Minister for Justice and Equality v Skwierczynski

JurisdictionIreland
JudgeMs. Justice Donnelly
Judgment Date24 October 2016
Neutral Citation[2016] IEHC 802
Docket NumberRecord No. 2015/62 EXT
CourtHigh Court
Date24 October 2016
BETWEEN
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
TOMASZ KRZYSZTOF SKWIERCZYNSKI
RESPONDENT

[2016] IEHC 802

Donnelly J.

Record No. 2015/62 EXT

THE HIGH COURT

International law – Extradition – European Arrest Warrant Act, 2003 – Execution of European Arrest Warrant (‘EAW’) – Art. 8 of European Convention on Human Rights (‘ECHR’) – Council Framework Decision 2002/584/JHA – Trial in absentia

Facts: The applicant sought an order for the surrender of the respondent to the requesting state on foot of execution of European arrest warrant. The applicant contended that the respondent was wanted in the requesting state for the purpose of serving the remainder of custodial sentence imposed upon him for committing the offence of taking hammer drill with the intention of misappropriating it. The respondent objected to his surrender on various grounds such as lack of corresponding offence in Ireland, validity of EAW, disproportionate interference of his rights under art. 8 of ECHR and delay.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that offence of dishonestly taking hammer drill corresponded to the offence of attempted theft contrary to common law in Ireland. The Court noted that the identity of the issuing judicial authority had been established as required under s. 11(1A) (b) of the 2003 Act. The Court found that there was no disproportionate interference with respondent's rights under art. 8 of ECHR as the respondent was a single man with no children. The Court held that despite the fact that the respondent had adjusted into Ireland and earned his livelihood by doing a job; yet the public interest would favour his surrender as he was responsible for the delay caused by the requesting state in seeking his surrender. The Court took the conduct of the respondent into consideration as he left the issuing state in order to evade the sentence of imprisonment imposed upon him. The Court observed that the fact that the respondent was convicted for less grave offence would not be a ground for prohibiting his surrender as minimum sentence of four months had been set up by the 2002 Framework Decision for the purpose of requesting surrender. The Court held that there was a full appeal of respondent's conviction in his absence; however, it would not prohibit his surrender as his rights of defence had been respected in the issuing state.

JUDGMENT of Ms. Justice Donnelly delivered the 24th day of October, 2016.
1

On a European arrest warrant (‘EAW’) issued by the Regional Court in Gdansk, Poland on 3rd March, 2015, the surrender of the above named respondent is sought for the purpose of serving five months and twenty eight days of a sentence remaining from a six month custodial sentence imposed upon him by the District Court of Gdansk-South on 6th August, 2007. This sentence was imposed upon him for the offence of attempting to take, with the intention of misappropriation, a hammer drill from an open Mercedes car on 22nd February, 2007.

2

The respondent has raised four separate issues as points of objection to his surrender:

(i) An issue of lack of correspondence with an offence in this jurisdiction;

(ii) An issue regarding the signature by a representative of the issuing judicial authority;

(iii) A point under s. 45 of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’), dealing with trial in absentia.

(iv) An issue under Article 8 of the European Convention on Human Rights (‘ECHR’).

Section 16 of the Act of 2003
Uncontentious issues
3

The Court is satisfied, on the basis of the details in the EAW, the additional information and the affidavit of Sergeant Gerard Newton, that the person before the Court is the person in respect of whom the EAW has issued. The Court is satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction. The Court is satisfied that is it not required to refuse the surrender of this respondent under s. 21A, 22, 23 or 24 of the Act of 2003. The Court is also satisfied that, subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003, the surrender of the respondent is not prohibited by Part 3 of the said Act.

Contentious issues
Section 38 of the Act of 2003
4

The description of the circumstances of the offence as alleged in the EAW is set out at point E.2. as follows: ‘On 22 February 2007, in Gdansk, he attempted to take, with the intention of misappropriation, a Wacker Warke EH 23 220 hammer drill worth PLN 10,000 from an open Mercedes 210 registration GAH 6881, though he did not to (sic) carry through his intent because he was stopped by employees of PBUH Want spolka cywilna in Tezew, and in his attempt he acted to the detriment of the said business.’

