Minister for Justice and Equality v Krzysztof Haniszewski
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] IEHC 50 |
| Court | High Court |
| Date | 24 January 2014 |
[2014] IEHC 50
THE HIGH COURT
Between:
AND
European law - Criminal law - Criminal procedure - Surrender - Imprisonment - Objection - Fled - European arrest warrant Act, 2003, as amended
Facts: The respondent was the subject of an arrest warrant on foot of which the Republic of Poland sought his surrender to execute a sentence of imprisonment. The respondent objected to his surrender. The Court considered whether the respondent had fled Poland before commencing the sentence imposed upon him, within the meaning of s. 10 of the European arrest warrant Act, 2003, as amended and the decision of the Supreme Court in Minister for Justice, Equality & Law Reform v. Tobin [2008] 4 IR 42.
Held by Edwards J. that it was appropriate that the respondent would be surrendered. It could be reasonably concluded that he had fled. He had left hospital and came to Ireland knowingly so as to evade justice.
Judgment of Mr Justice Edwards delivered on the 24th day of January 2014.
The respondent is the subject of a European arrest warrant dated the 29th June, 2009, on foot of which the Republic of Poland seeks his surrender for the purpose of executing a single sentence of two years and six months imprisonment imposed upon him by the Circuit Court in Zielona Góra on the 10 th November, 2005, which sentence upheld by the Appeals Court of Poznan on the 18 th April, 2006, some years ago respect of the 29 offences particularised in Part E of the warrant. The warrant was endorsed for execution in this jurisdiction on the 22 nd January, 2013, and it was duly executed on the 12 th April, 2013. The respondent was arrested by Sergeant Gerard Newton on that date, and he was brought before the High Court later on the same day pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s.13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.
The respondent does not consent to his surrender to Poland. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him.
Based upon points of objection filed on behalf of the respondent and actually pursued at the hearing, it can be stated in summary that there are three main controversies that require to be resolved by the Court.
First, the respondent contends that the issuance of the European arrest warrant the subject matter of these proceedings was procured as a result of the applicant interceding with the issuing judicial authority, which intercession it is said was not part of his function or role as the Irish Central Authority, and ultra vires his statutory powers. In the circumstances it is contended that the warrant has not been duly issued and that the Court should refuse to surrender the respondent on that account.
Secondly, it is contended that the Court cannot be satisfied that the sentence of imprisonment is immediately enforceable, and that the Court should refuse to surrender the respondent on that account.
Thirdly, in circumstances where one of the requirements of s. 10 of the European Arrest Warrant Act, 2003, as it applies in this case, is that the Court must be satisfied that the respondent fled from the issuing state, it is contended that the Court cannot be satisfied as to the respondent's flight.
Before addressing each of these controversies individually, it is necessary to address those aspects of the case that are uncontroversial, but in respect of which the Court must nevertheless be satisfied.
The Court has received an affidavit of Sergeant Newton sworn on the 7th October, 2013 testifying as to his arrest of the respondent and as to the questions he asked of the respondent to establish the respondent's identity. When these are compared with the information in Part A of the warrant they can be seen to correspond. On that basis Sergeant Newton was satisfied to express the opinion in para. 10 of his affidavit that the person named on the warrant was the same person as the person he had arrested. In addition, counsel for the respondent has confirmed that no issue arises either as to the arrest or identity.
The Court has also received and has scrutinised a true copy of the European arrest warrant in this case. Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.
I am satisfied following my consideration of these matters that:
a (a)The European arrest warrant was endorsed for execution in this State in accordance with s. 13 of the Act of 2003;
(b) The warrant was duly executed;
(c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;
(d) The warrant as endorsed is in the correct form;
(e) The warrant is a conviction type warrant and the respondent is wanted in Poland for the purposes of executing, and being required to serve, the entirety of a two year and six month sentence of imprisonment, imposed upon him in respect of the twenty nine offences particularised in Part E of the warrant.
(f) The underlying domestic decision on which the warrant is based is a judgment of the Circuit Court in Zielona Góra on the 10 th November, 2005, upheld by the Appeals Court of Poznan on the 18 th April, 2006.
(g) A description of the circumstances in which the 29 offences were committed is set out in Part E of the warrant. They involve 29 separate instances of illegally supplying heroin for reward. Each of the 29 instances is broadly similar but involving different dates, different purchasers, different quantities and different amounts of money or goods received. However, different penalties apply to different charges depending on what provisions of the relevant Polish Statute and the Polish Penal Code they have been charged under.
The warrant indicates that counts 1 and 2 are charged under article 59.3 of the Law on Drug Abuse Prevention of the 29 th July, 2005, in connection with article 12 of the Penal Code and article 65 ?1 of the Penal Code in connection with article 91 Sect; 1 of the Penal Code. A potential penalty of up to two years imprisonment applied in the case of those offences. Counts 3 to 23 inclusive are charged under article 59.1 of the Law on Drug Abuse Prevention of the 29 th July, 2005, in connection with article 12 of the Penal Code and article 65 sect; 1 of the Penal Code in connection with article 91 sect; 1 of the Penal Code. A potential penalty of up to ten years imprisonment applied in the case of those offences. Finally, counts 24 to 29 inclusive were charged under article 58.1 of the Law on Drug Abuse Prevention of the 29 th July, 2005, in connection with article 12 of the Penal Code in connection with article 91 sect; 1 of the Penal Code. A potential penalty of up to three years imprisonment applied in the case of those offences.
(h) In the case of offence nos. 1 and 2, the Court has been invited to find correspondence with the offence in Irish law of possession of a controlled drug for the purposes of sale or supply contrary to s. 15 of the Misuse of Drugs Act, 1977, and I so find.
(i) In respect of offences 3 to 23 inclusive, and also offences 24 to 29 inclusive the issuing judicial authority has invoked para.2 of art.2 of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/J.H.A.) O.J. L190/1 18.7.2002 (hereinafter referred to as "the Framework Decision") by the ticking of a box in Part E.I of the warrant, namely that relating to "illicit trafficking in narcotic drugs and psychotropic substances". Accordingly, subject to the Court being satisfied that the invocation of para. 2 of article 2 is valid ( i.e. that the minimum gravity threshold is met, and that there is no basis for believing that there has been some gross or manifest error), it need not concern itself with correspondence;
(j) The minimum gravity threshold in a case in which para. 2 of article 2 of the Framework Decision is relied upon is that which now finds transposition into Irish domestic law within s. 38(1)(b) of the Act of 2003, as amended, namely that under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years. In circumstances where offences 3 to 23 inclusive carried a potential penalty of up to ten years imprisonment, and offences 24 to 29 inclusive carried a potential penalty of up to three years imprisonment, the minimum gravity threshold is met;
(k) There is no reason, upon a consideration of the underlying facts as set out above, to believe that the ticking of the box relating to "illicit trafficking in narcotic drugs and psychotropic substances" was in error;
(l) In so far as offences 1 and 2 are concerned, the threshold for the purposes of minimum gravity is that set out in s. 38(l)(a)(ii) of the Act of 2003, namely that a sentence of at least four months should have been imposed. In circumstances where a two year sentence was imposed minimum gravity is met.
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Minister for Justice and Equality v J. A. T
...come into it, and why are surrender proceedings taken in his name? In its judgment in Minister for Justice and Equality v. Haniszewski [2014] IEHC 50 (Unreported, High Court, Edwards J., 24 th January, 2014) this Court stated: "Under the European arrest warrant system decisions on rendition......