Minister for Justice and Equality v I. S

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 12 January 2015
• Neutral Citation: [2015] IEHC 36
• Court: High Court
• Date: 12 January 2015

[2015] IEHC 36

THE HIGH COURT

[No. 400 EXT./2011]

Min for Justice v S (I)

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

- AND -

I. S.

RESPONDENT

European Arrest Warrant – Practice and Procedure – Bail - European Arrest Warrant Act 2003 – Human Rights – Mental Health Issues – Right to Respect for Family Life – Practice and Procedures – Public Interest

Facts: In this case the respondent was the subject of a European arrest warrant, on foot of which the Republic of Poland sought his surrender for the mixed purposes of prosecuting him in respect of one offence, and executing sentences of imprisonment in respect of a further four offences. The warrant was endorsed for execution in this jurisdiction on the 16th November, 2011, and it was duly executed on the 17th December, 2012. The respondent was arrested and brought before the High Court on the same day pursuant to s.13 of the European Arrest Warrant Act 2003. In the course of the s 13 hearing, a notional date was fixed for the purposes of s 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter, the matter was adjourned from time to time in connection with preparation of the case on both sides, ultimately coming before the Court for the purposes of a surrender hearing. The respondent did not consent to his surrender to Poland on the basis that his surrender would be: (1) incompatible with this State”s obligations under the European Convention on Human Rights 1950 and its protocols as he was in fragile mental health and was at high risk of self-harm or suicide; and (2) that any surrender would involve a disproportionate interference with his right to respect for family life. Accordingly, the Court was 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 was duly authorised by the issuing state to receive him.

Held by Justice Edwards in light of the available evidence and submissions presented that, he did not consider that the evidence adduced by the respondent established a systemic and fundamental deficiency or malpractice in the treatment of mentally ill prisoners in the requesting state, such as might cause the Court to conclude that, in the event of the respondent being surrendered, there was a real risk that his rights under Article 3 ECHR would be breached. Having received assurances that the respondent would receive appropriate care and support, it was determined by the Court that it did not have reasonable grounds for believing that there was a real risk that the respondent would not receive appropriate mental health care and support in the event of his surrender; or that he would be ill-treated, or subjected to inhuman or degrading conditions of detention, in breach of his rights under Article 3 ECHR. In the circumstances, the Court was not disposed to uphold the objection under s 37(1)(a) of the Act of 2003 to the extent that it was based on Article 3 ECHR. In respects of the Article 8 ECHR based objection, the Court reasoned that whilst it would be difficult for the respondent to be separated from his family, the evidence did not go far enough to suggest that he could not be adequately cared for in prison in Poland, and be effectively supported and protected, albeit in different, less familiar and less personal ways than those currently being employed by his family. In the circumstances the Court did not consider the proposed surrender to be a disproportionate measure, or that it would breach the respondent”s right to respect for his private and family life contrary to Article 8 ECHR. Consequently, the Court was disposed to make an order under s 16(1) of the Act of 2003, directing the surrender of the respondent to such person as was duly authorised by the issuing state to receive him.

1 JUDGMENT of Mr. Justice Edwards delivered on the 12th of January, 2015.

Introduction

2 The respondent is the subject of a European arrest warrant dated the 17 ^th January, 2011, on foot of which the Republic of Poland (hereinafter "Poland") seeks his surrender for the mixed purposes of prosecuting him in respect of one offence, and executing sentences of imprisonment in respect of a further four offences, particularised in Part (e) of the warrant. The warrant was endorsed for execution in this jurisdiction on the 16 ^th November, 2011, and it was duly executed on the 17 ^th December, 2012. The respondent was arrested by Sergeant Sean Fallon on that date, and he was brought before the High Court on the same day pursuant to s.13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s.13 hearing, a notional date was fixed for the purposes of s.16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter, the matter was adjourned from time to time in connection with preparation of the case on both sides, ultimately coming before the Court for the purposes of a surrender hearing.

3 The respondent does not consent to his surrender to 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.

Uncontroversial issues

4 The Court has received an affidavit of Sergeant Fallon sworn on the 29 ^th April, 2014 testifying as to his arrest of the respondent and as to the questions he asked of the respondent to establish the respondent's identity. When these are compared with the information in Part A of the warrant they can be seen to correspond. Moreover, the respondent acknowledged that a photograph attached to the warrant was of him. In addition, counsel for the respondent has confirmed that no issue arises either as to the arrest or as to identity.

5 The Court has also received and has scrutinised a true copy of the European arrest warrant in this case. Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.

6 I am satisfied following my consideration of these matters that:

7 (a) The European arrest warrant was endorsed for execution in this State in accordance with s.13 of the 2003 Act;

8 (b) The warrant was duly executed;

9 (c) The person who has been brought before the Court is the person in respect of whom the warrant was issued;

10 (d) The warrant is in the correct form;

11 (e) To the extent that the warrant is a prosecution type warrant, the respondent is wanted in Poland for the purposes of prosecuting him for three offences particularised at Part E.2.D. of the warrant;

12 (f) The underlying domestic decision on foot of which the warrant seeks the respondent for prosecution is a domestic warrant of arrest issued by the District Court of Pila;

13 (g) The nature and classification of the three offences for which the warrant seeks the respondent for prosecution is that they are offences contrary to article 310(2) of the Polish Penal Code in conjunction with article 91(1) of the Polish Penal Code and article 12 of the Polish Penal Code involving "introducing forged money into circulation - string of three offences";

14 (h) The issuing judicial authority has invoked para. 2 of article 2 of Council Framework Decision 2002/584/JHA of the 13 ^th June 2002 on the European arrest warrant and the surrender procedures between Member States, O J. L190/1 18.7.2002 (hereinafter referred to as "the Framework Decision") in respect of these three offences by the ticking of the box in Part (E) I of the warrant, relating to "counterfeiting currency, including that of the euro";

15 (i) To the extent that the European arrest warrant is a conviction type warrant, the warrant relates to seven offences, one of which is particularised at E.2.A.; another of which is particularised at E.2.B.; four of which are particularised at E.2.C., and one of which is particularised at E.2.E., respectively. The underlying domestic decisions on foot of which the warrant seeks the respondent for the purposes of executing sentences of imprisonment for these seven offences are three enforceable judgments of the District Court of Wagrowiec dated the 11 ^th March, 2004, the 7 ^th April, 2004, and the 10 ^th March, 2005, respectively, as well as a judgment of the District Court of Poznan dated the 30 ^th November, 2005;

16 (j) The nature and classification of the conviction offences covered by the warrant are as follows:

17 · The single offence particularised at paragraph E.2.A. is an offence contrary to articles 286(1), 270(1) and 297(1) of the Polish Penal Code, in conjunction with article 11(2) of the Polish Penal Code, involving "fraud, forgery of documents and defrauding credit";

18 · The single offence particularised at paragraph E.2.B. is an offence contrary to article 18(1), in conjunction with articles 286(1), 270(1) and 297(1), of the Polish Penal Code in conjunction with article 11(2) of the Polish Penal Code, involving "the commission of fraud, forgery of documents and defrauding credit";

19 · The four offences particularised at paragraph E.2.C. are offences contrary to article 286(1), in conjunction with articles 270(1) and 297(1) of the Polish Penal Code, and in further conjunction with article 11(2) of the Polish Penal Code; and offences contrary to article 13(1) in conjunction with articles 286(1), 270(1) and 297(1) of the Polish Penal Code, and in further conjunction with article 91(1) of the Polish Penal Code, and described as "fraud, forgery of documents and defrauding credit, attempted fraud, forgery of documents and defrauding credit -...