Min for Justice v Ostrowski

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 19 March 2010
• Neutral Citation: [2010] IEHC 200
• Court: High Court
• Date: 19 March 2010

Min for Justice v Ostrowski

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Jaroslaw Ostrowski

Respondent

[2010] IEHC 200

Record Number: No. 89 Ext/2009.

THE HIGH COURT

EXTRADITION

European arrest warrant

Domestic warrant - Surrender sought for prosecution - Domestic warrant relating to somebody else - Information from issuing judicial authority - Corrected version of European arrest warrant - Court ruling amending warrant - Whether warrant on foot of which arrest effected valid - Whether first warrant should been withdrawn - Whether defects significant - Whether significant defects could be overlooked on basis of mutual trust and confidence - Whether wrong information equivalent of no information - Minister for Justice, Equality and Law Reform v Kavanagh (Unrep, Supreme Court, 23/10/2009) followed; McMahon v Leahy [1984] IR 525 considered; Minister for Justice, Equality and Law Reform v Rodnov, (Unrep, Supreme Court, 01/06/2006) distinguished - European Arrest Warrant Act 2003 (No 45), ss 11(1A)(e) and 45 - Surrender refused (2009/89Ext - Peart J - 19/03/2010) [2010] IEHC 200

Minister for Justice, Equality and Law Reform v Ostrowski

Facts the surrender of the respondent was sought so that he could be prosecuted for an offence as set forth in the European arrest warrant. It was submitted on the respondent's behalf that errors contained in the endorsed warrant on foot of which the respondent had been arrested in this State to the effect that it related to another person as the file reference did not relate to the respondent were so fundamental for non-compliance with section 11(1A) of the Act of 2003 as to invalidate the arrest of the respondent on foot thereof. The issuing authority sent a corrected European arrest warrant, which had not been endorsed, to this State when this error came to light.

Held by Mr Justice Peart in declining to order the surrender of the respondent that European arrest warrants had to be carefully prepared so that a person arrested on foot of same was appraised correctly of all relevant information. Minor errors in substance or in form which caused no injustice could be overlooked pursuant, inter alia, to the provisions of section 45C of the Act of 2003, but not every error would be of such little moment. Errors in relation to important information such as an incorrect date of the domestic warrant or incorrect file reference were not so technical or unimportant that they could be overlooked. The correction of those errors by subsequent court order of the issuing state was not sufficient in this case as the respondent had not been arrested on foot of the corrected warrant which had not been endorsed for execution.

Reporter: P.C.

POLISH PENAL CODE ART 62 PAR 1

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

MIN FOR JUSTICE v RODNOV UNREP SUPREME 1.6.2006

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S45C

MCMAHON v LEAHY 1984 IR 524

MIN FOR JUSTICE QUALITY & LAW REFORM v KAVANAGH UNREP SUPREME 23.10.2009

EUROPEAN ARREST WARRANT ACT 2003 S12(7)

1 Mr Justice Michael Peart delivered on the 19th day of March 2010:

2 The surrender of the respondent is sought on foot of a European arrest warrant which issued in Poland on the 7 ^th January 2009. That warrant was endorsed for execution here by order of the High Court on the 22 ^nd April 2009. The respondent was arrested on foot of same on the 19 ^th October 2009, and brought before the High Court on the following day, the 20 ^th October 2009. Thereafter he was remanded from time to time pending the hearing of the present application for his surrender.

3 There is no issue raised as to the identity of the respondent, and in any event I am satisfied from the affidavit evidence of the arresting Garda officer that the person who he arrested and brought before the Court is the person in respect of whom this European arrest warrant has been issued.

4 Surrender is sought so that the respondent can be prosecuted for a single offence described in the following way in the warrant:

"On 11 May 2006 in Wroclaw, acting in violation of the law, he was in possession of psychotropic agents in the form of marihuana - 0.72 grams of the net weight."

5 The warrant indicates that this offence is one coming within Article 62, paragraph 1 of the Polish Criminal Code, and that the maximum punishment for such an offence under that Code is a sentence of three years' imprisonment. In this way, it is submitted by the Applicant that minimum gravity is satisfied, since the maximum punishment exceeds twelve months imprisonment.

6 There are two objections being raised to surrender in this case.

1. Errors in endorsed warrant:

7 Following the respondent's arrest here on the 19 ^th October 2009, the respondent's solicitors corresponded with a lawyer in Poland who informed them by letter dated 10 ^th December 2009 that the European arrest warrant which was endorsed here and on foot of which the respondent was arrested contained errors. It was explained by him that the domestic warrant dated 17 ^th May 2007 on foot of which this European arrest warrant has been issued relates to somebody else entirely, as the file reference given for that warrant, namely II K 687/07, does not relate to the respondent. This error was drawn to the attention of the Central Authority here who in turn brought it to the attention of the issuing judicial authority by letter dated 21 ^st October 2009.

8 The issuing judicial authority replied to the Central Authority by letter dated 26 ^th January 2010. That letter states as follows:

"With reference to the letter of 21.10.2009, I would like to advise you of the occurrence of errors, in the form of obvious misprints, in the European arrest warrant against [the respondent], issued on 07.01.2009, which was sent to you. Therefore I am sending you the enclosed Ruling together with the corrected version of the European arrest warrant (in Polish together with its translation into English). I would also like to ask you to send me information as to how advanced the extradition proceedings are against the mentioned above person."

9 It is clear from the "corrected version" of the warrant that a different file reference has been inserted in paragraph (b) and that the date of the domestic warrant is different. As indicated by this letter, a Court ruling was obtained which sought to correct these two errors. That Ruling is dated 26 ^th January 2010. In all other respects the "corrected version" is the same as that on foot of which the respondent was arrested on the 19 ^th October 2009.

10 On the 13 ^th January 2010, the respondent had filed Amended Points of Objection in view of the information which had come to light in relation to these errors since the filing of his original Points of Objection. The amended points plead that by reason of these errors the warrant on foot of which the respondent was arrested has not been duly issued, is bad on its face and invalid, since the basis on which it was issued - namely the domestic warrant recited therein, related to an entirely different person. In addition it is pleaded that the requirements of section 11(1A)(e) of the European Arrest Warrant Act, 2003, as amended have not been complied with as there is no evidence that the decision of the District Court in Jelenia Góra...