Minister for Justice and Equality v Zielinski

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 08 May 2017
• Neutral Citation: [2017] IEHC 419
• Docket Number: Record No. 2017/66 EXT
• Court: High Court
• Date: 08 May 2017

[2017] IEHC 419

THE HIGH COURT

Donnelly J.

Record No. 2017/66 EXT

BETWEEN:-

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MACIEJ ZIELINSKI

RESPONDENT

International law – Extradition – European Arrest Warrant Act 2003 – Execution of European Arrest Warrant ('EAW') – Art. 8 of European Convention on Human Rights ('ECHR') – 2002 Framework Decision – S. 49 of the Children Act, 2001

Facts: The requesting State sought the surrender of the respondent for serving two separate sentences, which were imposed upon him in relation to 99 separate offences. The respondent claimed that his surrender was prohibited under s. 43 of the European Arrest Warrant Act 2003 as he was a juvenile at the time of commission of 97 offences. The respondent also argued that his rights under art. 8 of ECHR would be breached. The respondent also argued that the present EAW represented an abuse of process of law as the respondent had been subjected to the deprivation of liberty previously twice in relation to the same EAW.

Ms. Justice Donnelly made an order for the surrender of the respondent. The Court held that the EAW did not mention that the respondent had been admitted into any juvenile diversion programme and hence, the respondent's contention that he was a juvenile could not be accepted. The Court noted that the respondent knew about his trial and he was representated by a lawyer of his own choice. The Court held that since the respondent was a repeat offender, there was no need to consider his rights under art. 8 of ECHR. The Court held that public interest required that persons like the respondent should be extradited to serve the imposed sentence. The Court held that the deprivation of liberty on previous two accounts in relation to the earlier EAWs were not an abuse of the process of law as the respondent was granted bail in a very short span of time. The Court held that the present EAW was a fresh and corrected EAW as the earlier EAWs were withdrawn by the issuing judicial authority.

JUDGMENT of Ms. Justice Donnelly delivered this 8th day of May, 2017.

1 This is the third set of proceedings launched before the High Court in which the surrender of this respondent to Poland has been sought pursuant to a European arrest warrant ('EAW') to serve two sentences covering a total of 99 offences. The question of whether this third set of proceedings is truly based upon a fresh EAW, or is in fact based upon the same EAW that was withdrawn during the course of earlier proceedings, is the major issue in this case. The respondent claims it would be an abuse of process to permit his surrender in the circumstances. For ease of reference, the Court will refer to the EAWs that have been endorsed as 'the first EAW', 'the second EAW' and 'the present EAW' respectively.

2 The respondent also argued other points of objection; under s. 45 of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003') relating to trial in absentia), under Article 8 of the European Convention on Human Rights ('ECHR') relating to the right to respect for private and family life, and under s. 43 of the Act of 2003 relating to his age at the time of the offences and the provisions of the Children Act, 2001.

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

3 The surrender provisions of the Act of 2003 apply to those member states of the European Union 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 (2002/584/JHA) 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.

Identity

4 I am satisfied on the basis of the evidence given by Sgt. James Kirwan, member of An Garda Síochána at the arrest hearing, the affidavit of the respondent, and the details set out in the present EAW, that the respondent, Maciej Zielinski, who appears before me, is the person in respect of whom the present EAW has issued.

Endorsement

5 Subject to further consideration of the validity of the present EAW, I am satisfied that the present EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Sections 21A, 22, 23 and 24 of the Act of 2003

6 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the respondent's surrender under the above provisions of the Act of 2003.

Part 3 of the Act of 2003

7 Subject to further consideration of s. 37, s. 38, s .43 and s. 45 of the Act of 2003, as amended, and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

The Provisions of Section 38 of the Act of 2003

8 The surrender of the respondent is sought for the purpose of serving two separate sentences which were imposed upon him in respect of 99 separate offences.

The Court commends both parties for the spirit of cooperation shown in the proceedings which resulted in the production of a chart of proposed corresponding offences. The Court will deal with the shorter sentence first and then the longer sentence.

9 By a judgment of the Regional Court in Bydgoszcz dated 3rd March, 2009 (file reference number III K 538/08), the respondent was sentenced to 1 year and 6 months deprivation of liberty. This was imposed in respect of 2 offences. The Court is satisfied, having read the present EAW and other information, that the acts for which he was convicted correspond to the offences proposed by the minister as corresponding offences in this jurisdiction, namely criminal damage contrary to s. 2 of the Criminal Damage Act, 1991 and theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

10 The provisions of minimum gravity have also been met and the Court is satisfied that in respect of this first sentence, the provisions of s. 38 of the Act of 2003 do not prohibit the respondent's surrender in respect of these two offences.

11 In relation to the second sentence for which he is sought, this is given its Polish file reference III K 129/04. This is stated to be a sentence of 5 years and 4 months deprivation of liberty. In the first EAW, it is recorded that he has 5 years and 28 days of deprivation of liberty to serve. In the second EAW, it is stated that he has 9 years and 28 days of deprivation of liberty to serve, but the issuing judicial authority sent additional information correcting the position. A signed statement from the translator pointing out that instead of saying that the penalty was 9 months, the translator had written 9 years. In the present EAW, the remaining sentence to be served is stated to be 9 months and 28 days.

12 The respondent raised a point of objection based upon s. 41 of the Act of 2003 (on the basis of double jeopardy). Apparently, this point was made on the basis that the respondent faced a 9 year sentence when he had previously been sentenced to a sentence of 5 years and 4 months. The Court is satisfied that this point of objection has no validity in the circumstances as explained in the previous paragraph and notes that this point was not pursued by the respondent in the present proceedings.

13 The first and second EAWs stated that file reference number III K 129/04 was a cumulative judgment of the Regional Court in Bydgoszcz dated 28th May, 2012 in which the respondent received a total of 5 years and 4 months of deprivation of liberty. It was clarified in the second proceedings following a request for further information by the Court, that the date of the sentence as recorded in the second EAW (and the first EAW) was an error. The date of the sentence should read that it was imposed on 5th April, 2004. It was stated that this was due to a clerical error in Poland which is to be corrected. In due course, that error was corrected and the present EAW was sent over to this Court for execution. This issue will be dealt with further below.

14 The sentence of 5 years and 4 months, file reference number III K 129/04, was a cumulative judgment arising out of sentences imposed in respect of offences on three separate occasions:

a) The first judgment is file reference number III K 496/01 and covered 37 offences. In relation to each of these offences, the Court is satisfied, having scrutinised the papers, that the acts for which the respondent was convicted correspond to the offences proposed by the minister as corresponding offences on the list put before the Court. These are various offences corresponding with burglary, theft and criminal damage.

b) The second judgment is file reference number III K 1755/00 and this covered a further 22 offences. The Court is also satisfied that the acts the respondent committed would, if committed in this jurisdiction, correspond to the offences proposed by the minister. These are various offences corresponding with burglary, theft and criminal damage.

c) The third judgment is file reference number III K 1866/01 and it covers a further 38 sentences. The Court is also satisfied that the acts the respondent committed would, if committed in this jurisdiction, correspond to the offences proposed by the minister. These are various offences corresponding with burglary, theft and criminal damage or attempts at these offences.

d) The requirements of minimum gravity have been met in respect of each of the above 97 offences.

15 Therefore, the terms of s. 38 of the Act of 2003 have been satisfied with respect to this second sentence of 5 years and 4 months covering the 97 offences...