Min for Justice v Polak

• Jurisdiction: Ireland
• Judge: Ms Justice Margaret Heneghan
• Judgment Date: 09 March 2015
• Neutral Citation: [2015] IEHC 156
• Court: High Court
• Docket Number: Record No 24 EXT/No 2014
• Date: 09 March 2015

Min for Justice v Polak

no Redaction Needed

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

Between:

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

- and -

GRZEGORZ POLAK

Respondent

[2015] IEHC 156

Record No 24 EXT/No 2014

THE HIGH COURT

Crime and sentencing – Art. 8 of the European Convention on Human Rights – Extradition – Public interest

Facts: The respondent had challenged his extradition to Poland on the grounds of defects in warrants, delay and disruption of family rights.

Ms Justice Margaret Heneghan granted an order for the surrender of the respondent. The Court held that the warrant did not contain any infirmity as it appropriately gave detailed and correct particulars about the respondent. The Court found that the delay in execution of arrest warrants by the Polish authorities could be dealt at ease in Poland. The Court found that the respondent being fugitive should be brought to trial and any consideration to his family or private life would be negated in lieu of strong public interest.

1 Judgement of Ms Justice Margaret Heneghan delivered on the 9th day of March, 2015.

Introduction.

2 The respondent is the subject of a European arrest warrant dated the 23 ^rd of June 2009, and issued by the District Court in Rzeszow, Poland, which is a designated state for the purposes of the Act, pursuant to S.I. 2006 of 2004. No issue is taken by the Respondent in this regard.

3 The warrant is based on an arrest warrant dated the 13 ^th of November 2008, for the temporary detention of Mr Polak for a term of two months following the date of arrest. The warrant names the Respondent, Mr Grzegorz Polak, and sets out his sex, his nationality, his date of birth, his place of birth, and then details of his residency. In this regard, there is an address given in Poland and then the warrant sets out the country of Ireland with address unknown. It appears from that information that it was known to the Polish authorities, on the date of the warrant, that the respondent was in Ireland.

4 The warrant sets out the decision on which the EAW is based and the maximum sentence which could be imposed in this case, where the respondent is wanted for prosecution, is 12 years. The temporary detention for two months following the date of his arrest is not a sentence but follows his being surrendered from Ireland, if he is so surrendered. No sentence has yet been imposed, as the Respondent is sought for prosecution for a single offence dated 14 ^th of June 2006, namely the beating and causing of injures to a named person and the misappropriation of a Nokia 6610, an ID card and two ATM cards worth a total of 2,000 Polish Zlotys, or €46.50. The warrant also sets out that the offence for which Mr Polak is now wanted for trial, was committed

"within the period of five years following serving at least six months of a custodial sentence adjudicated for a similar intentional offence by a judgment of the regional court is Rzeszow, based on which Mr Polak was given 1 years custodial sentence and, moreover, during a period of 5 years following serving of at least 6 months of custodial sentence adjudicated for a similar intentional offence by a judgment of the regional court is Rzeszow, based on which he was given 1 year of custodial sentence."

5 The warrant also sets out the list of "ticked box" offences under the framework decision for which it is not necessary to establish correspondence; countries involved in the framework decision accept that these offences exist. In this case, the offence is a ticked box offence and once a box has been selected by the issuing authority this Court is not required to go behind that, unless there is a manifest error on the face of the warrant.

6 The judicial authority which issued the warrant is the President of the District Court in Rzeszow and that is an appropriate issuing judicial authority. The original warrant is signed and dated. Those are the formalities of the EAW; it was endorsed by Mr Justice Edwards for execution on the 4 ^th of February 2014, following its transmission to the Central Authority in Dublin on the 27 ^th of January 2014. The Respondent was then arrested on the 6 ^th of May 2014. No issue is being taken by the Respondent in relation to the arrest.

7 The Court was referred to the affidavit of Garda Makowski, the arresting garda and in particular the averment at paragraph 9 that Garda Makowski was satisfied that the person arrested was the person named on the warrant.

