger Matt provided on behalf of the respondent in opposition to this

application goes no further than saying that the information does not disclose the state of

the investigation or when a bill of indictment can be expected. This is not sufficient to

displace the statutory presumption contained in s.21A (2) of the Act of 2003.

16. The respondent is clearly entitled to apply for bail, when surrendered. This is apparent

both from the additional information and the affidavit of Dr. Holger Matt.

17. The ambiguity at para. E of the EAW may be addressed by proving correspondence with

Objections 1 and 2 – Ambiguity in EAW / Insufficiency of Information

18. In relation to his objection that the EAW is unclear or ambiguous, the respondent relies

upon the decision of the Supreme Court in the case of MJE v. Arnost Herman

[2015] IESC 49. In that case the surrender of the respondent was sought pursuant to three

European arrest warrants. It was the respondent’s case that there was a lack of clarity in

the warrants and in the additional information as to the purposes for which surrender was

sought. The applicant in that case contended that any lack of clarity was addressed by

the additional information, which could be treated as a variance (of the European arrest

warrants, by the additional information) for the purposes of s.45C of the Act of 2003 such

that surrender should not be refused on the grounds of that variance. However, the

Supreme Court determined that what the applicant contended was a variance for the

purposes of s.45C was a fundamental change from the purpose for which surrender was

sought in the original European arrest warrant. The change was indeed significant: In

“The position now is that instead of being sought for sentencing under Warrant No.

3 the appellant is now sought to be arrested and prosecuted. Further, the effect on

Warrant No. 1 is that he may have to serve a different sentence on Warrant No. 1

“Where the national judicial authority which issued a European arrest warrant seeks

to change a fundamental element in the nature or purpose of the warrant, as

opposed to providing further information or corrections of a minor nature, a new

warrant should be issued in the form required by the Act, namely, in the form in

the Annex to the Framework Decision, so that it may be endorsed for execution in

19. In these proceedings, it is contended on behalf of the respondent that the further

information purports to change the EAW in a fundamental manner by changing the

number of offences for which surrender is sought from 13 to 28, and also by providing

particulars of those offences. On the basis of Herman, it is argued that these are

fundamental changes which cannot be effected merely by the provision of additional

20. It is well established that a person whose surrender is sought pursuant to the Act of 2003

is entitled to know the number and nature of the offences for which his/her surrender is

sought (see para. 30 of the decision of Hardiman J. in Minister for Justice v. Connolly

[2014] IESC 34). In the earlier EAW, the number of offences for which the respondent

was sought was stated to be nine. The opening line of para. E of the EAW states that the

warrant relates in total to thirteen offences. It is clear that both of these statements are

in error. Six lines down from the first line of para. E of the EAW it is stated that the

accused is charged with a total of 28 offences. It then proceeds to describe the 28

offences, starting with “13 counts of fraudulously acquiring cigarettes”, and then later

describing ten counts of “fraudulously acquiring clothing and other items”, and concludes

“with 5 counts of using public transport… without being in possession of the necessary

ticket”. It is, in my view, clear from the EAW itself, without reference to the further

information, that the reference to thirteen offences is an error, because a breakdown is

provided for the 28 offences which are referred to at just six lines later.

21. Because there was an error in the earlier EAW, the central authority here had sought

clarification as regards the statement that it referred to nine offences, and then

proceeded to refer (by reference to the same breakdown) to 28 offences. This

clarification was provided by a letter dated 19th March, 2019 which unambiguously stated

that the reference to nine offences was an error, and that the respondent is being

charged with 28 offences. The national arrest warrant was provided setting out full

22. Firstly, it must be stated that there is no lack of clarity or ambiguity about the number or

nature of charges that are to be proffered against the respondent upon his surrender. It

is immediately apparent that the facts in Herman were very different. It is true that there

is an error on the face of the EAW, but even without reference to the letter of 19th March,

2019 or the national arrest warrant, it is apparent that the surrender of the respondent is

required in connection with 28 charges. While there is no obligation on an issuing judicial

authority to provide a copy of the arrest warrant, it was helpful that they did so in this

case in order to provide particulars of the date and time of each individual offence. In my

opinion, this could not be considered to be a fundamental change in the purpose for which

the EAW was issued, or in the nature of the information set out in the EAW. It amounts

to no more than an expansion of the information provided in the EAW, so that the

respondent has detailed particulars of the date and time of each alleged offence. The

Court is entitled to read all of the information provided in the EAW and the additional

information as a whole in considering whether or not there has been compliance by the

issuing judicial authority as regards the information required to be provided by the

Framework Decision. I am satisfied that the information provided meets the

requirements of both the Framework Decision and the Act of 2003 in this regard and that

the additional information does not constitute a fundamental change of the EAW such as

to require this Court to refuse this application. I therefore reject this objection.

