Minister for Justice and Equality v Marjasz

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 24 April 2012
• Neutral Citation: [2012] IEHC 233
• Court: High Court
• Date: 24 April 2012

Min for Justice v Marjasz

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

- AND -

TOMASZ MARJASZ

RESPONDENT

[2012] IEHC 233

Record No.: 386 EXT/2010

387 EXT/2010

THE HIGH COURT

EXTRADITION

European arrest warrant

Application for surrender for serving of sentence - European arrest warrant - Objections - Poland - Breach of constitutional rights - Right to legal representation - Lack of correspondence with Irish law - Prosecution predated setting up of European arrest warrant system - Sentence initially suspended for three years - Suspension lifted - Tried in absentia for offence that triggered lifting of suspension - No legal representation - Request to issuing state for further information - Legal aid in issuing state - Extant conviction result of unfair trial - Review of trial process - Presumption of fair trial - Duty of utmost good faith - Mutual trust and confidence - Right to be informed of right to legal aid - Forced to confess by police - Right not to be deprived of liberty - Handling of stolen property - Criminal damage without lawful excuse - Minimum gravity - Proportionality - Whether cogent evidence of unfair trial - Whether surrender incompatible with Convention or Constitution - Whether surrender prohibited - Whether correspondence with offence in Irish law - Whether fled from issuing state - Minister for Justice v Brennan [2007] IESC 21, [2007] 3 IR 732; Minister for Justice v Stapleton [2007] IESC 30, [2008] 1 IR 669; State (Healy) v Donoghue [1976] IR 325; Cahill v Reilly [1994] 3 IR 547; McSorley v Governor of Mountjoy Prison [1996] 2 ILRM 331; Clarke v Kirby [1998] 2 ILRM 30; Leonard v Garavan [2003] 4 IR 60; Nottinghamshire County Council v B [2011] IESC 48 (Unrep, SC, 15/12/2011); Attorney General v Dyer [2004] 1 IR 40; Minister for Justice, Equality and Law Reform v Dolny [2009] IESC 48, (Unrep, SC, 18/6/2009); Minister for Justice, Equality and Law Reform v Sas [2010] IESC 16, (Unrep, SC, 18/3/2010); Minister for Justice v Tobin [2007] IEHC 15 & [2008] IESC 3, [2008] 4 IR 42 and Minister for Justice, Equality and Law Reform v Slonski [2010] IESC 19, (Unrep, SC, 25/3/2010) considered - European Arrest Warrant Act 2003 (Designated Member States) (No 3) Order 2004 (SI 206/2004), art 2 - European Arrest Warrant Act 2003 (No 45), ss 3(1), 4A, 10, 13, 16, 20(1), 21A, 22, 23, 24, 37, 38 and 45 - Criminal Justice (Terrorist Offences) Act 2005 (No 2), ss 71, 79, 80, 81 and 82 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), s 17(1) - Criminal Law Act 1997 (No 14), s 7(1) - Criminal Damage Act 1991 (No 31), s 2(1) - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 28) - Constitution of Ireland 1937, Arts 38 and 40.4.2 - Council Framework Decision 2002/584/JHA - European Convention on Human Rights and Fundamental Freedoms 1950, art 6 - Charter of Fundamental Rights of the European Union, art 47 - Surrender refused (2010/386EXT & 2012/387EXT - Edwards J - 24/4/2012) [2012] IEHC 233

Minister for Justice and Equality v Marjasz

Facts: The respondent, a Polish national, was the subject of two European Arrest Warrants ("the warrants") dating back to 2006. The respondent had been arrested on the foot of the warrants in 2011. The first warrant sought the arrest of the respondent with a view to having him return to serve a sentence of five months imprisonment. The respondent sought to object to his surrender.

Held by Edwards J, that surrender of the respondent on the second of the warrants would be refused as the respondent appeared to have been tried in absentia and without notification of the proceedings.

In regards of the first of the warrants, the respondent submitted, inter alia, that his surrender was prohibited by ss 37 and 38 of the European Arrest Warrant Act 2003 for infringing his constitutional rights and lack of correspondence respectively.

