Minister for Justice and Equality v Sliwa

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 11 April 2016
• Neutral Citation: [2016] IEHC 185
• Docket Number: [2013 No. 22 EXT]
• Court: High Court
• Date: 11 April 2016

IN THE MATTER OF THE EUROPEAN ARREST WARRENT ACT 2003

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

JAROSLAV SLIWA

RESPONDENT

[2016] IEHC 185

Donnelly J.

[2013 No. 22 EXT]

THE HIGH COURT

International law – Extradition – S. 22 of the European Arrest Warrant Act 2003 Further prosecution – Rule of specialty – Breach of fundamental rights – Inhuman prison conditions

Facts: Following the order of the High Court for the extradition of the respondent to the requesting state for being prosecuted in relation to the execution of the European Arrest Warrant (EAW), the judicial authority of the requesting state now sought the permission of the High Court for prosecuting the respondent for the offences pre-dating his surrender or the execution of the sentences already imposed, by way of seven requests. The respondent contended that his prosecution was prohibited under part 3 of the European Arrest Warrant Act 2003 as it would contravene his fundamental rights. The respondent alleged that his frequent prison transfers coupled with inhuman prison conditions were sufficient to prohibit his surrender under s. 37 of the said Act of 2003.

Ms. Justice Donnelly granted the permission to the issuing judicial authority for prosecuting the respondent in relation to the first, second, third, fifth, and sixth requests while denying permission concerning the fourth and seventh requests pending further consideration. The Court held that s. 20 ss. 7of the European Arrest Warrant Act 2003 should be ascribed its plain and natural meaning, which gave the power to the Court to consent to the request in relation to the proceedings that were yet to be commenced; for imposition of penalty; and for execution of a sentence subject to the limitation contained under ss. 8 of s. 22, which was the prohibition contained in Part 3. The Court held that the transfer of the respondent from the prisons with a view to facilitate his presence in the courts would not itself amount to degrading treatment. The Court held that the rule of specialty was not a general rule and it was dependant on the specific terms of the statute.

JUDGMENT of Ms. Justice Donnelly delivered the 11th day of April 2016.

1 On 6th October, 2014, the High Court ordered the surrender of the respondent in respect of four separate European arrest warrants (‘EAWs’) to Poland. Two of those EAWs related to offences for which he was sought for prosecution, the other two EAWs were for the purpose of serving two separate sentences of six months in prison. Since his surrender to Poland, the High Court has received seven separate requests emanating from judicial authorities in Poland seeking permission either to prosecute him for offences pre-dating his surrender, or, to execute sentences which have already been imposed since his surrender for such offences. Pursuant to s. 22 of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’), the High Court is permitted to consent to such prosecutions being brought or to the imposition of a penalty or to proceedings being brought for the purposes of executing a sentence or order of detention.

2 This judgment concerns five of the seven requests. Referring to the order of receipt of the requests in this jurisdiction, the fourth request and the seventh request will be left for further consideration. As regards the fourth request, further consideration of whether consent is prohibited by the terms of s. 45 of the Act of 2003 required additional enquiry by both parties. As regards the seventh request, this was only received by the Court recently and time was needed by the respondent's solicitor to make contact with his client for the purpose of taking instructions.

3 The respondent objected to consent being given to his further prosecution or to the infliction of punishment in Poland. The respondent submitted that the High Court is prohibited from giving consent by virtue of a breach or a prospective breach of s. 22 of the Act of 2003 as well as prospective breaches of Part 3 of the Act of 2003.

Part 3 of the Act of 2003

4 Section 22 ss. 8 of the Act of 2003 states that the High Court shall not give its consent under s. 20 ss. 7 if the offence concerned is an offence for which a person could not, by virtue of Part 3, be surrendered under this Act. Section 37, contained within Part 3, prohibits surrender where surrender would violate fundamental rights.

5 In the Minister for Justice and Equality v. Strzelecki [2015] IESC 15, the Supreme Court confirmed that respondents to s. 22 requests are permitted to raise breaches of their fundamental rights. At para. 45, the Supreme Court concluded ‘[t]he issue of fundamental rights is not excluded for consideration by the courts on a request for consent for further prosecution of a person who is being surrendered. Thus, the issue may be raised and considered by a court. However, it may be in accordance with our jurisprudence, that such issue is determined by the Court to be a matter for litigation in the requesting state.’

