Min for Justice v Zych
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 13 April 2011 |
| Neutral Citation | [2011] IEHC 161 |
| Court | High Court |
| Date | 13 April 2011 |
[2011] IEHC 161
THE HIGH COURT
- AND -
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(F)
EUROPEAN ARREST WARRANT ACT 2003 S10(D)cant find S72
EUROPEAN ARREST WARRANT ACT 2003 S38(A)(II)
PENAL CODE ART 278.1
EUROPEAN ARREST WARRANT ACT 2003 S71
EUROPEAN ARREST WARRANT ACT 2003 S37
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
EUROPEAN ARREST WARRANT ACT 2003 S20(2)
MIN FOR JUSTICE & ORS v SAWCZUK UNREP EDWARDS 4.2.2011 2011 IEHC 41
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 (DESIGNATED MEMBER STATES) NO 3 ORDER 2004 SI 206/2004 SCHED
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 UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8(1)(E)
GLAVERBEL v OHIM C-445/2002 P 2004 ECR I-06267
MIN FOR JUSTICE v CIECHANOWICZ UNREP EDWARDS 18.3.2011 2011 IEHC 106
EUROPEAN ARREST WARRANT ACT 2003 S11(1)
NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3(1)
MIN FOR JUSTICE v DOLNY UNREP SUPREME 18.6.2009 2009/39/9618 2009 IESC 48
CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S4
MIN FOR JUSTICE & ORS v SAS UNREP SUPREME 18.3.2010 2010/34/8657 2010 IESC 16
EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(II)
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 SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
MIN FOR JUSTICE & ORS v STAPLETON 2008 1 IR 669
MIN FOR JUSTICE & ORS v ADAM UNREP EDWARDS 3.3.2011 2011 IEHC 68
MIN FOR JUSTICE & ORS v SAWCZUK UNREP EDWARDS 4.2.2011 2011 IEHC 41
MIN FOR JUSTICE & ORS v RETTINGER UNREP SUPREME 23.7.2010 2010/36/8976 2010 IESC 45
AGBONLAHORE v MINISTER FOR JUSTICE & ORS 2007 4 IR 309
MIN FOR JUSTICE v GHEORGHE UNREP SUPREME 18.11.2009 2009/39/9656 2009 IESC 76
MIN FOR JUSTICE v GORMAN UNREP PEART 22.4.2010 2010/34/8621 2010 IEHC 210
MIN FOR JUSTICE v BEDNARCZYK UNREP EDWARDS 5.4.2011 2011 IEHC 136
MIN FOR JUSTICE v FLJ UNREP EDWARDS 8.4.2011 EXTEMPORE
JUDGMENT of Mr Justice Edwards delivered on the 13th day of April 2011
1. The respondent is the subject of two European Arrest Warrants issued by the Republic of Poland on the 4 th of January, 2007 and the 18 th of September 2008, respectively. Both of these warrants were received in this jurisdiction on the 8 th of March 2010, and they were each endorsed for execution by the High Court on the 10 th of March, 2010. The proceedings bearing record no 2010/93/EXT relate to the warrant dated the 18 th of September, 2008, and the proceedings bearing record no 2010/94/EXT relate to the warrant dated the 4 th of January, 2007. The respondent was arrested by Sergeant Brendan Keane of An Garda Siochàna at 57 Glenmore Park, Muirhevnamore, Dundalk, Co Louth on the 16 th of June, 2010 on foot of both warrants but he does not consent in either case to his surrender to the Republic of Poland. Accordingly, this Court is now being asked by the applicant to make Orders 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, in each case, it is appropriate to do so having regard to the terms of s.16 of the 2003 Act.
2. In that regard the respondent has put the applicant on full proof as regards the requirements of s. 16 aforesaid in each case. In addition the Court is required to consider in the particular circumstances of each case a number of specific objections to the respondent's surrender.
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 11 (1A)(f) of the 2003 Act in as much as in section E2 thereof it describes the offence as having occurred "between January 1999 and September 29th 2003" which is too vague;
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 11(1A)(g)(iii) of the 2003 Act in as much as no detail, alternatively insufficient detail, has been supplied in respect of any sentences to which the warrant relates, and in particular whether they were suspended and, if so, the conditions upon which, and the duration for which. they were suspended;
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 38(a)(ii) of the 2003 Act in respect of each discrete offence;
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 11(1A)(g)(iii) of the 2003 Act in as much as no detail, alternatively insufficient detail, has been supplied in respect of any sentences to which the warrant relates;
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 38(a) of the 2003 Act and is defective in that there is no evidence of correspondence with offences in Irish law (with the exception of the offence listed at Section E2 I, which appears to correspond with attempted theft). More specifically, it is not possible to determine from the description set out at Section E2, II - VI thereof with which offences under Irish law the said offences are purported to correspond.
· The European arrest warrant herein is defective in that there is no indication at Section C1 as to maximum length of custodial sentence imposable;
· The European Arrest Warrant herein is defective in that matters described at Section E1 as "Offences specified in Article 278 S1 of the Penal Code" do not constitute an offences (or offences) known to Irish law.
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 11 (1A)(f) of the 2003 Act in as much as in section E2 II thereof describes the offence as having occurred "in the year 2000" which is too vague;
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 11 (1A)(f) of the 2003 Act in as much as in section E2 IV thereof describes the offence as having occurred "in August 2001" which is too imprecise;
· The European Arrest Warrant in this case fails to satisfy the requirements of s. 11 (1)(f) of the 2003 Act in as much as in section E2 V thereof describes the offence as having occurred "in 2001" which is too vague;
· The requirements s. 10 (d) of the 2003 Act (as it was prior to the amendments effected by the Criminal Justice (Miscellaneous Provisions) Act, 2009) have not been satisfied;
· The respondent's surrender ought to be refused on the grounds that the European Arrest Warrant fails to explain prosecutorial delays; delays on the part of the issuing judicial authority and delays on the part of the applicant;
· The surrender of the respondent is prohibited by s. 37 of the 2003 Act on the grounds that his surrender would contravene the respondent's rights under the Constitution;
· The surrender of the respondent is prohibited by s. 37 of the 2003 Act on the grounds that it would be incompatible with the State's obligations to the respondent under the European Convention on Human Rights, in particular his right not to be subjected to inhuman and degrading treatment under Article 3; and his to respect for his private and family life under Article 8.
3. Separate sets of affidavits have been filed by or on behalf of the respondent in each case. In each instance the Court has before it an initial affidavit of the respondent sworn on the 21 st of July, 2010; a supplemental affidavit of the respondent also sworn on the 21 st of July, 2010; an affidavit of verification sworn by the respondent on the 18 th of November, 2010; a 2 nd supplemental affidavit of the respondent sworn on the 10 th of December, 2010; a 3 rd supplemental affidavit of the respondent sworn on the 8 th of February, 2011; an affidavit of Sean T O'Reilly (the respondent's solicitor) sworn on the 23 rd of November, 2010 together with extensive exhibits thereto, and, finally, an affidavit of Margaret Nurkiewicz (the respondent's sister) sworn on the 25 th of February 2011. I have carefully considered all of these documents and will refer to them to the extent necessary in the course of this judgment.
4. The applicant in his capacity as the Irish Central Authority, and pursuant to s. 20(2) of the 2003 Act, sought additional information from the issuing judicial authority on various issues arising out of an initial consideration by the applicant of the European Arrest Warrants in this case. By a letter dated the 18 th of November, 2010 the issuing...
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