Minister for Justice and Equality v DL

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 22 June 2011
• Neutral Citation: [2011] IEHC 248
• Court: High Court
• Date: 22 June 2011

[2011] IEHC 248

THE HIGH COURT

Record No.: 226 EXT/2008

Min for Justice v L (D)

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 -

D. L.

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S18(1)

EUROPEAN ARREST WARRANT ACT 2003 S18(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 23.4

MIN FOR JUSTICE v ADAM (NO 2) UNREP EDWARDS 10.3.2011 2011 IEHC 87

EUROPEAN ARREST WARRANT ACT 2003 S18(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(2)

MIN FOR JUSTICE v BEDNARCZYK UNREP EDWARDS 5.4.2011 2011 IEHC 136

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD ART 3(1)

CONSTITUTION ART 29.3

CONSTITUTION ART 29.6

O'LAIGHLEIS, IN RE 1960 IR 93

UNER v NETHERLANDS 2006 3 FCR 340 2007 45 EHRR 14

TREATY ON EUROPEAN UNION ART 6(1)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 52

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TITLE VII

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 52(5)

H (Z) (TANZANIA) v SECRETARY OF STATE FOR THE HOME DEPT 2011 2 WLR 148 2011 2 AER 783 2011 1 FCR 221 2011 UKSC 4

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD ART 3

TREATY ON EUROPEAN UNION ART 6

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

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 14

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S45

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(3)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(1)

NORRIS v GOVT OF THE UNITED STATES OF AMERICA (NO 2) 2010 2 AC 487 2010 2 WLR 572 2010 2 AER 267 2010 UKSC 9

B v DISTRICT COURT IN TRUTNOV & DISTRICT COURT IN LIBEREC (TWO CZECH JUDICIAL AUTHORITIES) UNREP 15.4.2011 2011 EWHC 963 (ADMIN)

R (H (H)) v CITY OF WESTMINSTER MAGISTRATES COURT 2011 ACD 94 2011 EWHC 1145 (ADMIN)

MIN FOR JUSTICE v J (FL) UNREP EDWARDS 8.4.2011 (EX TEMPORE)

MIN FOR JUSTICE v ADAM (NO 1) UNREP EDWARDS 3.3.2011 2011 IEHC 68

EXTRADITION

European Arrest Warrant

Postponement of surrender - Humanitarian grounds - Gravity of humanitarian grounds - Prejudice to third party - Public interest in extradition - Best interests of child - Whether harm to child of respondent sufficient ground for postponement of surrender - Whether gravity threshold of serious humanitarian considerations met - Whether Charter of Fundamental Rights applicable in European arrest warrant proceedings - Minister for Justice v Adam (No. 2) [2011] IEHC 87, (Unrep, Edwards J, 10/3/2011), Norris v USA (No 2) [2010] UKSC 9, [2010] 2 AC 487, B v District Courts in Trutnov and Liberic (Czech Judicial Authorities) [2011] EWHC 963 (Admin), (Unrep, High Court, Silber J, 15/4/2011), R (HH) v Deputy Prosecutor of the Italian Republic [2011] EWHC 1145 (Admin), (Unrep, High Court, Laws LJ, 11/5/2011) and Minister for Justice v Adam (No 1) [2011] IEHC 68, (Unrep, Edwards J, 3/3/2011) approved - European Arrest Warrant Act 2003 (No 45), ss 16, 18(1), 18(2), 18(3), 37 and 45 - Council Framework Decision of 13 June 2002, article 23(4) - Charter of Fundamental Rights of the European Union, article 24 - European Convention on Human Rights, article 8 - UN Convention on the Rights of the Child, article 3.1- Postponement refused (2008/357Ext -Edwards J - 22/6/2011) [2011] IEHC 248

Minister for Justice, Equality and Law Reform v L(D)

1 JUDGMENT of Mr. Justice Edwards delivered on the 22nd day of June, 2011

Introduction

2 The respondent in these proceedings (and the applicant/moving party in the present motion) is the subject of a European arrest warrant issued by the Republic of Poland on the 27th of August, 2008. The warrant was endorsed for execution by the High Court in this jurisdiction on the 21st of November, 2008. The respondent was arrested in August, 2010, and brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act 2003, as amended, (hereinafter referred to as "the Act of 2003").