5

Counsel for the minister submitted that the corresponding offence is attempted theft contrary to common law. Counsel also submitted that the requirements of minimum gravity have been met in that the maximum length of custodial sentence outlined in the EAW is stated to be six months, with five months and twenty eight days remaining to be served by the respondent.

6

The respondent submitted that no correspondence had been made out with the offence of attempted theft. It was submitted that the use of the word ‘attempt’ was insufficient to show correspondence with the jurisprudence on what amounted to a ‘criminal attempt’ in this jurisdiction. It was also submitted that there was an absence of correspondence as it had never been shown that this was an attempted taking of an item without the consent of the owner as no owner had been identified.

7

Section 5 of the Act of 2003 states:

‘For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the act or omission that constitutes the offence so specified would, if committed in the State on the state on which the European arrest warrant is issued, constitute an offence under the law of the State.’

8

The court is bound to apply the provisions of s. 5 of the Act of 2003 in accordance with the well established case law in this area including Attorney General v. Dyer [2004] 1 I.R. 40, Minister for Justice v. Sas [2010] IESC 16 and Minister for Justice v. Dolny [2009] IESC 48. As the Supreme Court stated in Dolny, in assessing whether the facts set out in the EAW would amount to an offence in this jurisdiction, the court is to have regard to the totality of the information before it.

9

In Minister v. Sas, the Supreme Court reiterated the well established jurisprudence that words in an extradition warrant must be given their plain and ordinary meaning, save where otherwise indicated. Words such as ‘stole’, ‘rob’, ‘murder’, ‘rape’, etc. must be given their plain and ordinary meaning and are not required to be explained in accordance with the law of a particular Member State. In the view of the Court, the word ‘attempt’ must also be given a plain and ordinary meaning.

10

As the above description of the offence sets out, there was an attempt to take a hammer drill from an open Mercedes car. The attempt was thwarted by other people stopping it. The essence of what this respondent was engaged in has been clearly demonstrated; he was dishonestly (with the intention of misappropriation) trying to take the hammer drill from the car and was stopped because other people intervened. To say in this jurisdiction that a person was attempting to dishonestly appropriate another person's drill from an open car but was stopped due to the intervention of others, would clearly amount to an attempted theft.

11

Under the heading of lack of correspondence, the main submission of the respondent was that the owner has not been identified. Section 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (‘the Act of 2001’) requires that the property be dishonestly appropriated from an owner. Reference was made to the case of Minister for Justice and Law Reform v. Nowakowski (Unreported, ex tempore, Supreme Court, Murray J., 12th October, 2011) in which the relevant EAW had referred to the phrase to the detriment of ‘a named person’, owner.

12

The decision in Nowakowski establishes that the phrase ‘“taking with a view to appropriate” is sufficient to meet the requirement that ‘he usurped or adversely interfered with the proprietary rights of the owner [and] that this occurred without the consent of the owner’. The use of the phrase “to the detriment” in all offences is sufficient to indicate an intention at the time of the taking to deprive the owner of the goods in question. In this composite way, all the necessary ingredients are contained in the description of these offences so that correspondence with an [offence] under s. 4 is established.’The Supreme Court also stated that the phrase ‘“took in order to appropriate”[…] ‘may be interpreted as appropriating for one's own use and denotes an element of dishonesty.’ By contrast, the Supreme Court held that to allege merely that a person has taken someone else's property, is, in law, a neutral statement and is not sufficient to constitute the offence of theft. In that case, the addition of the phrase ‘to the detriment of the owner’ did not cure the lacuna in proofs.

13

In the present case, the reference to ‘with the intention to misappropriate’ is sufficient to show that there was a level of dishonesty involved in the conduct of this particular respondent, which said dishonesty is further clarified by the particular circumstances of the offence outlined in the European arrest warrant. The offence also states that in the respondent's attempt to take the drill, ‘he acted to the detriment of the said business.’ It is in those circumstances that the respondent raises the fact that the word ‘owner’ is missing and that no owner has been...

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