Min for Justice v Mazurek

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 13 May 2011
• Neutral Citation: [2011] IEHC 204
• Court: High Court
• Date: 13 May 2011

[2011] IEHC 204

THE HIGH COURT

Record No No 245 EXT/2010

No 246 EXT/2010

No 247 EXT/2010

No 248 EXT/2010

No 249 EXT/2010

Min for Justice v Mazurek

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE AND LAW REFORM

Applicant

- AND -

MICHAL SEBASTIAN MAZUREK

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(i)

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S81

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S82

EUROPEAN ARREST WARRANT ACT 2003 PART 3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003)

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO. 3) ORDER 2004 SI 206/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO. 3) ORDER 2004 SI 206/2004 SCHED

MIN FOR JUSTICE v SAWCZUK UNREP HIGH 4.2.2011 2011 IEHC 41

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

ORCHOWSKI v POLAND UNREP ECHR 22.10.2009 (APPLICATION NO 17885/04)

EUROPEAN ARREST WARRANT ACT 2003 S2

1 JUDGMENT of Mr Justice Edwards delivered on the 13th day of May 2011

Introduction:

2 The respondent is the subject of five European Arrest Warrants issued by the Republic of Poland on the 15 ^th of April, 2008; the 29 ^th of April, 2008; the 10 ^th of November, 2009; the 8 ^th of December, 2009 and the 1 ^st of June, 2010, respectively. All five warrants were endorsed for execution by the High Court in this jurisdiction on the 23 ^rd of June, 2010.

3 The first, third and fourth warrants in time are conviction type warrants on foot of which the respondent is wanted in the Republic of Poland to serve sentences, alternatively the balance of sentences, outstanding in respect of various offences of which he has been convicted in Poland and which are particularised in those warrants. The second and fifth warrants in time are prosecution type warrants on foot of which the respondent is wanted so that he might be put on trial for the offence(s) particularised in those warrants.

4 The respondent was arrested by Garda Michael Barry at 22 Main Street, Youghal, Co Cork on the 3 ^rd of September, 2010 but does not consent to his surrender to the Republic of Poland. 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.

5 The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. 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. In so far as specific points of objection are concerned, the Court is required to consider a number of specific objections to the respondent's surrender on foot of each of the five European Arrest Warrants. Some of these objections are common to all five cases, while others are case specific.

6 The following objection is common to all five cases:

7 "The surrender of the respondent in respect of the said offence(s) to the Republic of Poland is prohibited by section 37 of the European Arrest Warrant Act 2003 because there are substantial grounds for believing that if the respondent were returned to the requesting country he would be exposed to a real risk of being subjected to inhuman and degrading treatment arising from the conditions in prison in Poland contrary to, inter alia, Article 3 of the European Convention on Human Rights."

8 In addition, the following case specific objections are pleaded:

Re: Warrant No 1. of 5. - 15 ^th April, 2008

"The proposed surrender of the respondent on the conviction for "using violence" is in breach of section 38 (1) (a) of the Act of 2003 in that to correspond to an offence under Irish law, the "using violence" would have to be without lawful excuse and without consent of the injured party. The absence of lawful excuse and consent is not asserted. Though there may be some basis for inferring lack of consent, there is no basis for inferring absence of lawful excuse."

Re: Warrant No 2. of 5. - 29 ^th April, 2008

9 "The proposed surrender of the respondent on the conviction as set out in the warrant is in breach of section 38 (1) (a) of the Act of 2003 in that:

10 (a) to correspond to an offence under Irish law, the "cutting of a control cable" would have to be, inter alia, without lawful excuse and without the consent of the owner. The absence of lawful excuse and consent is not asserted. Though there may be some basis for inferring lack of consent, and there is no basis for inferring absence of lawful excuse.

Re: Warrant No 4. of 5. - 8 ^th December, 2009

11 2 "1. The surrender of the respondent is in breach of section 45 of the European Arrest Warrant Act 2003. The said convictions in: Case reference XIX K 507/06: judgment of the District Court of Lublin, dated the 28 ^th of April 2006, imposing a sentence of 1 year and 4 months for the offences of

12 (i) "demolishing jointing chamber manhole" incurring loss,

13 (ii) making a threat to kill,

14 respectively, were imposed in absentia without actual advance notification of the trial giving rise to the said convictions being given to the respondent. No undertaking pursuant to section 45 (b) (i) of the Act of 2003 has been furnished.

15 2. The proposed surrender of the respondent in respect of case reference XIX K 507/06, on foot of the judgement of the 28 ^th of April 2006, is in breach of section 38 (1) (a) of the Act of 2003 due to lack of correspondence in respect of a vital part of the judgment, namely, the offence of "demolishing a manhole" which offence is said to be "covered" by the said judgment. The said judgment of the District Court of Lublin dated the 28 ^th of April, 2006 imposed a sentence of 1 year and 4 months for the offences of:

16 (a) "demolishing jointing chamber manhole" incurring loss,

17 (b) making a threat to kill."

Uncontroversial s. 16 issues

18 The Court has received an affidavit of Garda Michael Barry sworn on the 17 ^th of November, 2010 and has also received and scrutinised copies of the European Arrest Warrants in this case. Moreover the Court has also inspected the original European Arrest Warrants which are on the Court's files and notes that they each bear this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

19 (a) the person before it is the person in respect of whom the five European Arrest Warrants with which it is presently concerned were issued;

20 (b) the five European Arrest Warrants in question have each been endorsed for execution in accordance with s. 13 of the 2003 Act;

21 (c) the five European Arrest Warrants in question are each in the correct form;

22 (d) subject to an adjudication and ruling on the issue raised by way of specific objection to the fourth warrant in time (i.e European Arrest Warrant No 4. of 5. - dated 8 ^th December, 2009) the respondent was not in any other case or instance tried in absentia such as to require an undertaking with respect to a re-trial;

23 (e) the 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;

24 (f) subject to an adjudication and ruling on the s.37 objection that has been raised in respect of all five warrants, and also subject to an adjudication and ruling on the case specific objections as to correspondence raised in respect of the first, second and fourth warrants respectively, the surrender of the respondent is not otherwise prohibited by Part 3 of the 2003 Act, or by the Framework Decision (including the recitals thereto).

25 (g) Without prejudice to (f), subject to the Court being satisfied as to correspondence in respect of the offences in first, second and fourth warrants respectively which are the subject of a specific objection based upon an alleged lack of correspondence on the which the Court must adjudicate, the requirements of s.38(1)(a) in relation to correspondence and minimum gravity are otherwise met in each instance.

26 In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) (No 3) Order 2004, S.I. 206/2004 (hereinafter referred to as "the 2004 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 2004 Designation Order, "Poland" (or more correctly the Republic of Poland) is designated for the purposes of the 2003 Act as being a state that has under its national law given effect to the...