8 The court was referred to additional information obtained by the Applicant, following the receipt of points of objection and an affidavit of Mr Polak (a copy of which was furnished to the Polish authorities) in the case in which the respondent states he had already been convicted and sentenced to two years for the offence dated 14 ^th June 2006. Arising therefrom, additional information was sought from the Polish authorities, which they received on the 21 ^st October, 2014. Their reply is dated 30th of October 2014 and it states as follows:-

"In response to the request for supplementary information received on 21st of October 2014 we explain that pursuant to the judgment of the District Court in Rzeszow of the 14th of March 2008, reference No. II K1217/06 Grzegorz Polak was sentenced to the penalty of two years' deprivation of liberty. As a result of an appeal, the Court of Appeal revoked the judgment under appeal and referred the case to the court of first instance for reconsideration. However, the case cannot be completed because Grzegorz Polak, hiding out from justice, left the country. Therefore the District Court issued an order of temporary arrest for the period of two months, from the date of detention, which constitutes the basis for issuing European arrest warrant for the fugitive. For this reason, we uphold the request to turn in Grzegorz Polak to Poland on the basis of the European arrest warrant No. IIKOP41/09. At the same time, we inform that the arrest form contained an incorrect reference number of the District Courts case. Instead of the correct reference number II K 492/08, an incorrect reference number (II K 50/07) was stated. Please do not hesitate to contact us if you need any explanations or additional information."

Submissions on behalf of the Respondent.

9 The Respondent submitted that under Article 8 of the European Convention onHuman Rights surrender would be a disproportionate interference with Mr Polak's rights under Article 8 and rights of the family. These submissions were made on three bases:

10 (1) the defects in the warrant;

11 (2) delay; and

12 (3) his family right and his family's rights.

13 No issue was taken in relation to the detail on the warrant in relation to his name, his address, his sex, his nationality, his date of birth, his place of birth, or his residence in Poland, but the court was told that issue was being taken in relation to the detail of "Ireland - address unknown", as it was submitted that this was very relevant to the issue of delay. It was submitted that it shows that the Polish state, have known that Mr Polak has been in Ireland since, the very latest, the 23 ^rd of June 2009, which is the date the warrant was issued.

14 In this regard, it was submitted the following dates were of relevance:

15 · The date of the alleged offence - the 14 ^th of June 2006;

16 · The date of 14 ^th of March 2008 - where the District Court in Rzeszow sentenced Mr Polak to two years;

17 · The month of April 2008 when Mr Polak came to Ireland as set out in his affidavit at paragraph 6;

18 · The month of October 2008 when Mr Polak met his partner, as set out in the affidavit at paragraph 6;

19 · The date of the arrest warrant, the 13 ^th of November 2008;

20 · The date of the 23 ^rd of June 2009, when the European arrest warrant issued.

21 It was submitted that Mr Polak was sentenced on the 14 ^th of March 2008 to two years in prison, that he subsequently appealed that decision, that he left during the currency of the appeal in April 2008 and that the bench warrant then issued on the 13 ^th of November 2008. It was submitted that, from these dates, this court could draw an inference that the Polish authorities knew of Mr Polak's whereabouts in Ireland at an early stage and this feeds into the argument of overall delay in the issuing of the warrant and the transmission of the warrant on the 27 ^th of January 2014.

22 Mr Polak was arrested on the 6 ^th of May, 2014 and was admitted to bail on that date. It was submitted that he was already convicted in respect of the offence, that he appealed in respect of it and he didn't know that his appeal was successful and was remitted for re-hearing. It was submitted he was not hindered from leaving Poland, and that although the warrant refers to him as a fugitive, he himself says different. It was submitted this Court can take this into account when determining the issue of Article 8, and the court was referred to the judgments of Mr Justice Edwards in The Minister for Justice and Equality -v- T. E. [2013] IEHC 323 and The Minister for Justice and Equality -v- R.P.G. [2013] IEHC 54.

23 The court was told no argument was being made by the respondent in respect of correspondence.

24 The court was referred again to Paragraph 6 of Mr Polak's affidavit, which deals with his family circumstances. It was submitted this Court can properly take into account the effect of surrender pertaining to children when balancing Article 8 rights in deciding whether the legitimate aim has been overcome and the social pressing need has been diminished.

25 It was submitted Mr Polak came to Ireland, has a work history, paid taxes on the money that he received and that he was in gainful employment. This court notes there is no supporting evidence, documentary or...