Min for Justice v Walkowiak
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 06 May 2011 |
| Neutral Citation | [2011] IEHC 182 |
| Court | High Court |
| Date | 06 May 2011 |
[2011] IEHC 182
THE HIGH COURT
- AND -
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2
EUROPEAN ARREST WARRANT ACT 2003 S38(1)(b)
EUROPEAN ARREST WARRANT ACT 2003 S38
POLISH PENAL CODE ART 284.1
POLISH PENAL CODE ART 270.1
EUROPEAN ARREST WARRANT ACT 2003 S10D
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009
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 3
EUROPEAN ARREST WARRANT ACT 2003 S3(1)
EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 ART 2
EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 SCHED
POLISH PENAL CODE ART 286.1
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4
MIN FOR JUSTICE v SAS UNREP SUPREME 18.3.2010 2010/34/8657 2010 IESC 16
EUROPEAN ARREST WARRANT ACT 2003 S4
EUROPEAN ARREST WARRANT ACT 2003 S25
EUROPEAN ARREST WARRANT ACT 2003 S26
EUROPEAN ARREST WARRANT ACT 2003 S25(1)
EUROPEAN ARREST WARRANT ACT 2003 S26(1)
EUROPEAN ARREST WARRANT ACT 2003 S24
EUROPEAN ARREST WARRANT ACT 2003 S31
AG v DYER 2004 1 IR 40
EUROPEAN ARREST WARRANT ACT 2003 S10
CRIMINAL JUSTICE MISCELLANEOUS PROVISIONS ACT 2009 S6
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71
MIN FOR JUSTICE v TOBIN 2008 4 IR 42
MIN FOR JUSTICE v JANKOWSKI UNREP PEART 14.10.2010 2010/35/8728 2010 IEHC 401
MIN FOR JUSTICE v SLONSKI UNREP SUPREME 25.3.2010 2010 2 ILRM 387 2010/36/9019 2011 IESC 19
MIN FOR JUSTICE v SLICNYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73
MIN FOR JUSTICE v GORKA UNREP EDWARDS 29.3.2011 2011 IEHC 121
MIN FOR JUSTICE v CIECHANOWICZI UNREP EDWARDS 18.3.2011 2011 IEHC 106
EXTRADITION LAW
European arrest warrant
Surrender - Composite sentence for three offences - Severability of offences - Whether offences specified corresponded to offence under law of State - Whether minimum gravity requirement demonstrated - Whether respondent "fled" issuing jurisdiction - Meaning of "fled" - Minister for Justice, Equality and Law Reform v Tobin [2007] IEHC 15 & [2008] IESC 3, [2008] 4 IR 42 BS and Minister for Justice, Equality and Law Reform v Sliczynski [2008] IESC 73 (Unrep, SC, 19/12/2008) followed - Minister for Justice, Equality and Law Reform v Jankowski [2010] IEHC 401 (Unrep, Peart J, 14/10/2010) and Minister for Justice, Equality and Law Reform v Slonski [2010] IESC 19 (Unrep, SC, 25/2/2010) distinguished - Attorney General v Dyer [2004] IESC 1, [2004] 1 IR 40, Minister for Justice, Equality and Law Reform v Sas [2010] IESC 16 (Unrep, SC, 18/3/2010) and Minister for Justice, Equality and Law Reform v Gorka [2011] IEHC 121 (Unrep, Edwards J, 29/3/2011) considered - European Arrest Warrant Act 2003 [No 45), ss 10, 16, 38- Surrender ordered (2009/149Ext - Edwards J - 6/5/2011) [2011] IEHC 182
Minister for Justice, Equality and Law Reform v Walkowiak
JUDGMENT of Mr Justice Edwards delivered on the 6th day of May 2011
The respondent is the subject of a European Arrest Warrant issued by the Republic of Poland on the 4 th of November, 2008. The warrant was endorsed for execution by the High Court in this jurisdiction on the 17th of June, 2009. The respondent was arrested at No 46, Spring Meadows, Dungarvan, Co Waterford on the 20 th of July 2010 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 2003 Act") 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 2003 Act.
The warrant is a sentence type warrant and the respondent is wanted in the Republic of Poland to serve an outstanding aggregate or composite sentence of one year and eight months imprisonment imposed on him by the District Court in Swiebodzin in respect of three offences specified in the warrant. Both correspondence and minimum gravity requires to be demonstrated with respect to the first and third of the offences specified. With respect to the second offence specified this is an offence to which paragraph 2 of Article 2 of the Framework Decision applies and in that respect the issuing judicial authority has ticked the box relating to "fraud, including that affecting the financial interests of the Eurpoean Communities, within the meaning of the Convention of July 26 th, 1995 on the Protection of the European Communities' Financial Interests" within Part E. 1. of the European Arrest Warrant. In the circumstances only the minimum gravity requirements of s. 38(1)(b) requires to be demonstrated in relation to this offence.
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 2003 Act, 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 four specific objections to the respondent's surrender, namely:
(i) It is contended that the first of the three offences specified in the European Arrest Warrant (i.e an offence contrary to Article 284 § 1 of the Polish Penal Code) would not amount to a criminal offence in this jurisdiction. Accordingly, the respondent maintains that he should not be surrendered in relation to this offence because the European Arrest Warrant fails to comply with s.38 of the 2003 Act in as much as correspondence cannot be demonstrated.
(ii) It is contended that the third of the three offences specified in the European Arrest Warrant (i.e an offence contrary to Article 270 § 1 of the Polish Penal Code) would not amount to a criminal offence in this jurisdiction. Accordingly, the respondent maintains that he should not be surrendered in relation to this offence because the European Arrest Warrant fails to comply with s.38 of the 2003 Act in as much as correspondence cannot be demonstrated.
(iii) If the court is disposed to uphold either or both of the objections set out at (i) & (ii) above, the respondent contends that he cannot be surrendered in respect of any other offence or offences to which the European Arrest Warrant relates because a composite sentence was imposed in respect of all three offences covered by the warrant. The respondent says that in the circumstances severance is not possible and the Court cannot therefore surrender him in relation to any of the offences covered by the warrant.
(iv) The respondent further contends that his surrender is prohibited because the requirements of the 2003 Act, and in particular the requirements of s. 10(d) of that Act (as it was prior to the amendments effected by the Criminal Justice (Miscellaneous Provisions) Act, 2009), have not been satisfied.
The Court has received an affidavit of Detective Garda Martin Keohane sworn on the 22nd of February 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:
(a) the person before it is the person in respect of whom the European arrest warrant was issued;
(b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the 2003 Act;
(c) the European Arrest Warrant in this case is in the correct form;
(d) the respondent was not tried in absentia and so no undertaking for a retrial is required;
(e) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the 2003 Act;
(f) the surrender of the respondent is not prohibited by Part 3 of the 2003 Act, or by the Framework Decision (including the recitals thereto).
In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) (No 3) Order 2004, S.I. 206/2004 (hereinafter referred to as "the 2004 Designation Order"), and duly notes that by a combination of s 3(1) of the 2003 Act, and article 2 of, and the Schedule to, the 2004 Designation Order, "Poland" (or more correctly the Republic of Poland) is designated for the purposes of the 2003 Act as being a state that has under its national law given effect to the Framework Decision.
As previously indicated, one of the three offences specified in the European Arrest Warrant is a ticked...
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