Min for Justice v Tokarski

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 09 March 2012
• Neutral Citation: [2012] IEHC 148
• Court: High Court
• Date: 09 March 2012

Min for Justice v Tokarski

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

ARKADIUSZ TOKARSKI

Respondent

[2012] IEHC 148

Record No 328 EXT/2011

THE HIGH COURT

EXTRADITION

European Arrest Warrant

Trial in absentia - Undertaking from issuing state - Polish trial process - Jurisdiction - Whether "trial and conviction" should be interpreted as understood in Irish law - Whether plea of guilty before Polish police and State prosecutor a part of Polish trial process - Whether Irish law permitted recording of conviction as a result of plea of guilty before police or prosecutor - Whether respondent actually arraigned - Whether respondent tried in absentia - Whether surrender should be refused - Minister for Justice v Slicznski [2008] IESC 73 (Unrep, SC, 19/12/2008) applied - European Arrest Warrant Act 2003 (No 45), ss 16 & 45 - Surrender refused (2011/328EXT - Edwards J - 9/3/2012) [2012] IEHC 148

Minister for Justice v Tokarski

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL DAMAGE ACT 1991 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

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

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 S45

EUROPEAN ARREST WARRANT PART D

EUROPEAN ARREST WARRANT ACT 2003 S11

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S20

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

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

1 JUDGMENT of Mr Justice Edwards delivered on the 9th day of March 2012

Introduction:

2 The respondent is the subject of a European Arrest Warrant issued by the Republic of Poland on the 11th of January 2011. The warrant was subsequently endorsed by the High Court for execution in this jurisdiction and it was duly executed on the 21st of September 2011. The respondent was arrested by Garda Martin O'Neill on the 14 ^th of December 2011. following which he was brought before the High Court later on the same day pursuant to s. 13 of the European Arrest Warrant Act. 2003 (hereinafter the Act of 2003). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time ultimately coming before the Court on the 28 ^th of February 2012 for the purposes of a surrender hearing.

3 The respondent 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 Act of 2003 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 Act of 2003.

4 The Court must consider whether the requirements of s. 16 of the Act of 2003. 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.

Uncontroversial s. 16 issues

5 The Court has received an affidavit of Garda Martin O'Neill sworn on the 20th of February 2012 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. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity. The Court is satisfied following its consideration of these matters that:

6 (a) the European arrest warrant was endorsed for execution in this State in accordance with s. 13 of the 2003 Act;

7 (b) the warrant was duly executed;

8 (c) the person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

9 (d) the warrant is in the correct form;

10 (e) the warrant is a conviction type warrant and the respondent is wanted in Poland to serve outstanding sentences in respect of two offences particularised in Part E of the warrant;

11 (f) correspondence can be demonstrated between the first offence particularised in the warrant and the offence in Irish law of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997;

12 (g) correspondence can also be demonstrated between the second offence particularised in the warrant and the offences in Irish law of criminal damage, contrary to s. 2 of the Criminal Damage Act, 1991 and assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997

13 (h) as an aggregate penalty was imposed by the court of trial in Poland amounting to one year and two months imprisonment, the requirements as to minimum gravity are met in circumstances where the minimum gravity threshold under s. 38(1)(a)(ii) of the Act of 2003 is a sentence of four months imprisonment or deprivation of liberty.

14 (i) 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) of the Act of 2003, to refuse to surrender the respondent;

15 (j) the Court is also unaware of any circumstance which would cause it to consider that the surrender of the respondent for the offences particularised in the warrant is prohibited, either under Part 3 of the Act of 2003, or on foot of the Framework Decision (including the recitals thereto).

16 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 point of objection

17 The sole point of objection proceeded with at the hearing, and the central issue in the case, is the respondent's contention that he was tried in absentia, and that in the absence of an undertaking from the issuing state that he would receive a re-trial the Court is obliged under s. 45 of the Act of 2003 to refuse to surrender him. The applicant does not concede that the respondent was tried in absentia. It is necessary in the circumstances for the Court to examine the evidence.

The evidence

The respondent's evidence

18 The respondent relies upon two affidavits sworn personally by him, on the 30th day of January 2012, and on the 28 ^th day of February 2012, respectively.

19 The following paragraphs from the affidavit sworn on the 30 ^th day of January 2012 are relevant to the point at issue.

20 2 "5. I have been living in Ireland since September 2005 and I am well settled here now. I live with my brother. There are three of us brothers. My younger brother is here too. My dad is deceased and my mother spends most of her time living with us too.

21 6. In July 2009 I travelled back to Poland for my brother's wedding. That was the only reason I went to Poland as my life is here now and I have no other business there. My brother got married in Poland on 26 July 2009 and we had a big celebration. I drank a lot both the day and on the next day and on 27th of July when I was arrested by the Polish police I was very drunk.

22 7. I was questioned by the police while I was drunk. The police did not want to give me a chance and I have no recollection of being offered a lawyer. I could have done with one. I was not in any state to freely or voluntarily confess to anything. I did not go to any court and I was not informed about any court hearing. I don't believe there was any court hearing at or around the time of my arrest.

23 8. I returned to Ireland at the end of July or the start of August 2009 and I have not returned to Poland since. I have no business there now. I was not informed about any court hearing on 1 December 2009 or otherwise and on that basis I did not attend."

24 The respondent's supplemental affidavit sworn on the 28th day of February 2012 seeks to correct one point in his earlier affidavit. He avers:

25 2 "3. Further to my original affidavit I wish to correct an error and say that I returned to Poland in October 2009 where I met the police and I returned to Ireland thereafter and I have not returned to Poland since."

The applicant's evidence

26 The applicant relies firstly on the terms of the European arrest warrant itself, and in particular the contents of Part D thereof.

27 Pursuant to s. 11 of the Act of 2003, Part D of a European arrest warrant is required to he completed in the case of a decision rendered in absentia. Where it applies the issuing judicial authority must indicate whether item 1 or item 2 as recited within that part applies in the circumstances of the...