Minister for Justice and Equality v Ptak

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 15 June 2017
• Neutral Citation: [2017] IEHC 418
• Date: 15 June 2017
• Court: High Court
• Docket Number: Record No.'s 2016/236 EXT 2017/7 EXT

BETWEEN:-

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ROBERT PAWEL PTAK

RESPONDENT

[2017] IEHC 418

Donnelly J.

Record No.'s 2016/236 EXT

2017/7 EXT

THE HIGH COURT

International Law – Extradition – Execution of European Arrest Warrant (‘EAW’) – 2002 Framework Decision – European Convention on Human Rights (‘ECHR’) – s. 16(1) of the European Arrest Warrant Act, 2003 – Trial in Absentia – Surrender – Breach of Fundamental Rights – Un-established Date – Possibility of Double Jeopardy

Facts: The applicant sought an order for the surrender of the respondent on foot of execution of two European Arrest Warrants. The respondent denied being the ‘person’ as enumerated in s. 16(1) of the European Arrest Warrant Act, 2003. Further, the respondent claimed that the surrender would be prohibited under s. 45 of the EAW Act, 2003 as the trial had been conducted in the respondent's absence. The respondent anticipated that the failure to disclose the date of alleged commission of offences would create a possibility of double jeopardy.

Ms. Justice Donnelly held that the application for the surrender of the respondent would be granted. The Court stated that the requirements of s. 16(1) of the Act of 2003 had been satisfied. The Court held that the surrender of the respondent would not be prohibited under s.45 of the EAW. The Court found that the respondent had been summoned in person and that the respondent had intentionally absented from the trial. The Court found that the fact of initial date of offence not being established had no bar to surrender. The Court noted that there had been no lack of clarity as to the offence for which surrender had been sought as there had been a proper classification of the offences committed by the respondent.

JUDGMENT of Ms. Justice Donnelly delivered this 15th day of June, 2017.

1 The surrender of the respondent is sought by Poland pursuant to two European Arrest Warrants (‘EAWs’) dated 14th October, 2013 (‘the first EAW’) and 2nd January, 2017 (‘the second EAW’). In the first EAW, the respondent is sought for prosecution whereas in the second EAW he is sought for the purpose of serving two separate sentences. A number of the respondent's points of objection covered both EAWs but some objections were specific to an individual European arrest warrant.

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

2 The surrender provisions of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’) apply to those member states of the European Union (‘E.U.’) 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 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) (No. 3) Order 2004 ( S.I. No. 206/2004), the Minister for Foreign Affairs has designated Poland as a member state for the purposes of the Act of 2003.

Section 16(1) of the Act of 2003

Identity

3 Initially, the respondent made a preliminary point of objection claiming that he was not the person sought in these European arrest warrants. He subsequently amended this point of objection and characterised his position as a neutral one, thereby leaving it to the Court to be satisfied as to identity. The person who is before the Court denied on arrest that he was the respondent to these European arrest warrants. On his arrest in respect of each EAW, the respondent gave a different name and a different date of birth to the particulars set out on the European arrest warrant. The details he gave are unknown to the authorities in Poland.

4 The respondent was identified by Sergeant Kirwan, member of An Garda Síochána, as the requested person by his very particular tattoos and also by the fact that he agreed that a photograph sent by Interpol of the person wanted was indeed a photograph of him. Furthermore, it has not been contested that Sergeant Kirwan is correct when he says that fingerprints taken from the respondent in custody match those of the person sought in the European arrest warrants. On the basis of the foregoing evidence, which I accept, I am satisfied that the person before me is the person in respect of whom each of the EAWs have issued.

Endorsement

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

Sections 21A, 23 and 24 of the Act of 2003

6 I am satisfied that the High Court is not required, under sections 21A, 23 or 24 of the Act of 2003, to refuse the surrender of the respondent on the second EAW and that the High Court is not required under s. 23 or s. 24 of the Act of 2003 to refuse his surrender on the first European arrest warrant.

