Minister for Justice and Equality v Dariusz Stalkowski and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 18 November 2014 |
| Neutral Citation | [2014] IEHC 647 |
| Court | High Court |
| Date | 18 November 2014 |
[2014] IEHC 647
THE HIGH COURT
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EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
EUROPEAN ARREST WARRANT ACT 2003 S37(A)(I)
EUROPEAN ARREST WARRANT ACT 2003 S37(A)(II)
POLISH PENAL CODE ART 284(2)
POLISH PENAL CODE ART 284(1)
POLISH PENAL CODE ART 278(1)
POLISH PENAL CODE ART 101(1.4)
POLISH PENAL CODE ART 102
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STATE (O'CALLAGHAN) v O HUADHAIGH 1977 IR 42
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EXTRADITION ACT 1989 (UK)
EXTRADITION ACT 2003 (COMMENCEMENT AND SAVINGS) (AMDT) ORDER 2003 (UK)
EXTRADITION ACT 2003 PART 2 (UK)
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CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S69
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CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79
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DUTTON v O'DONNELL 1989 IR 218
DALTON v GOVERNOR OF TRAINING UNIT GLENGARRIFF PARADE DUBLIN 1999 1 ILRM 439 1998/35/6289
CASEY v GOVERNOR OF CORK PRISON UNREP HERBERT 13.9.2000 2000/4/1309 2000 IEHC 64
DUNNE v DPP UNREP CARNEY 6.6.1996 1998/5/1468
CORMACK & FARRELL v DPP & JUDGES OF THE METROPOLITAN DISTRICT COURT 2009 2 IR 208 2008/8/1656 2008 IESC 63
EUROPEAN ARREST WARRANT ACT 2003 S13
EUROPEAN ARREST WARRANT ACT 2003 S37
European Arrest Warrant – Rendition – Delay – Practice and Procedures - European Arrest Warrant Act 2003 – Human Rights
Facts: In this case the respondent was the subject of a European Arrest Warrant issued by a competent judicial authority in the Republic of Poland which sought his rendition both for the purposes of prosecution and also for the execution of a sentence. The warrant was dated the 29th October, 2010 and was endorsed for execution in this jurisdiction on the 26th January, 2011. There were three main controversies in the case. Insofar as the warrant sought the respondent”s rendition for the purposes of prosecution the respondent relied upon an abuse of process argument, due to a request for a change of charge within the Polish Courts. In addition, the respondent also sought to resist his surrender both for prosecution and for the execution of the said sentence on the grounds of delay, and also on the grounds that his proposed rendition would involve a disproportionate interference with his rights to respect for family life, and privacy, as guaranteed under Article 8 of the European Convention on Human Rights (the E.C.H.R.). To that end, the respondent relied upon s. 37 (a) (i) and (ii) of the European Arrest Warrant Act 2003.
Held by Justice Edwards in light of the available evidence and submissions presented that he was not satisfied that the conduct identified as constituting an alleged abuse of process in this case was in fact capable of amounting to an abuse of the Court”s process. There was deemed to be insufficient evidence of a cogent nature of anything unlawful or improper having been done, by either the District Prosecutor or by the District Court of Toruñ - 2nd Criminal Division in Poland. Equally, there was no cogent evidence of anything having been done in bad faith. Consequently, the Court determined that it was not disposed in the circumstances to uphold the objection based upon abuse of process. In respects of the objection based upon delay, Justice Edwards stated that counsel for the respondent had sought to argue that the Court had an inherent jurisdiction to refuse surrender on the grounds of delay based on domestic jurisprudence which required bench warrants, committal warrants and other domestic warrants of apprehension to be executed promptly and without delay. Reasoning that a European arrest warrant was not analogous to a bench warrant or a domestic arrest warrant, the Court determined that it was not disposed to uphold the objection based upon delay as a standalone ground. Finally, in respects of the respondents argument that his proposed rendition would involve a disproportionate interference with his rights to respect for family life, and privacy, Justice Edwards also found that the Court was not disposed to uphold that objection. The evidence in the case, it was determined, did not remotely approach what was required to justify a finding that the proposed rendition of the respondent would be a disproportionate interference with his right to respect for family life.
JUDGMENT of Mr. Justice Edwards delivered on the 18th of November, 2014.
In this case the respondent is the subject of a European arrest warrant issued by a competent judicial authority in the Republic of Poland which seeks his rendition both for the purposes of prosecution and also for the execution of a sentence. The warrant is dated the 29 th October, 2010 and was endorsed for execution in this jurisdiction on the 26 th January, 2011.
There are three main controversies in the case. In so far as the warrant seeks the respondent's rendition for the purposes of prosecution the respondent relies upon an abuse of process argument. In addition, the respondent seeks to resist his surrender both for prosecution and for the execution of the said sentence on the grounds of delay, and also on the grounds that his proposed rendition would involve a disproportionate interference with his rights to respect for family life, and privacy, as guaranteed under Article 8 of the European Convention on Human Rights (the E.C.H.R.). To that end, the respondent relies upon s. 37 (a)(i) and (ii) of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003").
The facts underpinning the abuse of process objection can be simply stated. The first offence for which the respondent is wanted for prosecution bears the Polish domestic file reference '4Ds. 99/01'. The offence is described in the warrant as 'appropriation of an entrusted thing' which is an offence provided for in Article 284 § 2 of the Polish Penal Code. It is alleged that, on the 17 th November 2000 in Torun, the requested person misappropriated the amount of PLN11, 550 which he had collected from a shop in the course of his duties as an escort. However, this otherwise straightforward matter is complicated by the fact that the respondent was originally charged with an offence under Article 284 § 1 rather than Article 284 § 2 of the Polish Penal Code. They represent slightly different variants of the same offence. Both attract a potential penalty of up to five years imprisonment. The critical difference from the point of view of the present proceedings is that an offence charged under Article 284.1 of the Polish Penal Code becomes statute barred in the issuing state after ten years whereas an offence charged under Article 284.2 of the Polish Penal Code becomes statute barred in the issuing state after twenty years.
The alleged abuse of process arises in the following circumstances. The respondent having been charged with an offence contrary to Article 284 § 1 of the Polish Penal Code, the case was before the District Court of Torun - 2 nd Criminal Division in June 2010 at the behest of the District Prosecutor's Office and for the purpose of seeking from that Court an order for the temporary arrest and detention of the respondent for a period of 14 days.
(In this Court's experience such a step is the usual precursor in Poland to the issuance of a European arrest warrant in...
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Finnegan v Superintendent of Tallaght Garda Station
...apply the authorities concerning delay in the execution of warrants to extradition proceedings. See Minister for Justice v. Stalkowski [2014] IEHC 647 per Edwards J. at p. 34. It was submitted that logically the converse should also apply. Authorities dealing with delay in extradition cases......