Min for Justice v Wicinski

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 15 April 2011
• Neutral Citation: [2011] IEHC 169
• Court: High Court
• Date: 15 April 2011

[2011] IEHC 169

THE HIGH COURT

Record No 55 EXT/No 2010

Min for Justice v Wicinski

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 -

RADOSLAW WICINSKI

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

CRIMINAL JUSTICE MISCELLANEOUS PROVISIONS ACT 2009 S10

EUROPEAN ARREST WARRANT ACT 2003 S11

EUROPEAN ARREST WARRANT ACT 2003 S11(E)

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S21A

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S22

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S23

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 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 S11(1A)(E)

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

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

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

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

MISUSE OF DRUGS ACT 1977 S3

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

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS REGS 1988 SI 328/1988 REG 4

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE MISCELLANEOUS PROVISIONS ACT 2009 S6

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

MIN FOR JUSTICE v TOBIN 2008 4 IR 42

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

MIN FOR JUSTICE v STANKIEWICZ UNREP SUPREME 1.12.2009 2009/40/9821 2009 IESC 79

1 JUDGMENT of Mr Justice Edwards delivered on the 15th day of April 2011

Introduction:

2 The respondent is the subject of a European Arrest Warrant issued by the Republic of Poland on the 6th of August, 2009. The warrant was endorsed for execution by the High Court in this jurisdiction on the 24 ^th of February, 2010. The respondent was arrested at No 6, Manor Close, Thornbury Estate, Douglas, Cork on the 21 ^st 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.

3 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 addition the Court is required to consider in the particular circumstances of this case three specific objections to the respondent's surrender, namely:

4 (i) the respondent's surrender is prohibited because the requirements of the 2003 Act, and in particular the requirements of s. 10 of that Act (as it was prior to the amendments effected by the Criminal Justice (Miscellaneous Provisions) Act, 2009), have not been satisfied;

5 (ii) the respondent's surrender is prohibited because the requirements of s. 11 of the 2003 Act, and in particular but not confined to the requirements of s. 11(e) of that Act, have not been satisfied;

6 (iii) the respondent should not be surrendered because the European Arrest Warrant fails to comply with s.38 of the 2003 Act and is in breach of the Framework Decision, i.e the requirements with respect to minimum gravity and/or correspondence are not met

Uncontroversial s. 16 issues

7 As no admissions or concessions have been made by the respondent, 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.

8 The Court has received an affidavit of Detective Garda Oisin Cotter sworn on the 16th of March 2011 and has also received and scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest Warrant which is on the Court's file and which bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

9 (a) the person before it is the person in respect of whom the European arrest warrant was issued;

10 (b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the 2003 Act;

11 (c) the High 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.

12 The warrant is a sentence type warrant and the respondent is wanted in the Republic of Poland to serve outstanding sentences in respect of ten offences (particularised in the warrant with reference to three prosecution file reference numbers, namely file II K 311/04; file II K 657/99, and file II K 61/01) imposed upon him on various dates between 2001 and 2004, both years inclusive, either by the District Court in Elblag or by the Regional Court in Elblag. The sentences imposed, the Courts concerned, the relevant dates, and the periods remaining to be served were as follows:

13 · File II K 311/04 - 2 years imprisonment imposed by the District Court in Elblag on the 8 ^th of July 2004, with 2 years imprisonment remaining to be served;

14 · File II K 657/99 - 2 years imprisonment imposed by the District Court in Elblag on the 14 ^th of October 2003, with 2 years imprisonment remaining to be served;

15 · file II K 61/01 - 2 years imprisonment imposed by the Regional Court in Elblag on the 28 ^th of August 2001, with 1 year, 7 months and 5 days imprisonment remaining to be served;

16 Subject to dealing with the specific objection raised in relation to an alleged non-compliance with "s. 11(e)" of the 2003 Act, the Court is otherwise satisfied that the European Arrest Warrant in this case is in the correct form. (There is in fact no s.11(e) in the 2003 Act, and never has been, but the Court presumes that what is meant is s.11(1A)(e) of the 2003 Act as amended. It will deal with the s.11(1A)(e) objection under a separate heading below.)

17 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 Framework Decision.

The evidence adduced by the respondent

18 The respondent has filed an affidavit sworn by him on the 17th of November, 2010. He makes the following averments as to matters of fact at paragraphs 5 - 10 inclusive:

19 2 "5. The European Arrest Warrant states that I received a prison sentence of two years imprisonment in respect of the judgement passed by the District Court in Elblag on the 8th July 2004 in the case II K 311/04. This is correct however it fails to state that the two years imprisonment was suspended for a period of five years which five-year period has since expired. In support of my averment I beg to refer to a certificate from my barrister in Poland Mr Stanislaw Borzdynski who acted on my behalf in respect of this case wherein he clearly states that the sentence of two years imprisonment was suspended for a period of five years at which time has now expired. [Certificate exhibited marked "RW 1"]

20 6. For the avoidance of doubt and for the purpose of clarification at no time was I informed of any other conditions pertaining to the suspension of the judgement imposed. Furthermore I was never informed of any reactivation of the suspended sentence by the Polish authorities nor was I brought before any court for the purposes of the reactivation of the suspended sentence or any suspended sentence.

21 7. The European Arrest Warrant states that I received a prison sentence of two years imprisonment in respect of the judgement passed by the District Court in Elblag on the 14th October 2003 in the case II K 657/99." ....... "Again the statement fails to state that the two years imprisonment was suspended for a period of five years which five-year period has since expired. In support of my averment I beg to refer to a court order from the Polish authorities where it clearly states that the sentence of two years imprisonment was suspended for a period of five years which has now expired. [Court order exhibited marked "RW 2"]

22 8. The European Arrest Warrant states that I received a prison sentence of two years imprisonment in respect of the judgement passed by the District Court in Elblag on 28th August 2001 in the case II K 61/01 and that there is remaining 1 year 7 months and 5 days of imprisonment. This is correct however it fails to state that I even this judgement to the High Court in Gadanse whereupon the remaining...