Minister for Justice and Equality v Swacha

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 20 December 2016
• Neutral Citation: [2016] IEHC 796
• Date: 20 December 2016
• Court: High Court
• Docket Number: Record No. 2015/251 EXT 2015/252 EXT 2016/71 EXT

[2016] IEHC 796

THE HIGH COURT

Donnelly J.

Record No. 2015/251 EXT

2015/252 EXT

2016/71 EXT

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

JANUSZ EUGENIUSZ SWACHA

RESPONDENT

Extradition – European Arrest Warrant Act, 2003 – Execution of European Arrest Warrants ("EAW") – Validity of EAW – 2002 Framework Decision – Art. 8 of the European Convention on Human Rights ("ECHR")

Facts: The surrender of the respondent was sought by the requesting state for prosecuting the respondent in relation to certain offences and service of remainder of the sentence in respect to the other offences on the foot of execution of three separate EAWs. The respondent objected to his surrender on the basis of the validity of those EAWs as they were the corrected versions of the original EAWs. The respondent argued that his surrender was prohibited under art. 8 of the ECHR.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that the respondent's presence was sought for the offences of possession and the sale of a weapon, whose description should match the description of firearm in Ireland. The Court found that the respondent's offence of possession of the alleged weapon corresponded to the offence contrary to s. 2 of the Firearms Act, 1925 in Ireland and thus, the requirement of correspondence of the offence had been met. The Court observed that though the corrected versions of the EAWs did not bear the original signature but only the original date of issue, the explanation given by the requesting state in that regard would be accepted by the Court keeping in lieu the principle of comity recognised by the Member States under 2002 Framework Decision. The Court observed that the objection in relation to infringement of the applicant's right under art. 8 of the ECHR could not be entertained, keeping in lieu the public interest involved in the extradition of individual involved in criminal activities.

JUDGMENT of Ms. Justice Donnelly delivered the 20th day of December, 2016.

1 The surrender of the respondent is sought by the Republic of Poland pursuant to three separate European Arrest Warrants ('EAW'). The first EAW is dated 23rd March, 2012, and seeks the respondent's surrender in order to serve the outstanding period of a 1 year and 6 months sentence of imprisonment imposed upon him in respect of four offences in the nature of fraud or forgery. The second EAW was issued on 3rd April, 2012, and his surrender is sought for the purpose of prosecuting him in respect of two offences of counterfeiting currency. The third EAW was issued on 21st April, 2016, and his surrender is sought to serve a sentence of imprisonment of 1 year and 4 months imposed for the possession and sale of a gas weapon.

2 The respondent has raised four main points of objection:

1) In respect of the first and second EAWs, the EAWs are invalid because what the Court has before it is a 'corrected version' of the European arrest warrants.

2) There is no correspondence of offences in this jurisdiction with respect to the offences set out in the third European arrest warrant.

3) The respondent's sentence on the third EAW has been aggregated on appeal with the sentence of 1 year and 6 months on the first EAW and he is no longer required to serve it.

4) In relation to each EAW, the respondent's surrender is prohibited under Article 8 of the European Convention on Human Rights ('ECHR').

Uncontroversial matters

A Member State that has given effect to the 2002 Framework Decision

3 The surrender provisions of the Act of 2003 apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002, (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States ('the 2002 Framework Decision'). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) Order 2004 ( S.I. No. 103 of 2004), the Minister for Foreign Affairs has designated Poland as a Member State for the purposes of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003').

Identity

4 I am satisfied on the basis of the affidavit of Garda Halpin and Sergeant Kirwan, members of An Garda Síochána, the affidavit of the respondent, and the details set out in the EAW, that the respondent, Janusz Eugeniusz Swacha, who appears before me, is the person in respect of whom each of the EAWs have issued.

Endorsement

5 I am satisfied that each of the three EAWs have been endorsed in accordance with s. 13 of the Act of 2003 for execution.

