Minister for Justice and Others v Juszynski
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] IEHC 329 |
| Court | High Court |
| Date | 28 July 2011 |
[2011] IEHC 329
THE HIGH COURT
And
EUROPEAN ARREST WARRANT ACT 2003 S13
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN ARREST WARRANT ACT 2003 PART III
EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)
EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)
EUROPEAN ARREST WARRANT ACT 2003 S45
EUROPEAN ARREST WARRANT ACT 2003 S21A
EUROPEAN ARREST WARRANT ACT 2003 S22
EUROPEAN ARREST WARRANT ACT 2003 S23
EUROPEAN ARREST WARRANT ACT 2003 S24
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S81
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S82
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)
MIN FOR JUSTICE v FERENCA 2008 4 IR 480 2009 1 ILRM 291 2008/40/8765 2008 IESC 52
EUROPEAN ARREST WARRANT ACT 2003 S3(1)
EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 ART 2
CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 79
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
HEALY, STATE v DONOGHUE & ORS 1976 IR 325
CAHILL v JUDGE REILLY & DPP 1994 3 IR 547 1992/5/1572
O'NEILL v BUTLER 1979 ILRM 243
QUARANTA v SWITZERLAND UNREP ECHR 24.5.1991 (APPLICATION NO 12744/87)
SHULEPOV v RUSSIA UNREP ECHR 26.6.2008 (APPLICATION NO 15435/03)
PLONKA v POLAND UNREP ECHR 31.3.2009 (APPLICATION NO 20310/02)
MIN FOR JUSTICE v BRENNAN 2007 3 IR 732 2007/40/8282 2007 IESC 21
MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30
MIN FOR JUSTICE v SLIWA UNREP EDWARDS 6.7.2011 2011/37/10496 2011 IEHC 271
EUROPEAN ARREST WARRANT ACT 2003 S37
EXTRADITION LAW
European arrest warrant
Legal representation - Legal aid - Due process - Severity of potential sentence - Evidential gaps - Presumption that Polish authorities acted in accordance with Convention - Mutual recognition of judicial systems - Mutual trust of legal systems - Whether informed of right to legal representation - Whether informed of right to legal aid - Whether fundamental defect in Polish system of criminal - Whether sufficient evidence showing denial of rights - Whether respondent discharged evidential burden - Whether Polish legal system required to comply with precise exigencies of Irish Constitution - MJELR v Ferenca [2008] IESC 52, [2008] 4 IR 480; Cahill v Reilly [1994] 3 IR 547; Quaranta v Switzerland [1991] ECHR 33; Shulepov v Russia [2008] ECHR 559; Vacher v France [1996] ECHR 67; Twalib v Greece [1998] ECHR 54; Granger v United Kingdom [1990] ECHR 6; Maxwell v United Kingdom [1994] ECHR 38; Talet Tuno v Turkey (Application no 32432/96); Sejdovic v Italy [2006] ECHR 181; Marcello Viola v Italy (Application no 45106/04); Golubev v Russia (Application no 26260/02) ; Plonka v Poland [2009] ECHR 2277; Brennan v United Kingdom [2001] ECHR 596; Imbrioscia v Switzerland [1993] ECHR 56; John Murray v United Kingdom [1996] ECHR 3; Poitrimol v France [1993] ECHR 54; Demebukov v Bulgaria [2008] ECHR 180; Salduz v Turkey [2008] ECHR 1542; Kwiatkowska v Italy (Application no 52868/99); MJELR v Brennan [2007] IESC 21, [2007] 3 IR 732; MJELR v Stapleton [2007] IESC 30, [2008] 1 IR 669 and MJELR v Sliwa [2011] IEHC 271, (Unrep, Edwards J, 6/7/2011) considered - European Arrest Warrant Act 2003 (No 45), ss 13, 16 and 37 -European Convention on Human Rights, art 6 - Framework decision, art 2 - Respondent surrendered (2010/203 & 204EXT - Edwards J - 28/7/2011) [2011] IEHC 329
Minister for Justice and Equality v Juszunski
JUDGMENT of Mr Justice Edwards delivered on the 28th day of July 2011
The respondent was initially the subject of two European Arrest Warrants issued by the Republic of Poland on the 27 th of November, 2009 and the 15th of March 2010, respectively. The warrant of the 27 th of November, 2009 has recently been withdrawn and so the court is now concerned only with the warrant of the 15th of March 2010. This warrant was endorsed by the High Court on the 19 th of May 2010 for execution in this jurisdiction. The respondent was arrested by Sgt James Kirwan at 29 Alderwood Green, Tallaght, Dublin 24 at 11.20 am on the 14th of December 2010 and later on the same day was brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003").