Objection 3 - EAW does not identify decision on which it was based

23. This objection was not pursued at hearing. It is not difficult to understand why, as the

EAW clearly states, at para. B that the EAW is based upon an arrest warrant issued by the

24. As regards the objection that surrender is prohibited by s.21A of the Act of 2003, the

respondent is relying upon the opinion of Dr. Holger Matt and the decision of this Court

(Donnelly J.) in Minister for Justice and Equality v. Alan Gray [2016] IEHC 128. In order

to succeed with this argument, the respondent must produce cogent evidence that no

decision to charge and try the person whose surrender is sought has been made at the

time of issue of the EAW. The evidence put forward on behalf of the respondent in this

case is to be found at the end of the opinion of Dr. Holger Matt where he states:

“The given information does not disclose the state of investigation or when a bill of

indictment can be expected. A lawful national court decision has been made

through the (national) arrest warrant issued at 04 April 2017. In this regard the

criminal investigation was commenced before that time and is ongoing obviously

until today. The EAW of June 2019 is based on the national arrest warrant of April

2017 and both are issued by a court. Wether [sic] or when the investigation

merges to a trial based on a bill of indictment is not clear (not mentioned in the

documents), however, pre-trial-detention in Germany (without trial) is restricted to

25. This opinion of Dr. Holger Matt is, at best, inconclusive as to whether or not a decision to

charge and try the respondent had been taken as of the date of the issue of the EAW. The

fact that an investigation is on-going is not inconsistent with a decision to charge and try.

Indeed, it has been established that such investigation could even lead to a reversal of

the decision to charge and try the requested person (see, in this regard, Minister for

Justice v Olsson [2011] 1 IR 384). The opinion of Dr. Holger Matt falls well short of the

requirement to establish, by cogent evidence, that no decision to charge and try the

respondent has been taken. The statutory presumption that such a decision has been

taken, as set forth in s.21A (2) of the Act of 2003, has not, therefore, been displaced.

Moreover, the opening paragraph of the EAW, which is in the standard, prescribed form,

“This warrant has been issued by a competent judicial authority. I request that the

person mentioned below be arrested and surrendered for the purposes of

conducting a criminal prosecution or executing a custodial sentence or detention

26. There is nothing at all in the opinion of Dr. Holger Matt to displace this statement.

Furthermore, in his letter dated 19th March, 2019, providing additional information, the

“I hope my elaborations have sufficiently answered your request for clarification

and can now enable you to take a decision on the accused’s extradition from

Ireland to Germany, based on the German request of 19 March 2019, for

prosecution in the proceedings 3 Js 416/17…brought by the Krefeld Public

27. It is apparent from the national arrest warrant that the respondent is charged with 28

offences. This concluding paragraph of the letter of the Chief Public Prosecutor indicates

that a decision has also been taken to try the accused, and that that decision had been

taken before the issue of the EAW, which issued after this letter. While the decision of

Donnelly J. in Minister for Justice and Equality v. Alan Gray to refuse surrender on the

grounds that the evidence clearly established that no decision to try the respondent in

those proceedings had been made at the time of the issue of the European arrest

warrant, that decision is of no help to the respondent in this case for the simple reason

that the evidence in Gray was so clear as to constitute cogent evidence sufficient to

displace the statutory presumption in s.21A (2) of the Act of 2003. In the absence of

such evidence in these proceedings, this ground of objection too, must be rejected.

28. It is submitted on behalf of the applicant that both the opinion of Dr. Holger Matt and the

additional information provided make it clear that the respondent will, if surrendered,

have a right to appeal against the arrest warrant, and in particular the custodial element

thereof. This is apparent from the warrant itself, at the back of which there is a section

under the heading “information regarding legal challenges to the arrest warrant”. It is

stated that the respondent may file an appeal against the arrest warrant. He is also

entitled to request a review of the remand in custody. These appear to be two separate

processes available to the respondent. They may be conducted without a hearing, but a

hearing must be held if the respondent so requests. There is a qualification to this

“If a hearing has already been held, you are only entitled to a new hearing if you

have been remanded in custody for more than three months, and at least two

months have passed since the last hearing. Furthermore, you are not entitled to a

hearing as long as the main trial has not been concluded or if a judgment imposing

imprisonment or a custodial rehabilitation and a public safety measure was

29. The statement that the respondent would not be entitled to a hearing “as long as the

main trial has not been concluded” is a little bit confusing, and may be as a result of the

translation of the document. There is no doubt at all that the respondent has an

entitlement to appeal the arrest warrant, and in particular the remand in custody element

thereof. This is affirmed unambiguously by his own expert, Dr. Holger Matt. In his

opinion he says “yes, the legal possibility to be released on bail pre-trial follows ss. 116,

116A StPO (Germany Criminal Procedure Code)”. Dr. Holger Matt describes the

“In the case of the execution of remand custody the suspect and/or his defence

lawyer have two possibilities to challenge the court’s decision…”

and he goes on to provide the details of the challenges available. Accordingly, the

objection to surrender on the grounds that the respondent will have no right to bail (or

30. The respondent argues that surrender should be refused because of ambiguity in para. E

of the EAW. It is argued that this cannot be resolved by the Court. It is accepted by the

applicant that by reason of the fact that the issuing judicial authority has both ticked the

box for swindling, and provided full details of all offences at para. E.II of the EAW, that it

is necessary to demonstrate correspondence in relation to each of the offences, rather

than relying upon the ticked box. I am satisfied that this is the correct approach. It is

well established that the Court may take this course, where there is a lack of clarity in an

