Attorney General v Jakub Sebastian Piotrowski

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 21 October 2014
• Neutral Citation: [2014] IEHC 540
• Court: High Court
• Date: 21 October 2014

AG v Piotrowski

APPROVED

Mr. Justice Edwards

JUDGMENT

Between:

THE ATTORNEY GENERAL

Applicant

- v -

JAKUB SEBASTIAN PIOTROWSKI

Respondent

[2014] IEHC 540

Record No: No. 155 EXT/2012

THE HIGH COURT

Extradition – Refusal to Surrender – Drugs – Human Rights – Practice and Procedures -Extradition Act 1965 – Human Rights – European Convention on Human Rights – Degrading Treatment

Facts: In the case under review, Ukraine sought the extradition of the respondent with a view to executing a sentence of 9 years imposed upon him by a court in Ukraine on the 7th February, 2006. The offending conduct involved the importation into Ukraine and sale, as part of an organised criminal group, of quantities of prohibited drugs/psychotropic substances. On the 26th June, 2012, the High Court issued a warrant for the arrest of the respondent pursuant to s. 26(1)(b) of the Extradition Act of 1965 and the respondent was arrested on the 23rd August, 2012. The respondent contended that his extradition should be refused on the basis that it would amount to a failure to protect and vindicate various rights guaranteed to him by the European Convention on Human Rights (hereinafter ‘ECHR’), including article 1 (the guarantee that Contracting States, which included both Ireland and Ukraine, would respect the rights and freedoms defined by the Convention); article 3 (the guarantee that no-one would be subjected to torture or to inhuman or degrading treatment or punishment); article 6 (the guarantee of the right to a fair trial) and article 8 (the guarantee of respect for a person”s private and family life and correspondence).

Held by Justice Edwards that based on the evidence before the Court that the respondent”s extradition had been duly requested within the applicable legislative provisions, including the European Convention on Extradition 1957 and the Extradition Act 1965. Justice Edwards was further satisfied that the Court had had produced to it in respect of each offence for which the respondent”s extradition to Ukraine was sought the original/authenticated copy of the conviction and sentence or detention order immediately enforceable. In light of the Article 3 argument, the Court examined the country of origin evidence submitted and it was reasoned that the Court had no confidence that the commitment to change which had been expressed at central government level in Ukraine, even if sincere and genuine, would be adequately reflected on the ground and implemented at the coalface in the Ukrainian prison system, such as to ensure that the respondent”s fundamental rights, and in particular his article 3 rights, would be respected in the event that he was extradited. It was stated by Justice Edwards that there was a real risk that the respondent”s rights under article 3 of the European Convention on Human Rights would be breached, either by his subjection to ill-treatment as a prisoner amounting to torture, alternatively by his subjection to physical conditions of confinement and/or a prison regime amounting to inhuman or degrading treatment or punishment. The sole evidence adduced in support of the case based upon alleged historical breaches of article 6 ECHR was that contained in the respondent”s affidavit, suggesting, that the police subjected him to beatings and coercion in an effort to secure admissions from him; that his conviction was based on coerced, induced and involuntary statements, and that in consequence of this he did not receive a fair trial. Referring to the cases of In Minister for Justice and Equality v. Rostas [2014] IEHC 391 (Unreported, and Othman (Abu Qatada) v. United Kingdom, Application No. 8139/09, 17th January, 2012, the Court determined that absent any evidence from the respondent concerning the process of trial in which he was convicted, the Court was unable to engage with his suggestion that he received an unfair trial. The Court therefore dismissed the article 6 objection. Justice Edwards also reasoned that he was unable to uphold the objection based upon alleged interference with the right to respect for family life under article 8 ECHR. It was determined that, in circumstances where the Court had upheld the respondent”s objection to his extradition based upon article 3 ECHR, the Court was not disposed to make a committal order under s. 29 of the Act of 1965, and ordered the discharge of the respondent.

