Min for Justice v Sawczuk

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 04 February 2011
• Neutral Citation: [2011] IEHC 41
• Court: High Court
• Date: 04 February 2011

[2011] IEHC 41

THE HIGH COURT

Record No 205 EXT/2008

Record No 206 EXT/2008

Record No 191 EXT/2010

Min for Justice v Sawczuk

APPROVED

Mr Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

-V-

MARCIN SAWCZUK

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S13

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 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN ARREST WARRANT ACT 2003 S20(2)

RSC O. 98 r7

EUROPEAN ARREST WARRANT ACT 2003 S20(3)

MIN FOR JUSTICE v WARD UNREP PEART 4.3.2008 2008/42/9122 2008 IEHC 53

MIN FOR JUSTICE v WLODARCZYK UNREP EDWARDS 25.1.2011 (EX TEMPORE)

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

EASTERN HEALTH BOARD v K (M) 1999 2 IR 99 1999 2 ILRM 321 2000/6/2188

CONSTITUTION OF THE REPUBLIC OF POLAND ART 91.1

EXECUTIVE PENAL CODE OF THE REPUBLIC OF POLAND ART 4

EXECUTIVE PENAL CODE OF THE REPUBLIC OF POLAND ART 102

EXECUTIVE PENAL CODE OF THE REPUBLIC OF POLAND ART 103

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

MIN FOR JUSTICE v RETTINGER 2011 1 ILRM 157 2010 IESC 45

EUROPEAN ARREST WARRANT ACT 2003 S16(12)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S12

MIN FOR JUSTICE v RETTINGER UNREP PEART 7.5.2010 2010 IEHC 206

Abstract:

Criminal law - Extradition - Practice and procedure - European arrest warrant - Prison conditions in Poland - Whether appropriate to order surrender of respondent - Whether surrender of respondent prohibited by legislative or Framework provisions - Whether supporting documents contained hearsay evidence - European Arrest Warrant Act, 2003 - European Convention on Human Rights.

Facts The proceedings concerned an application on behalf of the Polish authorities for the extradition of the respondent to Poland pursuant to the relevant provisions of the European Arrest Warrant Act, 2003. On behalf of the respondent issue was taken with supporting documentation that the applicant was relying upon in order to obtain the order of surrender. The respondent contended that the applicant had failed to prove the provenance of the documents in question and the court could not rely upon these documents without additional proof. In additional it was contended that the documents contained hearsay evidence. Secondly the respondent maintained that prison conditions in Poland were inhumane and that if an order of surrender were to be made the respondent's rights under the European Convention on Human Rights would be breached.

Held by Edwards J in granting the order of surrender. The fact that information submitted might contain hearsay evidence did not render those documents inadmissible. The Court could receive the documents in question and have due regard to their contents without them being proved by direct evidence. The court noted that the claims made by the respondent regarding his prison experience related to the past and had produced no evidence that those conditions prevailed in the present. No evidence had been submitted from Prisoner Rights Groups in Poland nor from groups such as Amnesty International. Up to date information had been submitted to dispel any concerns raised by the respondent regarding his rights under the European Convention on Human Rights.

Reporter: R.F.

