Min for Justice v Fil

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 13 March 2009
• Neutral Citation: [2009] IEHC 120
• Docket Number: Record Number: No 39 Ext./2008
• Court: High Court
• Date: 13 March 2009

[2009] IEHC 120

THE HIGH COURT

Record Number: No 39 Ext./2008

Min for Justice v Fil

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Tomasz Fil

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 279(1)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17

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

FURLONG, STATE v KELLY 1971 IR 132

WYATT v MCLOUGHLIN 1974 IR 378

MIN FOR JUSTICE v DUNKOVA UNREP PEART 30.5.2008 2008 IEHC 156

MIN FOR JUSTICE v WROBLEWSKI UNREP PEART 9.7.2008 2008 IEHC 263

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

MYLES v SREENAN 1999 4 IR 294 1999/20/6149

MIN FOR JUSTICE v MAZURKIEWICZ UNREP PEART 17.12.2008 2008 IEHC 377

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(2)

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

EXTRADITION

European arrest warrant

Correspondence - Issuing state indicating on warrant that offence one of "bugrlary" - Theft - Whether correspondence made out - Whether order for surrender of applicant should be made - Criminal Justice (Theft and Fraud Offences) Act 2001, s 4 - European Arrest Warrant Act 2003 (No 45) - Myles v Sreenan [1999] 4 IR 294 and Attorney General v Scott Dyer [2004] 1 IR 40 followed; Minister for Justice v Dunkova [2008] IESC 156 (Unrep, Peart J, 30/5/2008) and Minister for Justice v Wroblewski [2008] IEHC 263 (Unrep, Peart J, 9/7/2008) distinguished - Order for surrender of respondent (2008/39EXT - Peart J - 13/3/2009) [2009] IEHC 120

Minister for Justice v Fil

Facts: The surrender of the respondent was sought by a judicial authority in Poland for the respondent to serve a sentence of imprisonment imposed on him described on the warrant as being for burglary, for breaking into a fuel tank. Three candidate offences for correspondence were put forward, namely theft pursuant to s. 4 Criminal Justice (Theft and Fraud Offences) Act 2001, handling stolen property, contrary to s. 17 of the Act of 2001 and the offence of conspiracy to commit theft. It was submitted that the elements of the tests needed to prove such offences were not present.

Held by Peart J. that the Court was entitled to look at the facts as set out in the warrant and to conclude that the respondent did acts which if done in the State would have constituted an offence under s. 4 of the Act of 2001. Correspondence was established with that offence in respect of all of its constituent elements. The Court would make the order for surrender which was sought.

Reporter: E.F.

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought by a judicial authority in Poland under a European arrest warrant which issued there on the 21^st August 2007. That warrant was endorsed by the High Court for execution here on the 20^th February 2008, and the respondent was duly arrested on foot of same on the 10^th November 2008. On the following day, he was brought before the High Court as required by the provisions of s. 13 of the European Arrest Warrant Act, 2003, as amended, and has been remanded from time to time thereafter pending the hearing of this application for an order for his surrender.

2 There is no issue raised as to the respondent's identity and I am satisfied from the affidavit evidence of the arresting Garda officer, Sgt, Kirwan, that the person who is before the Court is the person in respect of whom this European arrest warrant has been issued.

3 The surrender of the respondent is sought so that he can serve a sentence of imprisonment which was imposed upon him on the 9^th April 2002 following his conviction in respect of an offence contrary to Article 279 (1) of the Polish Penal Code, details of which are set out in the warrant. Additional information from the judicial authority describes that offence as one of "burglary". That sentence was at first suspended for a probationary period of three years. However, according to certain additional information furnished to the Central Authority here by letter dated 28^th January 2008, the conditions of suspension were infringed by the respondents and on the 28^th July 2004 the suspension was lifted and the Court ordered that the sentence be served. However it was learned that the respondent had gone abroad, and it was subsequently established that he was in this country. It appears from further additional information contained in a letter dated 5^th February 2009 that the respondent was aware of the conditions of suspension, and that he breached them by firstly not making restitution to the injured party, and also by committing another offence during the period in question.

4 The sentence of one year's imprisonment meets the minimum gravity requirement.

5 No undertaking is required under s. 45 of the Act as the respondent was present at his conviction and sentence.

6 The offence for which he was convicted is one in respect of which correspondence or double criminality must be established before this Court may order his surrender, and I will come to that. The only issue pursued on this application relates to that issue.

7 I am satisfied that there is no reason to refuse to order surrender by virtue of sections 21A, 22, 23 or 24 of the Act, and I am satisfied, subject to reaching a conclusion in relation to correspondence, that surrender is not prohibited by any provision of Part III of the Act or by the Framework Decision.

8 The offence for which the respondent was convicted and sentenced is set forth in the warrant as follows:

"On some unspecified days in the month of November 2001 at … ....., acting together and under arrangement with Lukasz Fil and a juvenile of known identity, as a perpetrator of a series of offences, they four times broke into the fuel tank of a KRAS truck with the registration no. RK 04591 using a master key to unlock the vehicle's safety device; afterwards, they would steal diesel oil in the amount of c.15 litres at a time, worth in total of c. PLN 150.00, thus acting to the detriment of the company ..... in Krosno."

9 Three candidate offences for correspondence are put forward by the applicant - firstly an offence of theft under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act2001 ("the 2001 Act"), secondly an offence of handling stolen property contrary to s. 17 of that Act, and thirdly, an offence of conspiracy to commit theft contrary to Common Law.

10 I am not satisfied that the acts of the respondent set forth in the warrant meet the requirements of the second candidate offence namely a handling offence.

11 The issue to be determined is whether these acts meet the requirements of a s. 4 theft offence and therefore also an offence of conspiracy to commit theft contrary to Common Law.

12 The relevant provisions of Section 4 of the 2001 Act provide as follows:

13 2 "4. - (1) Subject to section 5, a person shall be guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

14 (2) For the purposes of this section a person does not appropriate property without the consent of its owner if -

15 (a) the person believes that he or she has the owner's consent, or would have the owner's consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated, or

16 (b) (except where the property came to a person as trustee or personal representative) he or she appropriates the property in the belief that the owner cannot be discovered by taking reasonable...