Min for Justice v Wlodarczyk

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 19 May 2011
• Neutral Citation: [2011] IEHC 209
• Court: High Court
• Date: 19 May 2011

[2011] IEHC 209

THE HIGH COURT

Record No No 229 EXT/2010

No 230 EXT/2010

Min for Justice v Wlodarczyk

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 -

PIOTR WLODARCZYK

Respondent

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 278.1

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

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 245

CRIMINAL JUSTICE ACT 1999 S41

CRIMINAL DAMAGE ACT 1991 S3

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

MIN FOR JUSTICE v FERENCA 2008 4 IR 480 2009 1 ILRM 291 2008/40/8765 2008 IESC 52

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

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(E)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(F)

EUROPEAN ARREST WARRANT ACT 2003 S11

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S21A

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 III

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

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 75.2

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 75.1

CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF POLAND ART 139.1

MIN FOR JUSTICE v SAWCZUK UNREP EDWARDS 4.2.2011 2011 IEHC 41

CONSTITUTION OF THE REPUBLIC OF POLAND ART 91.1

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 SLONSKI 2010 2 ILRM 387 2010/36/9019 2010 IESC 19

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204

TREATY ON EUROPEAN UNION ART 6.1

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783 2011 1 ILRM 157 2010/36/8976 2010 IESC 45

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(1)

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

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

MIN FOR JUSTICE v FIL UNREP PEART 13.3.2009 2009/39/9647 2009 IEHC 120

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

MIN FOR JUSTICE v DUNKOVA UNREP PEART 30.5.2008 2008/40/8749 2008 IEHC 156

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

MIN FOR JUSTICE v SAS UNREP SUPREME 18.3.2010 2010/34/8657 2010 IESC 16

MIN FOR JUSTICE v BUTENAS UNREP PEART 24.11.2006 2006/39/8381 2006 IEHC 378

CRIMINAL JUSTICE ACT 1999 S41(1)

DPP v DUNDON UNREP CCA 13.2.2008 2008/17/3698 2008 IECCA 14

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)

1 JUDGMENT of Mr Justice Edwards delivered on the 19th day of May 2011

Introduction:

2 The respondent is the subject of two European Arrest Warrants issued by the Republic of Poland on the 15 ^th of May, 2008; and the 11 ^th of May, 2009, respectively. Both warrants were endorsed for execution by the High Court in this jurisdiction on the 2 ^nd of June, 2010.

3 The first warrant in time (i.e. the warrant of 15/05/2008) is both a prosecution and conviction type of warrant. To the extent that it is a prosecution type warrant the respondent is wanted in the Republic of Poland for trial in respect of the offence particularised in the warrant under file reference II K 822/06. No box is ticked in respect of this offence and accordingly both correspondence and minimum gravity require to be demonstrated. The offence is particularised in the warrant as follows:

"On the 19 ^th of July 2006 in Klodzko, in the province of Dolny Slask, acting jointly and in co-operation with (an)other person(s), with an intent of appropriation they took a diesel lawnmower worth 1000 Polish zloty and thus they acted to the detriment of Mr Boguslaw Piatek and Mr Zbigniew Loboda."

4 The Court is invited to find correspondence with the offence of theft contrary to s. 4 of the Criminal Justice (Theft & Fraud Offences) Act, 2001.

5 The offence in question is expressed to be contrary to Art 278 § 1 of the [Polish] C.Pen [Code Penal or Penal Code]. It carries a penalty of five years deprivation of liberty, i.e. imprisonment, and so minimum gravity is prima facie satisfied.

6 To the extent that the first warrant in time is also a conviction type warrant the respondent is wanted in the Republic of Poland to serve a sentence of two years imprisonment outstanding in respect of five offences of which he has been convicted in Poland and which are particularised in that warrant under file reference II K 305/05. These are all offences in respect of which paragraph 2 of Article 2 of the Framework decision is said to apply, and in respect of which boxes have been ticked in part E.1. of the warrant relating to "counterfeiting currency, including the euro" and "forgery of administrative documents and trafficking therein".

7 The second warrant in time (i.e. the warrant of 11/05/2009) is a conviction type warrant on foot of which the respondent is wanted in the Republic of Poland to serve a sentence of one year and three months imprisonment outstanding in respect of two offences of which he has been convicted in Poland and which are particularised in that warrant. These offences are particularised in that warrant under file reference II K 108/06 as follows:

8 2 "1. On the 4 ^th/5 ^th of October 2005 in Wojciechowice, in the admin district of Klodzko in the province of Dolny Slask, he stole money at the amount of 1000 Swiss francs, being equivalent to 2,650 Polish zlotys, and to the detriment of Ms Diana Heinrich-Czerkies;

9 2. On the 5 ^th of October 2005 in Klodzko, in the province of Dolny Slask, he made threats to Ms Diana Heinrich-Czerkies that he would beat her up and that he would burn her house all in order to influence her and make her withdraw the notification of offence regarding the theft of money that was to her detriment."

10 The first offence in question is expressed to be contrary to Art 278 § 1 of the [Polish] C.Pen [Code Penal or Penal Code]. The second offence is expressed to be contrary to Art 245 of the [Polish] C.Pen [Code Penal or Penal Code]. A composite or aggregate sentence of one year and three months imprisonment was imposed on the respondent in respect of these offences. Again, the requirement as to minimum gravity is prima facie satisfied.

11 The Court is required to be satisfied with respect to correspondence in respect of the offences in question. In respect of the first offence the Court is invited to find correspondence with the offence of theft contrary to s. 4 of the Criminal Justice (Theft & Fraud Offences) Act, 2001. In respect of the second offence the Court is invited to find correspondence with the offence of intimidation with intent to obstruct a police investigation or obstruct the course of justice, contrary to s. 41 of the Criminal Justice Act, 1999, alternatively the offence of threatening to damage property, contrary to s. 3 of the Criminal Damage Act, 1991.

12 The respondent was arrested by Detective Garda Senan O'Sullivan at Henry Street in Limerick on the 19th of August, 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.

13 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 European Arrest Warrants. Some of these objections are common to both cases, while others are case specific.

14 The following objections are common to both cases:

15 · The respondent is not a person who should pursuant to s.10 (d) of the 2003 Act be surrendered in circumstances where there is no evidence that he fled the issuing state.

16 · The surrender of the respondent is prohibited by s.37 of the 2003 Act because the prison conditions in Poland are such that the respondent's rights under the Constitution and the European Convention on Human Rights would be breached including his right to privacy and also his right not to be subjected to inhuman and degrading treatment or punishment under article 3 of the European Convention on Human Rights.

17 · The surrender of the respondent is prohibited by s.37 of ...