Min for Justice v Zmyslowski

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 12 July 2011
• Neutral Citation: [2011] IEHC 286
• Court: High Court
• Date: 12 July 2011

Min for Justice v Zmyslowski

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MICHAL ZMYSLOWSKI

RESPONDENT

[2011] IEHC 286

RECORD 257 EXT/2010

THE HIGH COURT

EXTRADITION LAW

European arrest warrant

Request for consent to further prosecution - Proceedings not covered by warrant - Rule of specialty - Waiver of specialty - Role of central authority - Correspondence - Discretion - Whether court should consent to proposed further prosecution - Whether request lawfully and validly made - Whether document purported to be actual European arrest warrant - Whether document considered s 22(7) request - Whether central authority acted outside prescribed procedures - Whether reasons required by issuing state - Whether correspondence - Rimsa v Governor of Cloverhill Prison [2010] IESC 47, (Unrep, SC, 28/07/2010) and MJE v Trepiak [2011] IEHC 287, (Unrep, Edwards J, 12/07/2011) considered - European Arrest Warrant Act 2003 (No 45), ss 2, 12(8), 13, 16, 22(7), (8) and 38(1)(a)(i) - Criminal Justice (Theft and Fraud) Offences Act 2001 (No 50), s 26 - Framework decision, arts 3, 4, 8(1) and 27 - Consent given (2010/257EXT - Edwards J - 12/07/2011) [2011] IEHC 286

Minister for Justice and Equality v Zmyslowski

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S22(7)

EUROPEAN ARREST WARRANT ACT 2003 S22(8)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 27

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 27.4

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8.1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8.2

PENAL CODE OF THE KINGDOM OF THE NETHERLANDS ART 311

PENAL CODE OF THE KINGDOM OF THE NETHERLANDS ART 231

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12

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

EUROPEAN ARREST WARRANT ACT 2003 S11

EUROPEAN ARREST WARRANT ACT 2003 S12(8)

EUROPEAN ARREST WARRANT ACT 2003 S6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 9

RIMSA v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 28.7.2010 2010 IESC 47

MIN FOR JUSTICE v TREPIAK UNREP EDWARDS 12.7.2011 2011 IEHC 287

EUROPEAN ARREST WARRANT ACT 2003 S2

EUROPEAN ARREST WARRANT ACT 2003 S22

INTERPRETATION ACT 2005 S5

1 JUDGMENT of Mr. Justice Edwards delivered on the 12th day of July, 2011

Introduction:

2 The respondent is the subject of a European Arrest Warrant issued by the Kingdom of the Netherlands on the 10th May 2010. The said warrant was endorsed by the High Court on the 23 ^rd of June 2010 pursuant to s. 13 of the European Arrest Warrant Act 2003 as amended (hereinafter "the Act of 2003"). The respondent was then arrested in this jurisdiction on foot of that warrant on the 6th of September 2010 and on the following day the 7 ^th of September 2010 he was brought before the High Court pursuant to s.13 of the Act of 2003 on which occasion an initial date was fixed for the purposes of s. 16 of that Act. Subsequently, on the 3rd of November 2010, the High Court (Peart J) made an Order pursuant to s. 16 aforesaid directing that the respondent be surrendered to such person as was duly authorised by the issuing state to receive him. I understand that the respondent was in fact surrendered on the 12 ^th of November 2010.

3 The matter now comes before the Court again on foot of a request made by the issuing judicial authority on behalf of the issuing state, seeking the High Court's consent to proceedings being brought against the respondent in the issuing state for an offence which was not covered by the said European Arrest Warrant, which request is made pursuant to s.22(7) of the 2003 Act. Such an application is, in effect, an application by the issuing state for a waiver of specialty in circumstances where Ireland has chosen not to opt out of the specialty provisions contained in the Framework Decision. That being so, the default position is that the rule of specialty applies unless, in response to a request in writing from the issuing state, it is waived by the High Court pursuant to the provisions of s.22(7) and (8) of the 2003 Act.

Relevant provisions in statute law and in the Framework Decision

4 To assist the reader in a better understanding of the legal issues in the case it is appropriate for the Court to set out at this stage the relevant provisions of the Act of 2003 (as amended) and of the underlying Framework Decision.

5 S.22(7) and (8) of the 2003 Act provide respectively:

6 2 "(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to-

7 (a) proceedings being brought against the person in the issuing state for an offence,

8 (b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person's liberty, in respect of an offence, or

9 (c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence,

10 upon receiving a request in writing from the issuing state in that behalf.

11 (8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act."

12 The corresponding relevant provisions of the underlying Framework Decision are contained in Article 27 thereof, and in particular in Article 27(4).

13 Article 27 (to the extent relevant) is in the following terms:

14 2 "1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

15 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

16 3. Paragraph 2 does not apply in the following cases:

17 (g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.

18 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request."

19 Article 3 of the Framework Decision (which the Court does not consider it necessary to reproduce) sets out the grounds for mandatory non-execution of the European arrest warrant and all of these are incorporated in Part 3 of the Act of 2003.

20 Article 4 of the Framework Decision (which, again, the Court does not consider it necessary to reproduce) sets out the grounds for optional non-execution of the European arrest warrant, some of which, but not all of which, the Oireachtas has opted to also include within Part 3 of the Act of 2003.

21 Article 8(1) of the Framework Decision provides:

"The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:"

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;

(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g) if possible, other consequences of the offence."

The offences for which the respondent was surrendered.

22 The European Arrest Warrant dated the 10 ^th of May 2010 sought the surrender of the respondent for prosecution in relation to a number of offences particularised in the warrant. Paragraph 2 of Article 2 of the Framework Decision was validly invoked in respect of each of those offences by the ticking of the box in Part E.1. of the warrant relating to"...