Section 38

6 One of the sections contained in Part 3 of the Act of 2003 is section 38. That section prohibits the surrender of a person to an issuing state unless the offence either (a) corresponds to an offence in this jurisdiction and (i) is an offence punishable by a minimum of 12 months imprisonment in the issuing state or (ii) or a term of imprisonment of not less than 4 months has been imposed, or, (b) is an offence to which Article 2 para. 2 of the Framework Decision of 13th June, 2002 on the European Arrest Warrant and surrender procedures between Member States (‘the 2002 Framework Decision’) applies and is punishable in the issuing state by a minimum period of imprisonment of three years.

7 With respect to each of these five requests, I am satisfied that the surrender is not prohibited by section 38. No argument was put forward on behalf of the respondent that such consent was prohibited by s. 38 but for the sake of completeness, I find as follows:

First request III kop 47/14 (29th January. 2015).

The three offences are theft/fraud offences and the issuing judicial authority has ticked the swindling box in point E 1 of the request. That is not manifestly incorrect and therefore correspondence does not have to be established. These are offences of appropriate minimum gravity in the issuing state.

Second request III kop 69/15 (26th June, 2015).

These refer to two offences of deceitfully obtaining money or items. The acts described correspond in this jurisdiction with the offence of making gain or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (‘the Act of 2001’). The minimum gravity requirements have been met in the issuing state.

The third request III kop 147/15 (5th August, 2015).

This relates to four offences which are indicated as fraud offences by the issuing judicial authority under point E 1 of the EAW. This is not a manifestly incorrect designation and the requirements of minimum gravity have been met.

The fifth request II kop 31/15 (6th October, 2015).

He is sought in relation to two offences of deceit similar to those in the second request. The acts described correspond with an offence contrary to s. 6 of the Act of 2001. They also are offences reaching the required minimum gravity in the issuing state.

Sixth request XXI kop 42/15 (11th December, 2015).

This is a similar type offence of deceit as previous and it also corresponds with the offence of s. 6 of the Act of 2001. The offence meets the required minimum gravity in the issuing state.

Section 37

Prison conditions

8 The respondent submitted that consent should be refused as there is a real risk of inhuman and degrading treatment by virtue of the conditions of detention in Poland in which the respondent finds himself; this includes the physical conditions and also the manner in which the issuing state has disregarded his right to liberty, the rule of specialty, and has delayed processing the various s. 22 petitions which has caused prejudice to him. The Court will deal with the issue of prison conditions first. The other matters, e.g. his right to liberty and the rule of specialty and delay in processing s. 22 petitions more properly fall to be considered under s. 22 of the Act of 2003.

9 The respondent, through his solicitor, has put before the Court a number of letters as regards the conditions he experiences in Polish prisons. He has also put before the Court what is titled a ‘deposition’; this was apparently given to his Polish solicitor while in prison in Poznan. The respondent has solemnly sworn that his written statement is true, but the jurat is not in accordance with the rules concerning an Irish affidavit. Furthermore, the affidavit does not appear to be sworn in accordance with the rules for affidavits sworn outside the jurisdiction. No real issue was taken with this and I am prepared to receive it as evidence in all the circumstances.

10 The respondent's counsel has set out a succinct statement of the complaints that the respondent makes. These are:

a) Losing 20kg in weight due to inadequate nutrition

b) Overcrowding, in cells routinely with over four persons, and no more than three square metres per person

c) Damp, cold conditions, with largely unheated cells, even in winter

d) Lice ridden ancient dirty mattresses and inadequate bed linen

e) Being only permitted to shower twice or even only once a week

f) Limited hygiene products

g) Inadequate access to medical or dental services

h) Disgusting food not fit for human consumption

i) Bullying and physical violence from prison guards

j) Repeated transfers from prison to prison since October, 2015; he has been transferred seventeen times at least

k) Violation of the rule of specialty; disregard for his legal rights adds to the inhumanity and...