Minister for Justice and Others v Zielinski

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 10 February 2011
• Neutral Citation: [2011] IEHC 45
• Court: High Court
• Date: 10 February 2011

[2011] IEHC 45

THE HIGH COURT

Record No/383 EXT/2010

Min For Justice v Zielinski

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 (AS AMENDED), AND IN THE MATTER OF A BAIL APPLICATION

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

-AND-

ARTUR ZIELINSKI

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

PENAL CODE OF THE REPUBLIC OF POLAND ART 280.1

PENAL CODE OF THE REPUBLIC OF POLAND ART 226.1

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006/39/8296 2006 IESC 23

O'SULLIVAN v CHIEF EXECUTIVE OF THE IRISH PRISON SERVICE & ORS UNREP MCKECHNIE 25.5.2010 2010 IEHC 301

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

BAIL ACT 1997 S2

BAIL ACT 1997 S1

CONSTITUTION ART 40.4.6

AG, PEOPLE v GILLILAND 1985 IR 643 1986 ILRM 357 1985/7/1675

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

MIN FOR JUSTICE v OSTROVSKIJ UNREP PEART 20.12.2005 2005/38/7883 2005 IEHC 427

CONSTITUTION ART 40.4.1

DPP v CORBALLY 2001 1 IR 180 2001 2 ILRM 102 2000/7/2445

DPP v CONNAUGHTON UNREP CCA 17.12.1999 2000/18/7041

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 26

EXTRADITION

European arrest warrant

Bail - Jurisdiction to grant - Whether inherent jurisdiction - Application for surrender to serve balance of sentence - Criteria for convicted persons - Whether presumption in favour of bail - Whether real and significant risk of prisoner absconding - Restrictions and conditions attaching to grant of bail - People (DPP) v Corbally [2001] 1 IR 180 distinguished - People (AG) v Gilliland [1985] IR 643, People (AG) v O'Callaghan [1966] IR 501, Minister for Justice, Equality and Law Reform v Ostrovskij [2005] IEHC 427 (Unrep, Peart J, 20/12/2005) and People (DPP) v Connaughton (Unrep, CCA, 17/12/1999) considered - European Arrest Warrant Act 2003 (No 45), s 16 - Bail refused (2010/383EXT - Edwards J - 10/2/2011) [2011] IEHC 45

Minister for Justice, Equality and Law Reform v Zielinski

Facts The applicant was a Polish national and was the subject of an European arrest warrant issued by Poland. The applicant sought to be released on bail and the respondent objected to bail being granted. The applicant was sought in order for him to serve out the balance of sentences imposed in Poland. It was asserted that all of the applicant's close family resided here, the applicant had worked here and had no real ties to the Republic of Poland. The applicant was of limited means but that his parents were willing to stand as an independent surety for him. The applicant undertook to reside with his parents and to surrender his passport and/or his identity card. The respondent objected to bail on the basis that the applicant was perceived to represent a significant flight risk. The applicant was already in custody having been previously arrested in respect of other matters. The applicant had been convicted of various offences in Poland, had fled from Poland to Ireland and upon being arrested had given a false name.

Held Edwards J by in refusing the application for bail. Article 12 of the Framework Decision clearly envisaged the granting of bail in appropriate cases. The court had an inherent jurisdiction to grant bail in both extradition and rendition matters. The court was not dealing with a person charged with a serious offence. It was dealing with a convicted person facing rendition to serve a sentence already imposed. The rationale underpinning the effective presumption in favour of the granting of bail which was predicated upon the notions of liberty as a personal right and the presumption of innocence, would in most cases not exist in the case of a person already convicted. Article 12 of the Framework Decision required the High Court to undertake an assessment of the risk of the prisoner absconding to determine if there was a real and significant risk in that regard. There existed a real and significant risk that he might abscond if admitted to bail. The applicant had already absconded from the requesting State to avoid serving the sentences imposed upon him. The court had carefully considered whether a regime of restrictions/conditions could be put in place sufficient to allay concerns in that regard and had concluded that in the particular circumstances of this case it could not.

Reporter: R.F.

