Min for Justice v Jankowski

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 14 October 2010
• Neutral Citation: [2010] IEHC 401
• Date: 14 October 2010
• Court: High Court
• Docket Number: Record Number: No. 183 Ext/2010

Min for Justice v Jankowski

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Damian Jankowski

Respondent

[2010] IEHC 401

Record Number: No. 183 Ext/2010

THE HIGH COURT

EXTRADITION

European arrest warrant

Correspondence -Onus of proof - Portion of sentence still to be served - Driving offence - Fraud offence - Whether respondent "fled" from issuing state before serving sentence - Whether respondent had full knowledge that part of sentence remained outstanding - Whether inference could be made - Minister for Justice, Equality and Law Reform v Slonski [2010] IESC 19, (Unrep, SC, 25/3/2010) and Minister for Justice, Equality and Law Reform v Sliczynski [2008] IESC 73, (Unrep, SC, 19/12/2008) considered - European Arrest Warrant Act 2003 (No 45), ss 10(d) and 20 - Road Traffic Act 1961 (No 24), s 49 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 10, 14 and 16 - Framework decision, art 2.2 - Surrender refused (2010/183EXT - Peart J - 14/10/2010) [2010] IEHC 401

Minister for Justice, Equality and Law Reform v Jankowski

Facts: The surrender of the respondent was sought by the issuing judicial authority in Poland on foot of two separate European arrest warrants. No point of objection was raised as to the first warrant. A point of objection was raised as to the second warrant for an offence corresponding with s. 14 Criminal Justice (Theft and Fraud Offences) Act 2001. A period of sentence still remained to be served and the question arose as to the circumstances surrounding how he left Poland and his knowledge as to this outstanding sentence. The sentence was not suspended and was imposed in the presence of the respondent. It was contended that the respondent was not a person coming within the meaning of s. 10 of the European arrest warrant Act 2003, as amended, and had not "fled" Poland.

Held by Peart J. that the Court could not safely draw the inference that the respondent had fled simply by reference to the fact that a sentence was imposed on him in his presence and that on some later date he left Poland and arrived in the State before having served what remained of the sentence imposed. The applicant had not yet fulfilled the onus on him to satisfy the Court that the respondent was a person as to whom a surrender order could be made. The Court would request that the Central Authority make requests for additional information pursuant to s. 20 of the Act of 2003.

Reporter: E.F

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

ROAD TRAFFIC ACT 1961 S49

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 S14

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

EUROPEAN ARREST WARRANT ACT 2003 S16

MIN FOR JUSTICE v SLONSKI 2010 2 ILRM 387 2010 IESC 19

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

EUROPEAN ARREST WARRANT ACT 2003 S20

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought by an issuing judicial authority in Poland on foot of two separate European arrest warrants dated respectively 6^th February 2009 and 17^th March 2010. I will deal with the second warrant first, since the respondent has raised no points of objection in respect thereof. A single point of objection has been raised in respect of the earlier warrant and I will come to that.

th

2 This warrant seeks the respondent's surrender so that he can first of all be prosecuted for an offence of driving a motor vehicle while under the influence of alcohol, and secondly so that he can serve a sentence of six months imprisonment in respect of a fraud offence. That warrant was endorsed here for execution on the 12^th May 2010, and he was duly arrested on foot of same on the 19^th May 2010. No issue has been raised as to the respondent's identity. Both offences satisfy minimum gravity. Correspondence must be established with the driving offence, but not in respect of the fraud offence since that has been marked in the warrant as being an Article 2.2 offence in respect of which double criminality is not required to be verified. I am satisfied that the driving offence referred to in the warrant corresponds here to an offence under section 49 of the Road Traffic Act 1961 as amended.

3 No undertaking for a retrial is required in respect of the fraud offence for which he has already been convicted and sentenced.

4 I am satisfied that there is no reason why surrender must be refused under the provisions of sections 21A, 22, 23 or 24 of the Act of 2003, and also that surrender is not prohibited under the provisions of Part III of that Act or the Framework Decision.

5 I will make an order for surrender on foot of this warrant.

th

6 This warrant was endorsed for execution here on the 11^th November 2009, and the respondent was arrested on foot of same on the 21^st April 2010, and brought before the Court immediately thereafter. No issue arises as to his identity. His surrender is sought so that he can serve what remains of a one year sentence of imprisonment which was imposed upon him on the 24^th October 2007 in respect of an offence of robbery. According to the warrant he is required to serve a remaining period of nine months and twenty seven days.

7 The offence referred to in the warrant corresponds to an offence in this State contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act,2001. No issue to the contrary has been raised. The offence satisfies minimum gravity and no undertaking for a retrial is necessary, as it is not disputed that he was present for his trial.

8 There is no reason to refuse to order his surrender under sections 21A, 22, 23 or 24 of the Act of 2003, and neither is his surrender prohibited by any provision of Part III of that Act, or the Framework Decision.

9 The point of objection raised by the respondent is that the warrant fails to disclose any facts which could satisfy this Court that the respondent is a person who comes within the provisions of section 10 (d) of the Act of 2003 - in other words that he 'fled' Poland before serving his sentence - and that in these circumstances this Court has no jurisdiction to make any order for surrender even though the requirements of section 16 of the Act of 2003 are satisfied.

10 In this regard, John Byrne BL for the respondent relies heavily upon the judgment of Macken J. inMinister for Justice, Equality and Law Reform v. Slonski, unreported, Supreme Court, 25^th March 2010. He submits that in the present warrant there is nothing to indicate that the respondent was required to remain in Poland after this sentence was imposed, and there is equally nothing to indicate even that he was required to serve the remaining part of this sentence.

11 Section 10 (d) of the Act of 2003 provides:

12 Section 10 (d) provides as follows:

13 2 "10-Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-

14 (a) …

15 (b) …

16 (c) …

17 (d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she-

18 (i) commenced serving that sentence, or

19 (ii) completed serving that sentence,

20 that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state."

21 Mr Byrne submits that until such time as the applicant by reference to what is contained in the warrant has demonstrated that the respondent comes within this provision, there is no onus on the respondent to establish that he did not' flee' in the sense attaching to that word in proceedings of this kind.

22 Anne Marie Lawlor BL for the applicant has submitted that it is perfectly clear from the fact that an unconditional sentence was imposed and that a period still remains to be served that the respondent is a person on whom a sentence of imprisonment or detention has been imposed in respect of the offence, and that he left Poland in the full knowledge that a large part of that sentence remained outstanding, and that in these circumstances there is no necessity for the warrant to contain a specific statement to the effect that the respondent departed from Poland...