7 The respondent included an objection based upon the provisions of s. 21A of the Act of 2003 in his points of objection to surrender on the first European arrest warrant. This first EAW states that the decision on which the EAW is based is an enforceable verdict on provisional detention. It also states that the maximum sentence is 5 years deprivation of liberty on one offence and 8 years deprivation of liberty on the second offence. Under both the length of custodial sentence or detention order imposed and the remaining sentence to be served, it refers to the preventative measure in the form of pre-trial detention for a period of 3 months.

8 Point (d) of the first EAW was not completed. The central authority sought confirmation that the respondent was sought for the purposes of prosecution and that he had not yet been sentenced in respect of the offences in light of the manner in which point (c) of the EAW had been completed. The issuing judicial authority stated that the respondent was sought ‘in order to conduct criminal prosecutions’ and the fact that he had gone into hiding and it was now ‘not possible to judge him’. It was stated that this EAW did not refer to execution of custodial sentences.

9 I have no hesitation in holding that the respondent is sought for the purpose of criminal prosecution. I am also satisfied, in light of the presumption in s. 21A(2) of the Act of 2003, that a decision has been made to charge him with and try him for the offences set out in the first European arrest warrant. There is no ground for prohibiting his surrender under this section.

Part 3 of the Act of 2003

10 An issue arose in respect of the first EAW as regards the number of offences for which the respondent was sought. The first EAW records that he is sought for 18 offences. However, 20 individual offences are itemised at point (e) of the first European arrest warrant. There was correspondence between the central authority and the issuing judicial authority relating to other aspects that concerned the offences and there was a reference therein to offence ‘I’ and to the other offences ‘II to XX’. Counsel for the minister submitted that the response which refers to Offence I to that effect that ‘it is a distinct offence to other offences from II through XX’ is sufficient to provide the clarity that is needed to show that he is being sought from 20 offences.

11 The Court disagreed with that submission. While it might have been a typographical error, it was an unexplained error in relation to a matter which is of considerable importance, namely the precise number of offences for which he is to be surrendered. Furthermore, unlike, for example, a misspelt name or even a clearly incorrect date, the court could not disregard a clear contradiction in the EAW by assuming that 20 was the correct number of offences and not 18. Even the further information received from the issuing judicial authority did not put this issue to rest as this was based upon a direct question from the central authority concerning another matter and was not addressed specifically to elucidating the number of offences for which the respondent was sought.

12 The Court sought this information by making a request pursuant to s. 20 of the Act of 2003. This request was transmitted on behalf of the High Court by the central authority to the issuing state by letter dated 12th May, 2017 and sought clarification as to the number of offences to which the EAW related.

13 The issuing judicial authority replied by way of letter dated 15th May, 2017, stating that ‘[…] Ptak, Robert Pawel in case III Kop 148/13 is requested in connection with being accused of having committed 20 offences which have been described in details in Section E2, while the digit “18” as indicated in Section E1 is an obvious typing error which has been made in the translation of the European arrest warrant because in the original Polish version a digit “20” is indicated’.

14 The error in the translation having been pointed out, I am satisfied that the reference to 18 offences was a typographical error and that there is no doubt that the respondent is being sought for prosecution for the 20 offences which are detailed in point (e) of the European arrest warrant. There is no basis for refusing his surrender on the basis of this typographical error.

Section 38 of the Act of 2003

The First European Arrest Warrant

15 All twenty offences have been designated as offences of either ‘participation in a criminal organisation’ or ‘swindling’ to which Article 2 para. 2 of the 2002 Framework Decision applies and therefore it is not necessary to show correspondence. The Court is satisfied that there is no manifestly incorrect designation of these offences. However, the respondent takes issue with the lack of clarity as to which of these offences have been designated as ‘participation in a criminal organisation’ and which have been designated as ‘swindling’.

16 The Court rejects this argument for a number...