1 JUDGMENT of Mr Justice John Edwards delivered on the 10th day of February, 2011.

Introduction

2 The applicant is a Polish national and he is the subject of an European Arrest Warrant issued by the Republic of Poland on the 18 ^th of August 2009. That warrant was received in this jurisdiction on the 12 ^th of October 2009 and was endorsed for execution by the High Court on the 20 ^th of October 2010. The applicant was duly arrested on foot of this warrant on the 9 ^th of November 2010 and was then brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act, 2003 (as amended) (hereinafter "the 2003 Act") whereupon the Court, having fixed a date for the purposes of s.16 of the 2003 Act, remanded him in custody to Cloverhill Prison pending the s.16 hearing in the matter. The applicant now seeks to be released on bail pending that hearing, and the respondent has indicated that he has an objection to bail being granted.

The nature of the European Arrest Warrant in this case

3 The European Arrest Warrant in question is a conviction warrant on foot of which the applicant is sought for the purpose of having him serve out the balance of sentences imposed upon him by the District Court in Gdynia on the 17 ^th of February, 2006, the 5 ^th of May 2004 and the 24 ^th of February 2005, respectively, in respect of three offences contrary to Art 280.1 of the Polish Penal Code (these are robbery with violence type offences) and one offence of contrary to Art 226.1 of the Polish Penal Code (being the offence of insulting a police officer on duty). The balance of the sentences to be served may be particularised as follows:

4 (1) The applicant is required to serve 3 years in prison in respect of the first two robberies in time, both of which were perpetrated on the same day, namely the 8 ^th of December, 2004, and which it is understood were prosecuted together under case reference II K 168/05. This sentence was imposed on the 17 ^th of February, 2006.

5 (The warrant does not make clear whether, in respect of these crimes, the applicant received two three year sentences to run concurrently, or whether the three year sentence imposed related only to one offence with the other matter being taken into account. This can be clarified in due course by the seeking of additional information from the issuing judicial authority and it is not a matter which need concern the court in its consideration of this bail application.);

6 (2) The applicant is also required to serve 1 year, 10 months and 25 days in prison for a further robbery, which was perpetrated on the 28 ^th of June 2003. This sentence was imposed on the 5 ^th of May 2004, and the case was prosecuted under case reference II K 1460/03; and

7 (3) The applicant is also required to serve 10 months in prison for the offence of insulting a police officer on duty at Gdynia on the 12 ^th of September 2004. This sentence was imposed on the 24 ^th of February 2005 and was prosecuted under case reference II K 131/05.

The affidavit grounding the application

8 The grounding affidavit was sworn herein by the applicant's solicitor, a Ms Tracy Horan, who deposes that she is a partner in the firm of D'Arcy Horan, Solicitors, of Kingsbridge House, Parkgate St, Dublin 8. Strictly speaking the affidavit should have been sworn by the applicant personally, but the court will overlook the irregularity, and the hearsay nature of the evidence, having regard to the fact that English is not the applicant's first language and it may therefore have been logistically easier for the solicitor to swear the affidavit based on instructions received.

9 Ms Horan deposes, inter alia, to the fact that her client has not previously applied for bail in these proceedings. However, it is conceded that the applicant is the subject of domestic proceedings and that on the 18th of September 2010 he was granted bail by the High Court in those proceedings in terms requiring (a) a cash lodgement of €100 in respect of his own bond, and (b) a further cash lodgement of €400 by an independent surety. Ms Horan states that the applicant was not in a position to take up bail and that on the 27th of September 2010 he made an application to the High Court to have his bail reduced. The matter came on for hearing before Mr Justice Hanna on the 6th Of October 2010, and the application was refused.

10 Ms Horan further deposes that the applicant's father, Mireck Zielinski and mother, Mariola Zielinski, came to Ireland eight years ago. It is asserted that all of the applicant's close family reside here including his brother, his brother's partner and their son, his uncle and his five first cousins.

11 She further deposes that until early January 2010 the applicant had a job in a factory in Waterford and prior to that he had worked with Roadstone. She asserts that the applicant has no real ties to the Republic of Poland.

12 Ms Horan further deposes that the applicant is of limited means but that his father and/or mother are willing to stand as an independent surety for him. She states that if granted bail pending the determination of these extradition proceedings (the court's emphasis) the applicant will reside with his father and mother at 12 Clodack Road, Avandale Road, County Waterford and will comply with whatever conditions are ordained by this honourable Court. (This Court would remark that,...