Min for Justice v Wroblewski

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 09 July 2008
• Neutral Citation: [2008] IEHC 263
• Court: High Court
• Docket Number: Record Number: 25/2008
• Date: 09 July 2008

[2008] IEHC 263

THE HIGH COURT

Record Number: 25/2008

Min for Justice v Wroblewski

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Krzysaztof Wroblewski

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S5

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

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S10(d)

EUROPEAN ARREST WARRANT ACT 2003 S10(a)

EUROPEAN ARREST WARRANT ACT 2003 S10(b)

EUROPEAN ARREST WARRANT ACT 2003 S11

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(g)(iii)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(5)

AG v DYER 2004 1 IR 40

MIN JUSTICE v DUNKOVA UNREP PEART 30.5.2008 2008 IEHC 156

FISHERIES (CONSOLIDATION) ACT 1959 S95(1)

LARCENY ACT 1861 S24

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S39(1)(a)(ii)

EUROPEAN ARREST WARRANT ACT 2003 S4A

EXTRADITION

European arrest warrant

Double criminality - Surrender for prosecution for offence requiring verification of double criminality and offence not requiring verification - Surrender for serving of sentence - Points of objection - Whether respondent fled issuing state - Onus of proof - Absence of averment as to knowledge of prosecution - Whether information in warrant insufficient - Form of warrant -Whether length of sentence imposed evident - Correspondence - Absence of facts necessary to ground offence - Composition of sentence - Whether minimum gravity requirement met - Presumption of compliance with obligations by issuing state - Attorney General v Dyer [2004] 1 IR 40 and Minister for Justice, Equality and Law Reform v Dunkova [2008] IEHC 156 (Unrep, Peart J, 30/5/2008) considered - European Arrest Warrant Act 2003 (No 45), ss 4, 5, 10, 11, 13, 16, 38 and 45 - Surrender ordered for prosecution regarding offence not requiring double criminality (2008/25EXT - Peart J - 9/7/2008) [2008] IEHC 263

Minister for Justice, Equality and Law Reform v Wroblewski

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought to the Republic of Poland pursuant to a European arrest warrant dated 3^rd May 2007, which was endorsed here by order of the High Court on the 6^th February 2008. The respondent was duly arrested on the 12^th February 2008 and, as required by s. 13 of the European Arrest Warrant Act, 2003, as amended, was immediately brought before the High Court and remanded thereafter from time to time until the present application for his surrender pursuant to s. 16(1) of the Act was ready to proceed.

2 There is no issue raised as to the respondent's identity, and the Court is satisfied from the affidavit sworn by Sgt. Martin O'Neill, the arresting Garda Officer, that the person who he has arrested and brought before the Court is the person in respect of whom this European arrest warrant has been issued.

3 The respondent's surrender is sought so that firstly he can be prosecuted for two offences, namely of theft and obtaining credit by false pretences; and secondly, so that he can serve a sentence of six months' imprisonment imposed upon him on the 17^th January 2002 in respect of two other offences, namely one of theft and one which can be loosely described as unlawful fishing in a river with nets. It will be necessary to address the issue of correspondence under s. 5 of the Act in respect of the theft and unlawful fishing offences, and I will come to that. But it is not required to have double criminality verified in respect of the offence of obtaining credit by false pretences, as the issuing judicial authority has marked that offence in the warrant as being one within the categories of offences specified in Article 2.2 of the Framework Decision.

4 The respondent was convicted in absentia in respect of the offences for which he has already been convicted, but in the circumstances set forth in paragraph D of the warrant as to notification and the provisions as to re-hearing following surrender render an undertaking pursuant to s. 45 of the Act unnecessary, and in any event, the respondent does not pursue the objection raised at the end of paragraph 2 in his Points of Objection under s. 45 of the Act.