The respondent does not consent to his surrender to the Republic of Poland. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s.16 aforesaid.
The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 of the Act of 2003 are satisfied. As no admissions have been made, the Court is put on inquiry as to whether the requirements of that section, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied. In so far as specific points of objection are concerned, the Court is required to consider a single specific objection to the respondent's surrender, namely that his surrender is prohibited by Part 3 of the Act of 2003, and specifically by s. 37(1)(a) and/or (b) thereof, in circumstances where he was tried, convicted and sentenced for the offences the subject matter of the warrant allegedly without being legally represented and without having been afforded an opportunity of being legally represented.
The Court has before it an affidavit of Sgt James Kirwan sworn on the 29th of June, 2011 and has also received and scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest Warrant which is on the Court's file and notes that it bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:
(a) the person before it is the person in respect of whom the relevant European Arrest Warrant was issued;
(b) the European Arrest Warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;
(c) the European Arrest Warrant is in the correct form;
(d) the respondent was not tried in absentia and in the circumstances no undertaking pursuant to s. 45 of the Act of 2003 is required;
(e) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 to refuse to surrender the respondent.
Moreover, the warrant is a conviction type warrant and the respondent is wanted in the Republic of Poland to serve a sentence of 2 years and 6 months imposed upon him following his conviction by the District Court of Katowice of three fraud type offences (covering some 27 separate instances particularised in the warrant.) The issuing judicial authority has sought to invoke paragraph 2 of article 2 of the Framework Decision in respect of all of the offences particularised in the warrant by ticking the box relating to "fraud" in Part E.I of the warrant and leaving Part E.II thereof blank. There is no specific statement in Part C. 1 of the warrant to indicate the potential maximum sentence that might have been imposed upon the respondent, and indeed the words "not applicable" have been entered in Part C. 1. Despite this it has been urged upon the Court by counsel for the applicant, Ms Emily Farrell B.L., that the Court can be satisfied that the minimum gravity requirements for the valid invocation of paragraph 2 of article 2 of the Framework Decision are satisfied in circumstances where a box is ticked in Part E.I., and no specific objection has been raised by the respondent suggesting that minimum gravity requirements are not satisfied. Ms Farrell relies upon Minister for Justice Equality and Law Reform vFerenca [2008] 4 I.R. 480 in support of her submission, and I am disposed to accept her submission as being correct. In the circumstances the Court is satisfied that paragraph 2 of article 2 of the Framework Decision has been validly invoked and, accordingly, that correspondence does not need to be established.
In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) (No 3) Order 2004, S.I. 206/2004 (hereinafter referred to as "the 2004 Designation Order"), and duly notes that by a combination of s 3(1) of the 2003 Act, and article 2 of, and the Schedule to, the 2004 Designation Order, "Poland" (or more correctly the Republic of Poland) is designated for the purposes of the 2003 Act as being a state that has under its national law given effect to the Framework Decision.
The respondent has filed an affidavit sworn by him on the 14th of April, 2011. The said affidavit contains the following averments as to matters of fact at paragraphs 4 to 9 inclusive:
2 "4. 1 say that, as set out in the European arrest warrant issued in Poland on the 15th day of March 2010, I was sentenced to be two and a half year term of imprisonment in the issuing state on the 6th day of October 2004.
5. I say that I was initially questioned about these allegations at two separate...
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