3 The respondent is wanted to serve a composite sentence of two years and six months imprisonment imposed on him by a District Court in Poland on the 10 ^th of October, 2005, for two offences corresponding in this jurisdiction to the offences of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001 and assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997, respectively. The matter proceeded in due course to a s.16 hearing and on the 25 ^th of May, 2006, this Court made an order pursuant to s.16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him.

4 Immediately following the making of the s.16 order, the respondent made an application for the postponement of his surrender on humanitarian grounds pursuant to s. 18(1) and (2) of the Act of 2003. As important legal issues were raised in the course of submissions made on both sides, the Court saw fit to reserve judgment until today's date.

The evidential basis for the application

5 The evidential basis for the application comprises the averments contained in an affidavit sworn by the respondent on the 27th of October, 2010, and material exhibited therewith; as well as the contents of an affidavit sworn on the respondent's behalf by his solicitor, Cahir O'Higgins, on the 18 ^th of May, 2011, exhibiting medical reports and correspondence relating to the respondent's daughter, N.

6 The relevant portion of the respondent's own affidavit is contained in paragraphs 3 to 8 respectively, where he stated:-

7 2 "3. I … am a citizen of Poland. I was sentenced by the District Court … on 18th (sic) October, 2005, to a term of imprisonment of two years and six months for two offences which were committed on 4th February, 2001. The sentence was postponed on that date and on 6th December, 2005, and then on the 29th June, 2006, by the District Court …, until the 29th December, 2006, because of my daughter N.'s health problems.

8 4. N. was born on the 2nd of January, 2004. She had very serious heart complications and was kept in hospital and then transferred to a children's hospital ....

9 5. In 2006 I desperately needed to earn money to provide from my daughter and my wife, R. N. was in hospital …, and my wife had to pay for travel, accommodation and medication expenses. I left Poland on 8th September, 2006, and came to Ireland in order to see if I could find work. I did find work and I sent money back to N. and my wife. I worked as a steel fixer for a company manufacturing concrete walls …, from September to November, 2006. From January, 2007, I worked for five months delivering leaflets and flyers for an advertising business all over the country. From May to December, 2007, I worked for a road construction company .... From January, 2008, to the present I have worked … as a butcher … although I am currently on sick leave because of my mental health. My wife and daughter joined me in Ireland on 20th September, 2008.

10 6. N. has several medical conditions, including a heart condition. She has regular checkups .... She is due for an appointment there in April, 2011. She has learning difficulties, and requires special education provision. She becomes 'hyper-emotional' and is very attached to me and she would be devastated if I am separated from her. She needs an operation on her left eye, which will be carried out in (Ireland), and she has a problem with her leg, and requires special shoes. Doctors in Ireland have commented that this condition was not being properly treated in Poland.

11 7. I and my family have no home to return to in Poland. I regard it as a crisis for my family if they have to return to Poland because I have to serve my prison sentence. We have no house in Poland. My mother is deceased and I have no contact with my father. My wife's father is deceased and her mother is in her sixties and frail and unable to offer help to us. She is from northern Poland … a very poor village (there). I believe that if my daughter lived there and needed emergency treatment she would be unable to obtain it speedily. I believe that the standard of medical treatment, and education, is better for N. in Ireland than in Poland. My wife and I have a younger daughter, L., who was born on 6th July, 2009, in (Ireland) and we want to bring up our children here.

12 8. I am suffering from depression, and am currently on sick leave from work and on medication. My doctor arranged for me to see a psychiatrist. I beg to refer to a copy of his medical report upon which marked with 'A' I have endorsed my name prior to the swearing hereof."

13 The medical report exhibited with the affidavit is from the respondent's...