EAW as to those offences which an issuing judicial authority intends to rely upon para. E.1

of the EAW, the Court will consider if the offences described in the EAW correspond to

offences in the law of the State. This is apparent from the decision of Peart J. in Minister

for Justice, Equality & Law Reform v. Paulauskas [2009] IEHC 32 and the decision of

Donnelly J. in the case of Minister for Justice & Equality v. Ludwin [2018] IEHC 220 in

which case, having found that the issuing judicial authority had made a manifest error in

ticking one of the offences in part E.I of the European arrest warrant, she went on to say,

“A number of decided cases have dealt with the situation where the issuing judicial

authority has completed part E(1), indicating reliance on Article 2(2) of the 2002

Framework Decision, and part E(II), indicating non-reliance. Following on from the

decision of Peart J. in Minister v. Paulauskas [2009] IEHC 32 the High Court has

accepted that this not a bar to surrender provided that correspondence has been

31. The applicant submits that the following offences in this jurisdiction correspond to the

(1) Insofar as the 13 counts of fraud described in para. 7(1) above are concerned and

also insofar as the 10 counts of fraud described in para. 7(2) above are concerned,

all of these offences would correspondent to offences under s.6 of the Criminal

Justice (Theft and Fraud Offences) Act, 2001. Section 6(1) thereof provides:

“A person who dishonestly, with the intention of making a gain for himself or

herself or another, or of causing loss to another, by any deception induces

another to do or refrain from doing an act is guilty of an offence”.

No contrary argument was advanced ion behalf of the respondent in relation to the

(2) It is submitted on behalf of the applicant that this section applies with equal force

to the acts of the respondent as described at para. 7(2) above, as well as the acts

that the respondent described at para. 7(1) even though in the latter case the acts,

as described in the EAW, describe the respondent using his own bank card.

However, it was argued on behalf of the respondent that it is not an offence in this

jurisdiction for a person to obtain goods using his or own bank card. That may give

rise to civil proceedings, but it is not a criminal offence so therefore the acts

involving the use by the respondent of his own bank card do not correspond to an

offence in this jurisdiction. Moreover, it is necessary that the acts of the respondent

as described allege a dishonest intention on the part of the respondent, in order for

the facts to correspond to the offence created by s.6 of the Act of 2001. The

respondent relies on the decision of Minister for Justice, Equality and Law Reform v

Ivans Desjatnikovs [2008] IESC 53 and [2009] IR 618 in support of this argument.

On the basis of this authority, it is submitted, the acts involving the use by the

respondent of his own bank card do not correspond to an offence in this

It is correct that Desjatnikovs affirms the proposition advanced by the respondent.

In this regard, Denham J. (as she then was ) affirmed (at p.625) the decision of the

High Court (Peart J.) whereby he held that the offence with which the respondent

was charged in that case did not correspond to an offence under s.4(1) of the Act of

2001, because there was no act alleged that came within the concept of dishonesty.

In response to this, it was argued on behalf of the applicant that the EAW clearly

states that the respondent is charged with 10 counts of “fraudulously acquiring

clothing and other items….using his EC card to the bank account number

0127521300….which did not have sufficient cover to honour the direct debits

authorised by the accused”. The use of the word “fraudulously” makes it clear that

the respondent knew that he did not have funds sufficient to cover the purchases,

and that he did not intend to put funds in his account to cover the purchases. So

therefore, it is submitted, this falls squarely within the parameters of the offence

created by s.6(1) of the Act of 2001. The respondent was acting with the intention

(3) As regards the offences of using public transport without having a ticket, it is

submitted that these offences correspond to offences under s.8(1) of the Act of

2001 which provides that a person who, knowing that payment on the spot for any

goods obtained or any service done is required or expected, dishonestly makes off

without having paid, as required or expected, and with the intention of avoiding

payment on the spot, is guilty of an offence. No contrary argument was advanced

32. In my opinion, each of the offences described in the EAW corresponds, in this jurisdiction,

to the offences relied upon by the applicant. No real argument was advanced on behalf of

the respondent as regards the first and third categories of offences. As regards the

second category of offences (the 10 offences that involved purchasing goods with his own

bank card), the argument of the respondent was simply to the effect that it could not be

an offence to use his own bank card. No dishonesty is apparent, and he might, for

example, have had an overdraft facility. It is submitted that this might give rise to a civil

action, but it does not indicate an offence. However, it is clear that it is alleged that the

respondent was acting fraudulently, and with the intention of causing the credit institution

a loss, knowing that he had no funds to meet the withdrawal. In my view this does indeed

correspond to an offence under s.6 of the Act of 2001, as claimed by the applicant. This

33. For all of these reasons, the objections of the respondent must be rejected. I am satisfied

that it is appropriate for the Court to make an order for the surrender of the respondent

pursuant to s.16 of the Act of 2003.

Result: Surrender was ordered

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