Minister for Justice and Equality v Antkiewicz

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 19 December 2014
• Neutral Citation: [2014] IEHC 650
• Docket Number: [2013/162 EXT.]
• Court: High Court
• Date: 19 December 2014

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

PIOTR ANTKIEWICZ

RESPONDENT

[2014] IEHC 650

[2013/162 EXT.]

THE HIGH COURT

Extradition – s. 11, s. 16, s. 21A and s. 37(1)(a) of the European Arrest Warrant Act 2003 – Objections to surrender

Facts: The respondent was the subject of the European Arrest Warrant issued by Poland. The respondent did not consent to his surrender. The applicant asked the court for an order pursuant to s. 16 of the European Arrest Warrant Act 2003 (‘the 2003 Act’) that the respondent be surrendered to the issuing state. The respondent objected to his surrender on two grounds. The first relates to s. 11 of the 2003 Act that the warrant failed to specify the involvement of the respondent in the offences contained within it. The respondent contended that the offences described in the warrant did not correspond to the offences under the laws of the issuing state. The respondent also objected to his surrender because it would be a disproportionate interference with his Article 8 rights in contravention with s. 37(1)(a) of the 2003 Act. The respondent also cited his ill health and the delay in issuing and executing the warrant as matters prohibiting his surrender. The respondent”s final objection was that the issuing state had failed to decide to charge him with the offences outlined in the warrant.

Held by Murphy J: It was for the respondent to rebut the presumption in s. 21A(2) that the issuing state had made a decision to charge and try the respondent for the offences in the warrant. The court was satisfied that the respondent failed to rebut this presumption. The court held that there was no want of compliance with s. 11(1A)(e) of the 2003 Act. They determined that the language used in the warrant may have been unwieldy but it left no doubt as to the allegations against the respondent. The respondent”s ill health was of itself not a reason to refuse surrender. The respondent also failed to provide proof that he would not receive appropriate treatment for his health condition in Poland. The court determined that the respondent did not have anyone in the jurisdiction who was emotionally or financially dependant upon him. The delay in proceedings was not enough to outweigh public interest in the respondent”s extradition. The respondent failed to discharge the onus upon him to prove that his surrender would result in a disproportionate interference with his Article 8 rights. The court was ultimately satisfied the requirements of s. 16 of the 2003 Act had been met and ordered the respondent to be surrendered to Poland.

RULING/JUDGMENT of Ms. Justice Murphy delivered the 19th day of December, 2014

Introduction

1 The respondent is a citizen of Poland and he is the subject of a European Arrest Warrant issued by the Republic of Poland on the 14th March 2013. The warrant was endorsed by the High Court for execution on 2nd July 2013. The respondent was arrested pursuant to the warrant on 20th November 2013 by Garda Niamh Coates and was brought before the High Court on the same date pursuant to s. 13 of the European Arrest Warrant Act 2003.

2 In the course of the section 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 on 3rd July, 2014 which continued on 6th October, 2014 and the 3rd November, 2014.

3 The respondent does not consent to his surrender to the Republic of 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 the respondent be surrendered to such person as is duly authorised by the insuring state to receive him.

4 Points of Objection

Points of objection were filed on the 18th February 2014. Two of the grounds of objections relate to s. 11 of the Act of 2003. Firstly, the respondent objects that the warrant fails to specify the individual actions and/or the precise degree of involvement of the respondent in the offences outlined in the warrant and each or other of them as required by section 11(1A)(f) of the Act of 2003 and the respondent further objects that the warrant fails to disclose that a warrant for the respondent”s arrest in the issuing state has been issued in respect of the offences and each or other of them as required by s. 11(1A)(e) in circumstances where the warrant fails to show any or any adequate connection between the judicial decision of the regional court in Legnica of 15th October 2009 and the offences outlined in the warrant. The respondent objects that the offences and each or other of them described in the warrant do not correspond to offences under the laws of the state and that by reason thereby surrender is prohibited by s. 5 and/or s. 38 of the Act of 2003. The respondent further objects that his surrender is prohibited pursuant to s. 37(1)(a) and or s. 37(1)(b) of the Act of 2003 in that his surrender would be a disproportionate interference with his Article 8 rights under the European Convention on Human Rights having regard to his personal and familial situation, his ill health and the inordinate and inexcusable delay in the issuing, transmission and execution of the European Arrest Warrant. Finally the respondent objects that his surrender is prohibited pursuant to section 21A(1) of the Act of 2003 on the grounds that a decision has not been made by the issuing state to charge the respondent with and try him for the offences outlined in the warrant and each or other of them.

