Minister for Justice and Equality v Sliwa

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 04 May 2016
• Neutral Citation: [2016] IECA 130
• Docket Number: No. 2016, 194
• Court: Court of Appeal (Ireland)
• Date: 04 May 2016

[2016] IECA 130

THE COURT OF APPEAL

Hogan J.

No. 2016, 194

Finlay Geoghegan J.

Peart J.

Hogan J.

BETWEEN/

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

JAROSLAW SLIWA

RESPONDENT

Extradition ? European arrest warrants ? Rule of specialty ? Applicant seeking to grant consent to the petitions of Poland for criminal proceedings in respect of five criminal complaints against the respondent ? Whether the High Court was entitled to give its consent to the Polish authorities pursuant to s. 22(7) of the European Arrest Warrant Act 2003

Facts: The High Court, on 6th October, 2014, ordered the surrender of the respondent, Mr Sliwa, in respect of four separate European arrest warrants (EAWs) to the Republic of Poland. Two of those EAWs related to offences for which he was sought for prosecution. The other two EAWs were for the purpose of serving two separate sentences of six months in prison. Since his surrender to Poland, the High Court received seven separate requests pursuant to s. 22 of the European Arrest Warrant Act 2003 emanating from judicial authorities in Poland seeking permission either to prosecute him for offences pre?dating his surrender, or, in two cases, either to impose a sentence following a criminal conviction or to execute a sentence which has already been imposed since his surrender for such offences. On 11th April, 2016, the High Court (Donnelly J) granted consent to the petitions of Poland for criminal proceedings in respect of five named criminal complaints against the respondent, pursuant to s. 22(7). The respondent appealed to the Court of Appeal against that decision. The essential objection was that the High Court should have declined to make an order under s. 22(7) by reason of the fact that, viewed by reference to the circumstances, it had been shown that Polish law and practice did not comply with the requirements of s. 22(2) and that this was a factor which ought to have been taken into account when considering whether to make an order under s. 22(7). It was thus contended that if the High Court was considering whether to make a surrender order in respect of Mr. Sliwa under s. 22(2), it could not do so because Polish law did not provide that a person who was surrendered to it pursuant to a European arrest warrant ?shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order? (s. 22(2)(a)) and because s.22(2)(b) makes it clear that no such order will be made where the requesting state has already ?proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.? As Poland had already ?proceeded against? Mr Sliwa in respect of other offences to the point of sentence, the argument advanced by the respondent was that the High Court would then be precluded from making the surrender order by reason of those provisions of s. 22(2), so that by extension the Court should likewise decline to make an order under s. 22(7).

Held by Hogan J that there is no basis as a matter of statutory interpretation in seeking to apply the special rules in s. 22(2) applicable to one situation (i.e., the person awaiting surrender) to another (i.e.,?the person who has already been surrendered). Hogan J held that it was unnecessary to consider the circumstances in which the High Court might be justified in refusing to make an order under s. 22(7) independently of s. 22(8). Hogan J held that there could, in principle, be no objection to the making of such an order by the High Court in the circumstances of the present case, since by the very act of making this request the Polish authorities had fully ? and properly ? respected the rule of specialty as contained in the 2003 Act and there was no contention that there had been any breach of the corresponding provisions of Article 27 of the Framework Decision so far as these complaints or petitions were concerned.

Hogan J held that the High Court was entitled to give its consent to the Polish authorities to the five petitions in respect of criminal prosecutions against Mr Sliwa pursuant to s. 22(7) of the 2003 Act. The Court accordingly dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court of Mr. Justice Gerard Hogan delivered on the 4th day of May 2016

1 This is an appeal taken by the respondent, Mr. Sliwa, against the decision of the High Court (Donnelly J.) delivered on 11th April 2016 whereby she granted consent to petitions of the Republic of Poland for criminal proceedings in respect of five named criminal complaints against him, pursuant to s. 22(7) of the European Arrest Warrant Act 2003 (?the 2003 Act?) (as amended): see Minister for Justice and Equality v. Sliwa [2016] IEHC 185. As will shortly be seen, this appeal presents a net point of interpretation concerning the rule of specialty in the context of s. 22 of the 2003 Act.

2 The background to this appeal is as follows: on 6th October, 2014, the High Court ordered the surrender of Mr. Sliwa in respect of four separate European arrest warrants (?EAWs?) to Poland. Two of those EAWs related to offences for which he was sought for prosecution, the other two EAWs were for the purpose of serving two separate sentences of six months in prison. Since his surrender to Poland, the High Court has received seven separate requests pursuant to s.22 of the 2003 Act emanating from judicial authorities in Poland seeking permission either to prosecute him for offences pre-dating his surrender, or, in two cases, either to impose a sentence following a criminal conviction or to execute a sentence which has already been imposed since his surrender for such offences.

3 The decision of Donnelly J. relates to five of the seven criminal complaints (or, to use the terminology employed by the Polish legal system, ?petitions?): petitions 1, 2, 3, 5 and 6.

4 It is also important to stress that it emerged during the course of the hearing before this Court that the five requests from the Polish authorities under consideration in this appeal (i.e., petitions 1, 2, 3, 5 and 6) all concern applications which come within s. 22(7)(a) of the 2003 Act whereby the consent of the High Court to criminal prosecutions in Poland has been sought. The alleged offences consist of what we would understand to be fraud offences or offences relating to obtaining money through false pretences.

5 The situation in respect of petitions 4 and 7 is (or, at least, pending further clarification, may be) different in that it appears that the authorities in those cases have proceeded before the Polish courts in these two cases. It is, however, agreed that the steps take to date do not infringe Article 27 of the Framework Decision as construed by the Court of Justice in Case C-388/08 Leymann [2008] E.C.R. I-8983. As these matters are not before this Court, we refrain from exercising any view in respect of these two petitions.

The rule of specialty

6 The necessity to obtain the permission of the High Court pursuant to s. 22 of the 2003 Act reflects the rule of specialty contained in Article 27 of the Council Framework Decision 2002/584/JHA on the European Arrest Warrant (2002)(O.J. 2000 L 190). The rule of specialty is one of long standing in the sphere of the extradition or surrender of offenders from one State to another. Earlier versions of the rule can be found in important international extradition agreements: see, e.g., Article 14 of the European Convention on Extradition 1957.

7 The rule itself seeks to give effect to the principle of full faith and mutuality inherent in the international extradition process by ensuring that if an offender is surrendered in respect of charge A, he cannot then be proceeded against within...