Minister for Justice and Equality v Rydzewski
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] IEHC 768 |
| Docket Number | [RECORD NO. 2016 46 EXT] |
| Court | High Court |
| Date | 20 December 2018 |
[2018] IEHC 768
[RECORD NO. 2016 46 EXT]
THE HIGH COURT
European arrest warrant – Surrender – Statute of limitations – Applicant seeking the surrender of the respondent pursuant to a European arrest warrant to serve a sentence of imprisonment – Whether the sentence could be enforced
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court for the surrender of the respondent, Mr Rydzewski, to the Republic of Poland pursuant to a European Arrest Warrant dated 15th February, 2011 to serve a two year sentence of imprisonment imposed upon him on the 7th July 1997 in respect of an assault type offence. At the hearing, counsel for the respondent raised three core arguments; an issue with the description of offences which failed to expressly identify the defendant, a statute of limitations point and a personal rights claim under Article 8 European Convention on Human Right arising primarily from the delay issue from first receiving sentence to the execution of the warrant.
Held by Donnelly J that, having considered but rejected all the respondent’s points of objection, she was satisfied that there was no reason to prohibit the surrender of the respondent to the issuing state under the European Arrest Warrant.
Donnelly J held that she would make an order for the surrender of the respondent to such person as was duly authorised by the Republic of Poland to receive him.
Application granted.
This is an application for the surrender of the respondent to the Republic of Poland (‘Poland’) pursuant to a European Arrest Warrant (‘EAW’) dated 15th February, 2011 to serve a two year sentence of imprisonment imposed upon him on the 7th July 1997. This sentence was initially suspended a hearing on the 21st December, 2000 but was reactivated on the 15th November, 2001. The sentence was imposed in respect of an assault type offence.
At the hearing, counsel for the respondent raised three core arguments; an issue with the description of offences which failed to expressly identify the defendant, a statute of limitations point and a personal rights claim under Article 8 European Convention on Human Right arising primarily from the delay issue from first receiving sentence to the execution of the warrant.
Before dealing with those matters, I will deal with the uncontested issues:
I am satisfied that the Minister for Foreign Affairs has designated the Republic of Poland as a Member State for the purposes of the European Arrest Warrant Act of 2003, as amended (‘The Act of 2003’).
Under the provisions of s. 16 (1) of the Act of 2003 as amended, the High Court may make an order directing that the person be surrendered to the issuing state provided that:
a) the High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,
b) the EAW has been endorsed in accordance with s. 13 for execution,
c) the EAW states, where appropriate, the matters required by s. 45,
d) The High Court is not required, under ss. 21A, 22, 23 or 24 of the Act of 2003 as amended, to refuse surrender,
e) The surrender is not prohibited by Part 3 of the Act of 2003.
I am satisfied on the basis of the evidence of Garda Malachy Dunne, member of An Garda Síochána, and the details set out in the EAW, that the respondent, Piotr Edward Rydzewski, who appears before me, is the person in respect of whom the EAW has issued.
I am satisfied that the EAW has been endorsed in accordance with s. 13 for execution in this jurisdiction.
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.
Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003 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.
Section 38 of the Act of 2003 provides for two situations in which surrender may be ordered for specific offences. If the offence is an offence set out in para. 2 Article 2 of the 2002 Framework Decision then, provided the requirements of minimum gravity in terms of available sentencing powers have been met, there is no requirement to find correspondence for the offence for which the person is requested with an offence in this jurisdiction. If the offence does not come within that list, correspondence and a different requirement of minimum gravity must be shown. Section 5 of the Act of 2003 states that for the purposes of the Act, an offence specified in an EAW corresponds to an offence under the law of the State ‘where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the EAW is issued, constitute an offence under the law of the State’.
The issuing judicial authority has not opted for the box ticked offence and has given a full description of the offences in E2. Correspondence must be demonstrated. The factual description of the offence is as follows:
‘On 2nd April 1997, in Kradnik, lubelskie voivodship, acting in complicity, in public, with no reason, showing crass ignorance of the rules of public order, they took part in a battery of Mariusz Wojcicszyn, by beating him with their hands and kicking his head and all over his body, and putting him at direct danger of serious health disorder. As the result of the battery he suffered from the following body injuries: breaking a Ist right tooth of the upper jaw, breaking a Ist left tooth of the upper jaw, breaking a IInd left upper, tooth, a left and right eye bruises, contused wound of the lower and upper lip, and numerous bruises of both shoulder-blade area and of lumbar area, and consequently violation of functioning of body organs for the period exceeding 7 days.’
The above description makes clear that the offence being described is one of assault. This is an offence contrary to s. 2 of the Non-Fatal Offences Against the Person, Act, 1997 and s. 3 of the said Act (assault causing harm). Given the information provided it is also arguably the case that this is an offence of recklessly or intentionally causing serious harm contrary to s. 4 of the said Act, but I do not have to determine that issue.
The central issue raised by the respondent that the description given was not specific enough to comply with the requirements of s. 11 (1A)(f) of the Act of 2003 as amended. Counsel submitted that the particulars did not name the respondent or did not name others he was in complicity with.
The fact that the details in Part E of the EAW do not expressly name the respondent is of no consequence. It is clear that the EAW applies to him. It is clear that he is being sought for the sentence that was imposed upon him. It is also clear that the contents of Part E relate to him and his participation. It is not necessary to name those with whom he acted in complicity. That would be a matter for trial or indeed it may not even be possible to identify those who took part. What is clear from the details is that he was not acting alone in this offence but was acting in complicity with others. That is an indication of the degree of his involvement. It is also clear that the degree of involvement is set out by the statement that ‘they’ were involved in the battery. This was a joint assault in which he was a participant.
The rationale behind the requirement to require particulars of the offending behaviour has been identified in a number of cases by the Supreme Court and the High Court. It is so that the High Court, as executing judicial authority has enough information to carry out its functions. It is also required because the requested person is entitled to know why he has been arrested and also to be able to challenge his surrender. The information available is sufficient to satisfy all those criteria.
I am satisfied that there is correspondence. The sentence imposed is in excess of that required under the minimum gravity provisions. Therefore, his surrender is not prohibited by s. 38 of the Act of 2003.
The EAW contains an old form part D. The issuing judicial authority stated that part D was ‘not applicable’. That is usually an indication that he was present at his trial. Quite correctly however, the central authority sought information in accordance with the new type of part D required pursuant to the amendment of the 2002 Framework Decision on the execution of European arrest warrants but the 2009 Framework Decision. The additional information provided by the issuing judicial authority on foot of a request by the central authority, indicated ‘Yes, the person appeared in person at the trial resulting in the decision.’
The respondent raised a point that he was not present when the sentence was reactivated and he also submitted that there was some confusion in the EAW as to why the sentence was reactivated. Counsel for the respondent argued that this confusion was based on the fact that two conflicting reasons were given for the reactivation, namely that the respondent failed to pay a fine; the commission of a subsequent offence. The respondent swore an affidavit in which he exhibited copies of two judgments from Poland which he says demonstrates this contradiction. He engaged a lawyer in Poland to seek to overturn this EAW but that application has been unsuccessful.
He exhibited a decision of a Local Court in...
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