September 30, 2008
The European Arrest Warrant – a highly controversial instrument from the third pillar – is the subject of the following comment. Although it has been agreed upon – following from the nature of framework decisions necessitating unanimity – by all Member States’ representatives, another branch of government, the judiciary was less satisfied with the piece of EU legislation. Many constitutional challenges attacked the framework decision, and piles of academic papers are addressing these. I am not touching upon the constitutional issues here, I will much rather present a case study that can faithfully demonstrate how poorly the legislators’ original intentions are reflected in some of the rulings that refuse the enforcement of arrest warrants.
Irish citizen Ciaran Tobin resided in Hungary, working as the director of an insurance company when on 9 April, 2000, he ran over two small children in the Hungarian village of Leányfalu. Guarded by his grandmother, one of the victims was standing on the sidewalk, with the other victim, his sister sitting in her pram next to him, when Ciaran Tobin’s car traveling at a speed between 75-80 km/h way above the allowed speed-limit knocked down the children, who both died on the spot. Although Ciaran Tobin’s travel documents were taken away during the criminal process, he eventually received his passport back upon the request that he wished to go home to attend the wedding of his wife’s sister. He deposited the sum of HUF 500,000 in the form of a so-called insurance, as prescribed in the Hungarian Criminal Procedural Code. He authorized his lawyer to receive his official letters and the trial went on in his absence.
It is unclear why the Hungarian authorities decided to permit Tobin to leave the country on the grounds of the above given circumstances, in view of the fact that during the period in question there was no extradition agreement between the two countries, on the basis of which Ireland would have been obliged to extradite the defendant to Hungary. Therefore, the Hungarian authorities ran a considerable risk that Tobin might not return to Hungary, the country where he was likely to receive a prison sentence – and that was exactly what happened eventually.
In 2002 a Hungarian court sentenced the accused Irish citizen in absentia to a mandatory prison term of three years for the crime of violation of public road rules by negligence causing death. Ciaran Tobin’s lawyers turned to the President of Hungary for presidential pardon, unsuccessfully. In 2005 a Hungarian appeal court granted the possibility of release on parole after one and a half year, i.e. if half of the prison sentence impose had been served. The Hungarian court called upon Mr. Tobin to present himself for the commencement of the punishment, but he failed to return to Hungary. To facilitate the execution of the prison sentence, Hungary issued a European arrest warrant. The Irish High Court rejected this in the first instance on 12 January, 2007, basically on the grounds that the defendant did not flee Hungary, but left it legally. The Supreme Court turned down the ensuing appeal on 3 July, 2007 and the judgment became final.
Section 10 of the Irish Act of 2003, which gave effect to the framework decision – as amended in 2005 – recognizes four different scenarios, where the respondent should be arrested and surrendered to the issuing state. The only scenario which has a likelihood to be applicable to the case is when somebody, who has received a sentence of imprisonment or detention, flees from the issuing state either before commencing that sentence or before completing it. Ciaran Tobin however left Hungary still during the proceedings, rather than after the sentencing, and therefore that legal provision is not pertinent to his case. At the same time the Irish court examined whether Tobin had fled Hungary: this is the condition of surrender set out in the Irish clause. The Judge analyzed the word “flee” in the various versions of the framework decision drafted in different languages. He found that the legislators deliberately chose this expression instead of the more neutral word “leave.” Since Ciaran Tobin left the country, the justice did not think that his departure constituted an act of “fleeing” in the sense implied by the framework. Therefore, Ireland will not hand over the convicted man to Hungary for the purpose of executing the sentence.
The Hungarian court will sustain the arrest warrant until 1 February, 2010, i.e. until the time when the Hungarian statute of limitation prevents the authorities from enforcing the sentence any more. Should Tobin decide to leave the territory of Ireland, another EU member could surrender him to Hungary. In practice, however, the chance of that happening is very slim, indeed: it could only take place, if Tobin were arrested in a third country and the Interpol records revealed that the Hungarian court had issued an arrest warrant against him. According to an even more unlike scenario, Tobin could either return to Hungary voluntarily and report to complete his sentence.
Ireland was showered with criticism in reaction to its decision not to enforce Tobin’s surrender. But before we put the blame squarely on the Irish judges for offering a too literal interpretation of the law or for lacking the courage to give it an activist interpretation, it would be wise if we stopped for a moment to consider whether the Hungarian judicial system had done everything in its power to bring Tobin to justice.
It seems to me that the Hungarian authorities have committed several mistakes. First, Tobin was permitted to leave Hungary on the payment of insurance in the sum of HUF 500,000 regardless of the sizeable risk that he may decide not to return to Hungary. Second, Hungary did not give due consideration to the most obvious alternative, the execution of the sentence in Ireland, even though, if we were to subscribe to the view that retaliation was not the only objective of punishment, that alternative would have been more attractive from the viewpoint of re-socialization. A more prudent approach than asking for surrender would have been to compose the arrest warrant so as to request the detention of the Irish offender in Ireland from the start, since in that case the Irish court could not have been in the position to refer to the difference between “fleeing” and “leaving,” because then the Hungarian judiciary would have asked for the recognition and execution of the Hungarian sentence in Ireland in the spirit of the mutual recognition advocated by the Tampere Convention. This did not happen, and we may ask what can be done ex post facto, i.e, whether the Hungarian state could ask now for the recognition of its judgment and enforce it in Ireland.
A 2005 Communication from the Commission to the Council and the European Parliament on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States urges to permit the enforcement of a prison sentence ordered in one Member State by an other Member State the convict is a national of. The planned related Council Framework Decision however has not been called into life so far. In the lack of a European Union mechanism on the subject, diplomatic consultations were taken place in the Tobin controversy. So far the negotiation between the Hungarian and Irish Justice Ministers on the request of enforcing the judgment against Ciaran Tobin in Ireland turned out to be unsuccessful.
It would be equally unfair, however, to blame the Hungarian authorities for everything. In my opinion, the main problem arises from the lack of the “mutual confidence” described at the Tampere summit as the cornerstone of judicial cooperation. If this mutual confidence existed, custodial sentences issued in any Member State would automatically become enforceable in any other Member State. As things are at the moment, however, we are still light-years away from the realization of that possibility. Quite apart from the theoretical and conceptual differences, the practical implementation of, and the compliance with, the human right standards reveal vast differences all over the European Union. And as long as this continues to be the case, there will be, there can be, no mutual confidence.
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