Minister for Justice and Equality v Ludwin
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 23 April 2018 |
| Neutral Citation | [2018] IEHC 220 |
| Docket Number | [RECORD NO. 2014 125 EXT] |
| Court | High Court |
| Date | 23 April 2018 |
[2018] IEHC 220
[RECORD NO. 2014 125 EXT]
THE HIGH COURT
Extradition – S. 45 of the European Arrest Warrant Act 2003 – Art.8 of European Convention on Human Rights – Art. 2(2) of the 2002 Framework Decision – Trial in absentia – Rule of law
Facts: The requesting state Poland sought the surrender of the respondent on foot of the execution of a single European Arrest Warrant (‘EAW’) for the purpose of serving sentences arising out of his conviction for five separate offences. The respondent claimed that his surrender was prohibited under s. 45 of the EAW Act, 2003 as his trial was conducted in his absence. The respondent also claimed that his surrender would infringe on his personal and family rights provided under art. 8 of the European Convention on Human Rights (‘ECHR’). The respondent raised a point regarding the rule of law in Poland to the effect that there was a real risk that he could be required to serve a greater period of imprisonment than to what he had been sentenced. The respondent's contention concerning breach of fair trial rights had already been referred to by the High Court to the Court of Justice of the European Union (‘CJEU’) in the case of Minister for Justice and Equality v. Celmer [2018] IEHC 119, which was pending determination.
Ms. Justice Donnelly adjourned the matter. The Court held that it was appropriate to await the decision of the CJEU in the Celmer case keeping in mind the issue of impact of a finding of a breach of the common value of the rule of law on the surrender procedures that the respondent had raised in the present proceedings. The Court held that it would proceed with its request to seek further information under s. 20 of the Act of 2003 in relation to the presence or absence or knowledge of the respondent at the hearing of the cumulative judgment. The Court further held that the respondent was notified of the date and time of his trial and he was represented by his counsellor, and thus, there was compliance with s. 45 of the Act of 2003. The Court rejected the respondent's contentions under art. 8 of the ECHR as the respondent was a recidivist and the offences committed by him were violent in nature.
The surrender of the respondent is sought by the Republic of Poland (‘Poland’) in respect of a single European Arrest Warrant (‘EAW’) dated 30th September 2013 for the purpose of serving sentences arising out of his conviction on five separate offences. This is a case which had been adjourned pending the decision in Minister for Justice v. Lipinski [2017] IESC 26 on revocation of suspended sentences and whether the absence of a defendant during the enforcement proceedings prohibited surrender. That issue has now been determined by the Supreme Court following on from the decision of the Court of Justice of the European Union (‘CJEU’) in the case of Openbaar Ministerie v. Ardic ( Case C-571/17).
The respondent conceded that the issue regarding his presence at the revocation of his conditional release was finally determined against him, but submitted that his surrender was still prohibited as there was no compliance with the provisions of s. 45 of the European Arrest Warrant Act 2003, as amended (‘the Act of 2003’). Counsel on behalf of the respondent submitted that there was no clarity with respect to the position as regards his appearance at the appeals giving rise to these sentences. A further issue in respect of Article 8 European Convention on Human Rights ‘ECHR’ was also pursued.
Furthermore, counsel for the respondent raised a general point that the situation as regards the rule of law in Poland, which had given rise to the decision of this Court in the case of Minister for Justice and Equality v. Celmer [2018] IEHC 119, meant that there was a real risk that this man could be required to serve a greater period of imprisonment than that to which he had been sentenced. In particular, it was submitted that there could be no guarantee that Article 26 of the Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States 2002/584/JHA of 13 June 2002 (‘the 2002 Framework Decision’) would be complied with. Although that point was raised in a general fashion by counsel for the respondent, it was made in the context of the finding of this Court in the decision in Celmer. This issue will be addressed further below.
