Min for Justice v Zachweija

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 23 November 2011
• Neutral Citation: [2011] IEHC 513
• Court: High Court
• Date: 23 November 2011

[2011] IEHC 513

THE HIGH COURT

Record No No 342 EXT/2010

Min for Justice v Zachweija

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

- AND -

ANDREZJ ZACHWEIJA

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 PART 3

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S41

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

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

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL DAMAGE ACT 1991 S2

ROAD TRAFFIC ACT 1961 S112

ROAD TRAFFIC ACT 1961 S113

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

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.3) ORDER SI 206/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

O'BRIEN v DISTRICT JUDGE COUGHLAN & DPP UNREP KEARNS 29.7.2011 2011 IEHC 330

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.1

EUROPEAN ARREST WARRANT ACT 2003 S45(A)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(I)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(II)

MIN FOR JUSTICE v MCCAGUE 2010 1 IR 456

FARRELL & HANRAHAN THE EUROPEAN ARREST WARRANT IN IRELAND 2011 P209

MIN FOR JUSTICE v BRENNAN 2007 3 IR 732

EXTRADITION LAW

European arrest warrant

Trial - Tried and convicted - Trial in abstentia - Prsence for part of trial - Whether sentencing hearing part of trail - Whether objection to surrender applies where respondent present for part of trial - Whether "tried and convicted" one cumulative process - Whether "trial" connotes Court concerned with issue of guilt and not just procedure - Whether objection to surrender applies to sentencing hearing as opposed to trial - Right to lawyer for re-trial - Whether egregious circumstances existed to resist surrender - Minister v Justice v McCague [2008] IEHC 154, [2010] 1 IR 456 followed - European Arrest Warrant Act 2003 (No 45), s 45 - Surrender ordered (342 EXT/2010 - Edwards J - 23/11/2011) [2011] IEHC 513

Min for Justice v Zachweija

Facts The applicant sought an order pursuant to s. 16 of the European Arrest Warrant Act, 2003 directing that the respondent be surrendered to such person as was duly authorised to receive him by the issuing State, namely Poland. The surrender of the respondent was sought so that he could serve a composite sentence of 3 years and 4 months imprisonment imposed on him on 26 November 2007 in respect of five offences particularised in the warrant. The respondent did not consent to his surrender and in particular objected on the basis that his surrender was prohibited by section 37 of the Act of 2003 on the grounds of the breach of his Constitutional and Convention Rights and was in breach of s. 45 on the basis that he was convicted in absentia within the context of that section. Further information provided by the issuing judicial authority showed that the respondent had previously been tried and acquitted of the offences the subject of the warrant. However, his acquittal was quashed upon appeal and a retrial was ordered. The respondent averred on affidavit that he was not present for the quashing of his acquittal nor for the retrial and he stated that he was not aware of any trial date. The respondent further stated that the last date he appeared in court for trial was 22 October 2007 and he specifically states that he was not and is not running away from justice. It was conceded on the respondent's behalf that he may have been present on some dates on which the case was mentioned for procedural purposes. However, counsel on behalf of the respondent urged the court to adopt a narrow and strict interpretation of what is meant by the word "trial" in s. 45 of the Act of 2003, and submitted that the court should interpret it as being confined to only the date or dates on which the court in the issuing State was engaged in a hearing by way of retrial, and considering the substantive issue as to the respondent's guilt or otherwise of the offences with which he was charged. It was submitted on behalf of the applicant that on 22 October 2007, when the respondent was present in court, the trial was underway and it was adjourned part heard from that date to 19 November 2007.

Held by Edwards J. in ordering the surrender of the respondent: That the respondent's identity was established and it was proved to the court that the warrant was properly endorsed and was in the correct form. Correspondence in respect of all offences contained in the warrant was established by the applicant. Furthermore, in circumstances where a composite sentence of 3 years and 4 months was imposed, the requirements of s. 38(1)(a)(ii) of the 2003 Act were met in respect of each of the offences in question. The words "tried for and convicted" in s. 45(a) of the Act of 2003 refer to one cumulative process and not to two separate and distinct processes. S. 45 ought to be construed as not applying to a respondent unless he was tried and convicted in totality in his absence. On 22 October 2007, a date on which the respondent was present, the trial was underway and was adjourned on a part-heard basis for conclusion to 19 November 2007. Consequently, the respondent was not tried and convicted in totality in his absence and accordingly s. 45 did not apply to his case.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Edwards delivered on the 23rd day of November 2011

Introduction

2 The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 7th July, 2010. The warrant was endorsed for execution by the High Court in this jurisdiction on the 3rd September, 2010. The respondent was arrested at No. 23, Pine Grove, Charlestown, Co Mayo on the 11th January, 2011 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 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.

3 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 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. In addition, the Court is required to consider, in the particular circumstances of this case, the first of four points of objection to the respondent's surrender pleaded on behalf of the respondent, namely:-

4 2 "1. The surrender of the respondent in respect of the matters the subject of the European arrest warrant herein that issued in Poland on 7 ^th day of July 2010 is prohibited by the provisions of Part 3 of the European Arrest Warrant Act, 2003, as amended, and in particular his surrender is so prohibited by section 37 thereof on the grounds of the breach of his Constitutional and Convention Rights and in breach of s. 41 on the basis of double jeopardy and in breach of s. 45 on the basis that he was convicted in absentia within the context of that section."

5 The Court was informed that neither the double jeopardy argument, nor three further objections pleaded as grounds 2, 3, and 4 respectively in the points of objection document, were being proceeded with. Accordingly, only the specific objections in respect of ss. 37 and 45 are being maintained.

Uncontroversial Section 16 Issues

6 The Court has received an affidavit of Sergeant Richard Taheny sworn on the 25 ^th October, 2011, 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. The Court is satisfied following its consideration of this evidence and documentation that:-

7 (a) the person before it is the person in respect of whom the European arrest warrant was issued;

8 (b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;

9 (c) the European arrest warrant is in the correct form;

10 (d) the High Court is not required, under ss. 21A, 22, 23, or 24 (as inserted by ss. 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the Act of 2003.

11 The warrant is a sentence-type warrant and the respondent is wanted in the Republic of Poland to serve a composite sentence of 3 years and 4 months' imprisonment imposed upon him by the Regional Court in Lubin on the 26 ^th November, 2007 in respect of five offences particularised in the warrant. The issuing judicial authority has invoked the procedure under paragraph 2 of Article 2 of the Framework Decision (Council Framework Decision of 13 ^th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States...