Sections 21A, 22, 23 and 24 of the Act of 2003, as amended

6 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse his surrender under the above provisions of the Act of 2003, as amended, in respect of each of the European arrest warrants.

Part 3 of the Act of 2003, as amended

7 Subject to further consideration of s. 37, s. 38 and s. 45 (where appropriate) of the Act of 2003, as amended, and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

Controversial matters

Section 38 of the Act of 2003

8 As will be referred to in more detail later in this judgment, the Polish authorities had originally sent to this jurisdiction versions of the first EAW and the second EAW in which point E.1 was completed (i.e. the issuing judicial authority was indicating it was relying on these as ticked box offences under Article 2 para. 2 of the 2002 Framework Decision). Unfortunately, these EAWs had also completed point E.2 which should only be completed when not relying upon point E.1.

9 In respect of the first EAW, I am satisfied that the issuing judicial authority has now clarified that these are offences to which Article 2 para. 2 of the 2002 Framework Decision applies. Therefore, it is unnecessary to establish double criminality or correspondence of offences. They are offences of the requisite minimum gravity. The designation of these offences as list offences is not manifestly incorrect and the respondent's surrender is not prohibited under s. 38 of the Act of 2003.

10 In respect of the second EAW, I am satisfied that the issuing judicial authority has now clarified that these are offences to which Article 2 para. 2 of the 2002 Framework Decision applies. Therefore, it is unnecessary to establish double criminality or correspondence of offences. They are offences of the requisite minimum gravity. The listing of the offences is not manifestly incorrect and his surrender is not prohibited under s. 38 of the Act of 2003.

The third EAW

11 The third EAW seeks his surrender in respect of two offences. The detail set out at point E is that 'On an unidentified date between 1999 and 2000 he sold AC [name redacted] Bus 90 GS gas weapon No K 15037-6 in spite of the fact that he did not have a required licence.' The box at E.1 referring to 'illicit trafficking in weapons, ammunitions and explosives' is ticked. Under E.2 which is a full description of the offence not covered by E.1, it is stated that he was 'in possession' of the gas weapon without the required license. The minimum gravity term has been met in respect of the ticked box offence and the Court accepts that there is no manifest defect in the ticking of the box regarding illicit trafficking.

12 Under the relevant part of s. 38(1)(a) of the Act of 2003 in so far as offences which do not come within Article 2 para. 2 of the 2002 Framework Decision are concerned, a person shall not be surrendered to an issuing state in respect of an offence unless (a) the offence corresponds to an offence under the law of the State, and (b) that a term of imprisonment of not less than four months has been imposed on the respondent in respect of the offence in the Republic of Poland and that the respondent is required under the law of the Republic of Poland to serve all or part of that term of imprisonment. In this case, it is clear that the minimum gravity terms have been met in respect of this offence. The respondent's main contention was that there was no correspondence of this offence, but it was bound up with a submission concerning s. 11 of the Act of 2003 and it is appropriate to deal with that submission at this point.

Section 11 of the Act of 2003

13 The respondent is being sought for offences of possession and sale of a weapon over a lengthy period between 1st April, 1993, and 1999-2000. A sub-issue arose about the level of detail provided in respect of those offences, namely that insufficient detail was given to comply with the requirements of s. 11 of the Act of 2003 with regard to place of commission and date of commission and detail of the offences especially as regards possession and sale.

14 In light of those issues, the Court sought further information in a detailed letter sent to the issuing judicial authority under the provisions of s. 20 of the Act of 2003. The issuing judicial authority responded with information which established that, while the indictment did not contain information regarding the place of committal, it was undoubtedly committed in Poland.

15 The additional information states that the proceedings in the case started in January 2003 and shows that when interrogated as suspects, this respondent and AC were not able to state explicitly when the respondent had the gun/pistol and when he sold the gun/pistol to AC. There was no contract of sale and no date could be ascertained. In those circumstances, the Court is satisfied that sufficient information has been placed before it to explain the long time frame of the offence and the circumstances of possession and sale. The Court therefore rejects the...