I am satisfied on the basis of the details set out in the EAW and the contents of the affidavit of Detective Garda O'Reilly that the person who appears before the court is the person in respect of whom the EAW has issued.
I am satisfied that the EAW has been indorsed for execution in this jurisdiction.
I am satisfied that I am not required to prohibit the surrender of the respondent under the provisions of the above sections. As regards s. 22, the High Court may only prohibit surrender if it is satisfied that the law does not provide for specialty and that the person will be 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. There is no evidence here that such an eventuality will happen. Similarly, with regard to s. 23 there is no evidence that this person will be surrendered to another member state without the consent of this Court. This also applies to the position under s.24 with regard to surrender to a third country.
I am satisfied that, subject to further considerations of s. 37, 38 and 45 of the Act of 2003, the Court is not required to prohibit the surrender of the respondent under any other section in part 3 of the Act of 2003.
The respondent is sought to serve three sentences in respect of a total of five offences. The issuing judicial authority has ticked the boxes marked ‘Forgery of documents and trafficking therein’ and ‘Swindling’ in part E of the warrant. This indicates an intention to avail of the opportunity to dispense with the requirement of double criminality and to rely on the fact that these offences come within the list of conduct set out in Article 2(2) of the 2002 Framework Decision. The offences each carry a maximum sentence of imprisonment of at least three years, and therefore, no issue with minimum gravity arises.
An issue the Court has to consider is whether the designation of some of the offences as coming within the list of offences set out at Article 2(2) of the 2002 Framework Decision can be relied upon in the particular circumstances of this case. Offences numbered 2 and 3 in the EAW present no difficulty. They refer to presenting forged documentation in order to obtain a financial benefit and thereby causing a limited liability company to disadvantageously use their property. It is evident that those offences could come within both the categories of forgery of documents and trafficking therein and also the category of the offence of swindling. Surrender is therefore not prohibited for those offences..
In respect of the first offence, the description of the circumstances of the offence as set out in part E of the EAW corresponds to the offence of burglary in this jurisdiction. It is stated that the respondent, with others, broke a windowpane in a kiosk, broke in and stole various items therein. It is not easy to see how such an offence is designated to be either swindling or forgery of documents. This is listed in the EAW as an offence of burglary in Poland. The experience of this Court is that EAWs from Poland do not list burglary as an offence to which Article 2(2) of the 2002 Framework Decision applies. The Court is familiar with the type of offences that are considered fraud or swindling within the Polish legal system, but offences of burglary or simple theft have not been indicated as coming within that box of swindling. Burglary itself is not one of the offences which come within Article 2(2) list of offences.
Furthermore, in respect of offences 4 and 5, these are noted on the EAW to be offences of beating/brawling or theft with violence in Poland. On the basis of the description of the offences set out in the EAW, they would correspond with offences of assault contrary to s. 2 or s. 3 of the Non-Fatal Offences Against the Person Act, 1997 and an offence of robbery or perhaps an assault followed thereafter by a theft, respectively. Neither theft, robbery per se or assault come within the concept of an Article 2(2) offence. Robbery is included in the list of offences if it is organised or armed robbery.
There is nothing on the facts set out in the EAW to show that this was necessarily organised or armed robbery. More importantly, an offence of organised or armed robbery is not ticked. Therefore, in respect of these three offences, there is a manifestly incorrect reliance on the Article 2(2) procedure. I am satisfied however that these offences correspond with offences in this jurisdiction as set out in the previous paragraphs.
I have considered whether it is permissible for this Court to rely upon the test for correspondence of offences where the High Court is of the opinion that the ticking of the box in reliance of Article 2(2) of the 2002 Framework Decision is manifestly incorrect. A number of decided cases have dealt with the situation where the issuing judicial authority has completed part E(I), indicating reliance on Article 2(2) of the 2002 Framework Decision, and part E(II), indicating non-reliance. Following on from the decision of Peart J in Minister v Paulauskas [2009] IEHC 32, the High Court has accepted that this is not a bar to...
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