5 The evidence

The European warrant in this case is a prosecution warrant which seeks the surrender of the respondent in respect of 3 offences the particulars of which are stated at paragraph E to be;

(1) In a period from the 2nd January 2005 to 4th September 2006 in Legnica, acting with planned intent, running a business under the name of COL-MET and performing in fact activities connected with scrap metal buying up within the scope of business of the RAFI company of Marcin Antkiewicz, he guided the execution of an unlawful act by Marek Sêkowski and Pawel Kowalczyk in such a way that; he ordered Marek Sêkowski, being a person entitled to issue documents in form of records of scrap metal purchase from natural persons, to attest an untruth via filling in the said records with untrue details as to quantities and kinds of bought up scrap metals and purchase prices which were of legal meaning for the determination of the scope of business, and which documents are enumerated in pages 1226-1232.

He ordered Pawel Kowalczyk, being a person entitled to issue documents in form of records of scrap metal purchase from natural persons, to attest an untruth via filling in the following records with untrue details as to quantities and kinds of bought up scrap metals and purchase prices which were of legal meaning for the determination of the scope of business, and he ordered him (Pawel Kowalczyk) to forge signatures of persons described as scrap metal sellers, and which documents are enumerated in pages 1232-1238.

(2) In a period from 25th February 2005 to 21st December 2006 in Legnica acting as the owner of the Skup Surowców Wtórnych COL-MET Piotr Antkiewicz company [scrap metals buying up company], and fulfilling criteria of continuous offence, i.e. in short intervals acting to satisfy the same intent, he provided untrue details in his VAT-7 tax returns covering the period from January 2005 to November 2006 submitted to the Revenue Office in Legnica, in such a way that he indicated the tax assessed in the said tax returns in a total amount of PLN 1,165,811.00 resulting from invoices documenting transactions which in fact had not occurred, and with persons who had not run any real businesses, and he indicated the tax due in a total amount of PLN 1,296,913.00 resulting from invoices which did not reflect in a real manner the transactions of scrap metal buying up, in result of which he exposed the reduction of the tax amounting to PLN 1,165,811.00 (page 1248).

(3) In a period from 26th January 2007 to 25th April 2007 in Legnica, fulfilling criteria of continuous offence, in order to suppress running a business in the scope of scrap metal and wooden palette buying up he used a name of another company i.e. KONGLOMERAT GPP Witold Szymczak, ordering to issue 57 sales invoices specified in details in pages 1248-1249, in which he was not showed as a party of transactions though he in fact participated in scrap metal and wooden palette buying up, in result of which he exposed the reduction of the tax amounting to PLN 136,690.48 due to non payment of this tax liability by Witold Szymczak.

6 The nature and legal classification of the offences are stated to be as follows; in respect of offence number 1 it is stated to be an offence against credibility of documents contrary to Article 270§1 and Article 271§1 of the penal code. The second offence is stated to be a tax offence contrary to Article 56§1 of the tax penal code and the third offence is similarly described as being contrary to Article 55§1 of the tax penal code, a tax offence. Reliance has not been placed on any of the tick box offences and accordingly correspondence is required to be established.

7 At paragraph B of the warrant, the decision on which the warrant is based is said to be an enforceable verdict on provisional detention being the ‘ judicial decision of regional court in Legnica of 15th October 2009 in case file number VI Ds. 3/10 (former No. V Ds. 26/06) on application of preventive measure in form on pre-trial detention (emphasis added) for a period of 14 days since the day of apprehension (II Kp 769/09)’, an ‘ enforceable verdict on application of another measure consisting in deprivation of freedom’ being the ‘ ...