CRIMINAL CODE OF UKRAINE ART 307 PART 3

CRIMINAL CODE OF UKRAINE ART 27 PART 3

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S8

EXTRADITION ACT 1965 S8(1)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S57

EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000

EXTRADITION ACT 1965 S23

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 12

EXTRADITION ACT 1965 S26(1)

EXTRADITION (AMDT) ACT 1994 S7

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20

EXTRADITION ACT 1965 S3

EXTRADITION ACT 1965 S29(1)

EXTRADITION ACT 1965 S25

EXTRADITION ACT 1965 S26(1)(A)

EXTRADITION ACT 1965 S26(1)(B)

CRIMINAL CODE OF UKRAINE ART 27

CRIMINAL CODE OF UKRAINE ART 307

EXTRADITION ACT 1965 S25(1)(D)

EXTRADITION ACT 1965 S25(1)(E)

EXTRADITION ACT 1965 S10

EXTRADITION ACT 1965 S10(1)

EXTRADITION ACT 1965 S10(3)

EXTRADITION ACT 1965 S10(4)

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S11

AG v DYER 2004 1 IR 40 2004 1 ILRM 542 2004/3/491 2004 IESC 1

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S21(2)

MISUSE OF DRUGS REGS 1988 SI 328/1988 ART 4(1)(A)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

ELLIS v O'DEA & DISTRICT JUSTICE SHIELDS 1989 IR 530

RUSSELL v FANNING & ORS 1988 IR 505

FINUCANE v MCMAHON & ORS 1990 1 IR 165

AG v GARLAND UNREP EDWARDS 27.1.2012 2012/3/541 2012 IEHC 90

AG v O'GARA UNREP EDWARDS 1.5.2012 2013/4/907 2012 IEHC 179

EXTRADITION ACT 1965 S29

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)

CRIMINAL CODE OF UKRAINE ART 391

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783 2011 1 ILRM 157 2010/36/8976 2010 IESC 45

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011/36/10241 2011 IEHC 204

MIKLIS v DEPUTY PROSECUTOR GENERAL OF LITHUANIA 2006 4 AER 808 2006 AER (D) 146 (MAY) 2006 EWHC 1032 (ADMIN)

MIN FOR JUSTICE v MACHACZKA UNREP EDWARDS 12.10.2012 2012/27/7744 2012 IEHC 434

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2013/33/9736 2013 IEHC 62

MIN FOR JUSTICE v MCGUIGAN UNREP EDWARDS 16.4.2013 2013/34/10150 2013 IEHC 216

MIN FOR JUSTICE v ROSTAS UNREP EDWARDS 1.7.2014 2014 IEHC 391

OTHMAN v UNITED KINGDOM 2012 55 EHRR 1 32 BHRC 62

MIN FOR JUSTICE v E (T) UNREP EDWARDS 19.6.2013 2013/32/9460 2013 IEHC 323

MIN FOR JUSTICE v G (RP) UNREP EDWARDS 18.7.2013 2013/32/9609 2013 IEHC 54

1 Judgment of Mr Justice Edwards delivered on the 21st day of October, 2014

Introduction:

2 In these proceedings Ukraine seeks the extradition of the respondent with a view to executing a sentence of 9 years deprivation of liberty imposed upon him by a court in Ukraine on the 7 ^th February, 2006, in respect of an offence charged under article 307, part 3 in conjunction with article 27, part 3 of the Criminal Code of Ukraine. In summary, the offending conduct involved the importation into Ukraine and sale, as part of an organised criminal group, of quantities of prohibited drugs/psychotropic substances, specifically methylenedioximethamphetamine (MDMA) and amphetamine.

3 The Court that convicted and sentenced the respondent was the "??????? ????????????? ??? ?????????? ?????? (???????)" which has been variously translated in the papers before me as "Lutskyy District Court in Volynska Oblast, Ukraine"; "Lutsk District Court, Volyn Region, Ukraine" or the "Lutsk Municipal Court in Volyn Region, Ukraine". However, it is clear that these slightly different names are just an artifact of translation and that they all refer to the same court.

Legislation and international agreements

4 The application of Part II of the Extradition Act 1965 (hereinafter the Act of 1965) is governed by s.8 thereof.

5 Section 8(1) (as substituted by s. 57 of the Criminal Justice (Terrorist Offences) Act 2005) provides:

"Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Minister is satisfied that reciprocal facilities to that effect will be afforded by another country, the Minister for Foreign Affairs may, after consultation with the Minister, by order apply this Part-"

(a) in relation to that country, or

(b) in relation to a place or territory for whose external relations that country is (in whole or in part) responsible."

6 Both Ireland and Ukraine are parties to the European Convention on Extradition 1957 and the Minister for Foreign Affairs has applied Part II of the Act of 1965 to Ukraine by means of the Extradition Act 1965 (Application of Part II) Order, 2000 ( S.I. No. 474 of 2000).

7 Section 23 of the Act of 1965 provides that:

"A request for the extradition of any person shall be made in writing and shall be communicated by -"

(a) a diplomatic agent of the requesting country, accredited to the State, or

(b) any other means provided in the relevant extradition provisions."

8 Article 12 of the European Convention on Extradition 1957 provides:

9 2 "1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.

10 2. The...