5 In respect of the offences for which he is sought for prosecution the minimum gravity requirement under the Act is met since each offence is one which carries a maximum punishment of imprisonment which exceeds twelve months. In respect of the two offences for which he has been sentenced to one period of six months' imprisonment, minimum gravity, prima facie, is met since a sentence in excess of four months has been imposed and which remains to be served. I say 'prima facie met' because Kieran Kelly BL has raised an issue on correspondence in relation to one of the offences for which this sentence of imprisonment was imposed, and if he is successful in that objection, then a question arises from the fact that the warrant does not say how much of the six months' sentence was applicable to each such offence, and therefore if his surrender is to be ordered only in respect of one of the sentenced offences, Mr Kelly submits that in respect of the other offence this Court cannot be satisfied that it on its own satisfies the minimum gravity requirements of four months. I will return to the issue of correspondence and its potential impact on minimum gravity in due course.

6 Essentially three issues have been raised by the respondent.

7 Firstly, the respondent submits that in the circumstances in which he came to this State he has not fled the issuing state and therefore in respect of the offences for which he has been convicted and sentenced he is not a person who comes within the meaning of s. 10(d) of the Act; and in respect of the offences for which his surrender is sought for the purposes of prosecution, it is submitted that the information contained in the warrant is insufficient to establish that he is a person who comes within s. 10(a) or (b) of the Act.

8 Secondly, it is submitted that the form of the warrant is deficient to the extent that there has been a failure to comply with the provisions of s. 11 of the Act, in so far as it is not evident from the warrant what length of sentence was imposed for each of the offences for which he has already been convicted and sentenced.

9 Thirdly, the issue of correspondence has been raised in respect of the theft and unlawful fishing offences, which, if successful in respect of one of the sentenced offences, has the capacity to affect the question of surrender in respect of the other, as I have just outlined.

10 This issue is raised in two parts, as I have already stated. Firstly in respect of the offences for which he was convicted and sentenced but has not yet served, the respondent states in his affidavit that he came to this country on the 28^th January 2005 as he was not earning enough money in Poland to support his wife and family. Having heard that there were employment opportunities here he came by land as he does not like flying. He says that he was joined in July 2005 by his son, and later by the remainder of his family. He states that he left Poland "in an open, orderly and legitimate fashion". He then goes on to say that he was disappointed to find that these matters are being proceeded with after such a long time. That is the entire of his averment as to his reason for coming to this country. He has not given any evidence that he was unaware before he left that he had been convicted and sentenced of two of these offences in January 2002. In that regard it is worth noting that in his grounding affidavit, the respondent avers that he resided prior to his departure at the same address as that which the issuing judicial authority specifies for him in the warrant.

11 Neither has the respondent given any evidence of his state of knowledge in relation to the remaining offences for which he is sought to be prosecuted. These two offences relate to alleged actions by him firstly on the 23^rd January 2001 in respect of the charge of obtaining credit by false pretences, and between September 2004 and November 2004 in respect of the theft of a pipe. They are therefore alleged to have been committed a short time before his departure from Poland in January 2005. The respondent has confined his averments to his own subjective state of mind as to his reason for leaving Poland. In the absence of any averment that he was unaware that he had been convicted of the first two offences, and sentenced to a term of imprisonment, this Court must hold that he has not even begun to discharge the onus of proof that is upon him to establish that he is not a person who 'fled' for the purpose of s. 10(d) of the Act, and therefore act on the presumption that he did.

12 The same absence of any averment as to his state of knowledge of the prosecution for the remaining two offences for which his surrender is sought for prosecution disentitles him to make any case that he is not somebody against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates, and I am satisfied that there is sufficient detail in the warrant for the Court to be satisfied that the issuing judicial authority has made a decision to prosecute him, and that he comes within the provisions of s. 10(a) of the Act.

13 Under this heading of objection, it is submitted that the form of the warrant is deficient to the extent that there has been a failure to comply with the provisions of s. 11 of the Act, in so far as it is not evident from the warrant what length of sentence was imposed for each of the offences for which he has already been convicted and sentenced. This point needs to be dealt with...