1 JUDGMENT of Mr Justice John Edwards delivered on the 4th day of February 2011.

Introduction

2 The Court is concerned with an application on behalf of the applicant for orders pursuant to s. 16 of the European Arrest Warrant Act 2003 (hereinafter "the 2003 Act"), as amended, directing that the respondent be surrendered to the Polish state on foot of three separate European Arrest Warrants which have been endorsed by the Irish High Court for execution and on foot of which the respondent has been arrested. The three European Arrest Warrants in question have been produced to the court. The court is satisfied, on foot of the evidence that it has heard, that in each case the respondent is the person in respect of whom the European Arrest Warrant issued. The Court is further satisfied that in each case the European Arrest Warrant has been endorsed in accordance with section 13 of the 2003 Act, and further that in each case the High Court is not required under section 21A, 22, 23 or 24 of the 2003 Act (as inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act, 2005) to refuse to surrender the respondent. No issues arise, and the warrants are prima facie in order, with respect to correspondence, minimum gravity and form. In the circumstances the court is solely concerned with whether the surrender of the respondent is prohibited by Part 3 of the 2003 Act, as amended, or by the Framework Decision (including the recitals therebe). In that regard only one point is raised by way of objection under this heading in each case, and it is the same point in each instance. The point is this. The respondent contends that his surrender is prohibited by section 37 of the 2003 Act on the grounds that he faces a real risk that his rights under the European Convention on Human Rights and Fundamental Freedoms, and in particular his Article 3 rights, will be breached by reason of prison conditions in Poland.

The respondent's evidence

3 In support of his objection the respondent has filed an affidavit sworn by him on the 10th day of November 2010. In this affidavit he makes the following averments:

"I have experienced prison life in Poland, particularly in Klodzko, Dzierzoniok and Pilawa. These are prisons in my local area in Poland. I spent about for and half years in Klodzko, about three days in Dzierzoniok and two years in Pilawa. I found conditions there to be very bad indeed. The prisons are unhealthy and overcrowded. I would say they are inhumane. In Klodzko there were sometimes up to twelve people in one cell and I believe this is much more than official limits. I regularly had eight or nine people in my cell which was a very small room indeed. We were only permitted a shower once a week and we had no privacy. We got half a bread and half a cheese for the day which was insufficient for my needs. We had little or no recreation. I believe prison conditions in Poland have been internationally criticised and condemned. I say rightly so. I have personal experience of the Polish prison system and I do not wish to be subjected to that regime again. I believe I will if I am surrendered there."

4 No further evidence was adduced by or on behalf of the respondent.

Admissibility of further information relied upon by the applicant

5 The applicant seeks to rely upon the information contained in two documents ostensibly supplied to it by the issuing state, and one document ostensibly supplied to it by the issuing judicial authority, by way of further information. The respondent objects to the Court having any regard to these documents on a number of grounds. His objections may be summarised as follows:

6 · The applicant has failed to prove the provenance of these documents and to show how he came into possession of them;

7 · Before the applicant can seek to put these documents before the Court as additional information supplied under s.20(2) the applicant must prove the invocation of that statutory provision and the making of a request to either, or both, the issuing state or the issuing judicial authority for additional information. The applicant has failed to do so.

8 · Even if the information contained in these documents was supplied in response to a request or requests made under s. 20(2) the Court should not receive it, having regard to the provisions of Order 98 Rule 7 of the Rules of the Superior Courts, and/or of s 20(3) of the 2003 Act, as it is neither evidence on affidavit nor evidence in any of the other receivable forms prescribed in s.20(3).

9 · The content of each of these documents is hearsay, and in each case the respondent has no means of cross-examining the author for the purpose of testing the truth of his assertions.

10 It is true that no formal evidence has been adduced, either viva voce or on affidavit, concerning the provenance of these documents or to show how the applicant came into possession of them.

11 The Court should deal firstly with issue of provenance. Two of the documents clearly purport on the face of them to emanate from the issuing state and in particular the Polish Ministry of Justice, while the third document clearly purports on its face to emanate from the issuing judicial authority. I do not consider that any further proof of provenance is required in the absence of concrete evidence suggesting the contrary.

12 Next the Court must deal with whether it is necessary for the applicant to prove how these documents came into his hands. While there is no sworn evidence before the Court of the formal invocation by the applicant of the provisions of section 20(2) of the 2003 Act (as amended), or of any communication by the applicant of a request to either the issuing state, or the issuing judicial authority, for additional information, it would in my view, and adopting a characterisation previously employed by Peart J. in Minister for Justice, Equality and Law Reform v Ward. [2008]IEHC 53 for the purposes...