Min for Justice v Sliwa
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 06 July 2011 |
| Neutral Citation | [2011] IEHC 271 |
| Court | High Court |
| Date | 06 July 2011 |
[2011] IEHC 271
THE HIGH COURT
- AND -
JUDGMENT of Mr Justice Edwards delivered on the 6th day of July 2011
The respondent is the subject of a European Arrest Warrant issued by the Republic of Poland on the 9 th of January 2007 and his surrender is sought so that he may be prosecuted in Poland for the single offence particularised in the warrant. That warrant was subsequently endorsed for execution by the High Court on the 30 th of August 2010 in this jurisdiction. The respondent was arrested on the 14 th of December 2010 by Garda John Butler at 43 Ballmany Mews, Newbridge, Co. Kildare, 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.
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 so far as specific points of objection are concerned, the Court is required to consider the following objections:
(i) the proposed surrender of the respondent will expose him to double jeopardy in violation of his constitutional right to fair procedures under Irish law, contrary to section 37(1)(b) of the Act of 2003;
(ii) the proposed surrender of the respondent would be incompatible with the State's obligations under the European Convention on Human Rights, in particular Article 4 of Protocol 7.
The Court has received an affidavit of Garda John Butler sworn on the 14 th of May 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 notes that it 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 relevant European Arrest Warrant was issued;
(b) the European Arrest Warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;
(c) as the person named in the European Arrest Warrant is wanted for prosecution no issue can arise as to trial in absentia such as to require an undertaking under s. 45 of the Act of 2003;
(d) the European Arrest Warrant is in the correct form;
(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) of the Act of 2003 to refuse to surrender the respondent.
As previously stated, the European Arrest Warrant dated the 9 th of January 2007 is a prosecution type warrant and the respondent is wanted in the Republic of Poland for trial in respect of a single charge. At Part E. I of that warrant, the box relating to "organised or armed robbery" is ticked. Accordingly, the issuing state has sought to invoke paragraph 2 of article 2 of the Framework Decision. As the offence is punishable by imprisonment for a maximum period of not less than 3 years, s. 38(1) (b) of the Act of 2003 applies, and correspondence does not require to be demonstrated and legal requirements with respect to minimum gravity are clearly met.
The respondent has filed an affidavit sworn on the 28 th of February 2011 setting out the evidential basis for his objections. The thrust of his evidence, which is not disputed by the applicant, is that he was tried before the District Court of Tarnów for the offence the subject of the European arrest Warrant dated the 9 th of February 2007, and that following a three day hearing he was, on the 20 th of March 2006, duly acquitted. However, the prosecution, as they were entitled to do under the Polish law, successfully appealed this acquittal to the Regional Court in Tarnów. Accordingly, the acquittal was set aside and a re-trial was directed. In support of his evidence that this is what occurred the respondent has exhibited a letter dated the 9 th of February 2011 from the Polish lawyer who had defended him in those proceedings before the District Court of Tarnów. This letter does confirm the basic facts as set out by the respondent in his affidavit. However it also states that the respondent's acquittal before the District Court of Tarnów "was not a 'final judgment'".
The respondent's objections are based upon s. 37 of the Act of 2003. He relies in particular on s.37 (1) thereof which, to the extent that it is relevant, provides:
2 "37.-(1) A person shall not be surrendered under this Act if-
(a) his or her surrender would be incompatible with the State's obligations under-
(i) the Convention, or
(ii) the Protocols to the Convention,
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies),
(c) [not relevant]."
It is further provided in subsection (2) of s. 37 that:
3 "(2) In this section-
'Convention' means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950, as amended by Protocol No. 11 done at Strasbourg on the 11th day of May, 1994; and
'Protocols to the Convention' means the following protocols to the Convention, construed in accordance with Articles 16 to 18 of the Convention:
(a) [not relevant]
(b) [not relevant]
(c) [not relevant];
(d) Protocol No. 7 to the Convention done at Strasbourg on the 22nd day of November, 1984."
The respondent contends that his surrender to Poland will expose him to double jeopardy, because although he was tried and acquitted of the offence the subject matter of the European Arrest Warrant his acquittal was subsequently reversed on appeal. The respondent argues that notwithstanding that the initial judgment of acquittal was not a final judgment, any contemplated re-trial would nonetheless expose him to double jeopardy. He submits that in the circumstances he should not be surrendered to Poland.
In so far as the s.37 objection is based upon a suggestion that the respondent's surrender would constitute a contravention of a provision of the Constitution, the respondent has not pleaded, and counsel for the respondent has been unable to identify, any provision of the Constitution that expressly provides him with protection against double jeopardy. While adamant that his client can claim such protection, counsel for the respondent concedes that he cannot put it further than to suggest that such protection might exist as an aspect of the constitutional right to trial in due course of law, i.e. the entitlement to fair procedures and due process, guaranteed by Article 38(1) of the Constitution; alternatively as an aspect of the constitutional right to trial by jury guaranteed by Article 38(5) of the Constitution, or simply as an unenumerated personal right under Article 40 of the Constitution.
There is no doubt whatever in the Court's mind that there is a constitutional protection against double jeopardy, but it is not an absolute protection. For example, in Ireland there is a long standing entitlement on the part of the prosecution in an indictable matter to appeal an acquittal by direction of the trial judge without prejudice to the verdict in the particular case - s.34 of the Criminal Procedure Act, 1967 (as amended by s. 21 of the Criminal Justice Act 2006). More recently, since the enactment of s.2 of the Criminal Justice Act 1993 (as now amended by s.23 of the Criminal Justice Act 2006) the DPP is allowed to apply to the Court of Criminal Appeal to have a sentence that he considers unduly lenient reviewed. More recently still, s.9(3) of the Criminal Procedure Act 2010 allows the DPP to apply for a re-trial order in a case where a person has been acquitted in circumstances where the DPP is of the view that (a) there is compelling evidence against that person, and (b) it is in the public interest to do so. English statute law contains a similar provision.
Counsel for the respondent, Mr John Fitzgerald B.L., concedes that Irish law allows for prosecution appeals in such circumstances but makes two points in that regard. While accepting that s.34 of the Act of 1967 (as amended), s.2 of the Act of 1993 (as amended) and s.9 (3) of the Act of 2010 all enjoy the presumption of constitutionality, he says that such a presumption might be perhaps at some point be rebutted and that the constitutionality of those provisions has never in fact been declared following a challenge. Secondly, even if double jeopardy is constitutionally permissible to the extent provided for in Irish law it is only permissible to that limited extent. Any rule of procedure, such...
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