The Court considered that a refusal to order surrender on s 37 grounds that a conviction was obtained after an unfair trial would be made in limited circumstances only. The Court would start with a presumption that the trial was fair and it was necessary for the subject of the warrant to first seek remedy in the issuing state before challenging the matter in the current jurisdiction. The evidence suggested the respondent was not denied his rights at trial nor misinformed about his rights. Further, there was no evidence that he was mistreated by the police. His submissions on s 37 were therefore without merit.

The respondent contended that the offences the first warrant related to had no correspondence with offences in Irish law. Whilst this was not true in respect of one offence, the other offence did not correspond to an offence in Irish law. Irish law required a number of elements that were not specified, and could not be inferred, in the first of the warrants. The Court would therefore refuse the surrender of the respondent accordingly. Attorney General v Dyer [2004] 1 IR 40 applied

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S13

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 ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 SCHED

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 PART III

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 16

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 78

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 79

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 80

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 81

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 300

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONSTITUTION ART 38

CONSTITUTION ART 38.1

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 12

MIN FOR JUSTICE v BRENNAN 2007 3 IR 732 2007/40/8282 2007 IESC 21

CONSTITUTION ART 40.4.2

EUROPEAN ARREST WARRANT ACT 2003 S4A

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(C)

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

CAHILL v JUDGE REILLY & DPP 1994 3 IR 547 1992/5/1572

MCSORLEY & MULHOLLAND v GOVERNOR OF MOUNTJOY PRISON 1996 2 ILRM 331 1996/6/1753

CLARKE v JUDGE KIRBY & DPP 1998 2 ILRM 30

LEONARD v JUDGE GARAVAN 2003 4 IR 60 2002/15/3632

NOTTINGHAMSHIRE CO COUNCIL v B (K) & B (K) UNREP SUPREME 15.12.2011 2011 IESC 48

PENAL CODE OF THE REPUBLIC OF POLAND ART 291(1)

PENAL CODE OF THE REPUBLIC OF POLAND ART 288(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17(1)

CRIMINAL LAW ACT 1997 S7(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17(1)(A)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17(1)(B)

CRIMINAL DAMAGE ACT 1991 S2(1)

AG v DYER 2004 1 IR 40 2004 1 ILRM 542 2004/3/491 2004 IESC 1

MIN FOR JUSTICE v DOLNY UNREP SUPREME 18.6.2009 2009/39/9618 2009 IESC 48

MIN FOR JUSTICE v SAS UNREP SUPREME 18.3.2010 2010/34/8657 2010 IESC 16

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S6

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

MIN FOR JUSTICE v TOBIN 2008 4 IR 42

PENAL CODE OF THE REPUBLIC OF POLAND ART 75(1)

MIN FOR JUSTICE v SLONSKI 2010 2 ILRM 387 2010/36/9019 2010 IESC 19

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

1 JUDGMENT of Mr. Justice Edwards delivered on the 24 th day of April, 2012

Introduction

2 This case concerns applications by the applicant for orders pursuant to s. 16 of the European Arrest Warrant Act 2003 (hereinafter the Act of 2003) surrendering the respondent to Poland on foot of two European arrest warrants dated the 17 ^th July, 2006, (covering case ref: II K 268/01) and the 7 ^th August, 2006, (covering case ref: II K 217/03) respectively. However, the controversies addressed in this judgment relate only to the first of those warrants in circumstances where the applicant acknowledges that the respondent was tried in absentia for the single offence which is the subject of the second warrant. No undertaking pursuant to s.45 of the Act of 2003 is forthcoming from Poland, and there is no evidence that the respondent was duly notified of his trial by means of a document personally served upon him. In the circumstances the Court has had no option but to refuse to surrender the respondent on foot of the warrant dated the 7 ^th August, 2006.

Uncontroversial matters

3 In so far as the first warrant (i.e. the warrant dated the 17 ^th July, 2006) is concerned, that warrant was endorsed by the High Court for execution in this jurisdiction on the 20 ^th October, 2010. The respondent was arrested in execution of that warrant by Detective Garda Ray Shortall on the 10 ^th January, 2011, at Kells, Co. Meath following which he was brought promptly before the High Court in accordance with s.13 of the Act of 2003....