Minister for Justice and Equality v Piotr Pawel Czajkowski

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 17 November 2014
• Neutral Citation: [2014] IEHC 649
• Court: High Court
• Date: 17 November 2014

Min for Justice v Czajkowski

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

PIOTR PAWEL CZAJKOWSKI

RESPONDENT

[2014] IEHC 649

[No. 264 EXT./2013]

THE HIGH COURT

Extradition – s. 11, s. 16, s. 21A(1), s. 21A(2) and s. 37 of the European Arrest Warrant Act 2003 – Constitutional Rights – ECHR – Family and Private Life

Facts: Poland issued a European Arrest Warrant for the respondent who objected to being surrendered to the issuing State. The court had to determine if the requirements of s. 16 of the European Arrest Warrant Act 2003 had been satisfied to decide whether or not any bar existed to prevent the respondent”s surrender. The respondent contended that s. 21A(1) of the 2003 Act prohibited his surrender because no decision had been taken to charge and try him with the alleged offences. The respondent had to rebut the presumption contained in Section 21A(2) that a decision had been made to have him charged and tried for the alleged offences. The applicant had not rebutted the presumption in s. 21A(2). There was sufficient evidence that a decision had been taken to charge the respondent. The court could only refuse to surrender the respondent if it was satisfied that no decision had been made. The court proceeded to deal with the respondent”s other objections. Firstly, that his surrender was contrary to s. 37 of the 2003 Act as it would effect his European Convention rights including his right to a private and family life. Secondly, that it would amount to a disproportionate interference with his constitutional and convention rights. Thirdly, that the delay between the alleged commission of the offences and the date set for his surrender breaches s. 37 of the 2003 Act.

Held by Murphy J: The court was satisfied that the surrender of the respondent was not disproportionate in the context of his Article 8 rights. The offences were serious and it was in the public interest to see the person responsible prosecuted. The delay that occurred did not outweigh the weight attached to the public interest in the respondent”s extradition. The impact on the respondent”s family life was only what would normally flow from the arrest, detention or surrender of a family member. The respondent”s daughter and stepdaughter were both adults and would have to adjust to changes in their circumstances. The respondent contended that the warrant failed to comply with s. 11 of the 2003 Act because there was confusion in relation to the nature and number of offences against him. The court disagreed and determined that the nature of the four offences for which the respondent”s return was sought was clearly set out in the warrant. The court determined that the s. 16 requirements had been met and no grounds existed to prohibit an order being made to surrender the respondent.

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S15

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN ARREST WARRANT ACT 2003 S38(1)

EUROPEAN ARREST WARRANT ACT 2003 S21A(1)

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

MIN FOR JUSTICE v OLSSON 2011 1 IR 384 2011 2 ILRM 2011/43/12423 395 2011 IESC 1

MIN FOR JUSTICE v BAILEY 2012 4 IR 1 2012/25/7268 2012 IESC 16

MIN FOR JUSTICE v JOCIENE UNREP EDWARDS 31.5.2013 2013/33/9905 2013 IEHC 290

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2013/33/9736 2013 IEHC 62

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN ARREST WARRANT ACT 2003 S37

MIN FOR JUSTICE v H (B) UNREP EDWARDS 25.9.2013 2013/32/9708 2013 IEHC 445

MIN FOR JUSTICE v E (T) UNREP EDWARDS 19.6.2013 2013/32/9460 2013 IEHC 323

MIN FOR JUSTICE v CIECKO UNREP EDWARDS 18.12.2013 (EX TEMPORE)

EUROPEAN ARREST WARRANT ACT 2003 S11

MIN FOR JUSTICE v CONNOLLY UNREP SUPREME 1.5.2014 2014 IESC 34

MIN FOR JUSTICE v STAFFORD UNREP SUPREME 17.12.2009 2009/39/9807 2009 IESC 83

MIN FOR JUSTICE v CAHILL UNREP EDWARDS 19.7.2012 2012/26/7530 2012 IEHC 315

1 Ms. Justice Murphy delivered the 17th November 2014

2 RULING re s. 21(A)1 of Ms. Justice Murphy delivered the 24th day of July 2014

Relevant Facts

3 1. The respondent is the subject of a European Arrest Warrant issued by the Republic of Poland on the 23 ^rd July 2012. The warrant was forwarded to the central authority in this jurisdiction in March 2013, was endorsed by the High Court for execution in this jurisdiction on the 12 ^th November 2013 and was duly executed on the 6 ^th January 2014. The respondent was arrested by Garda Gerard Newton on that date, following which he was brought before the High Court 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. 15 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 ultimately coming before the court on the 7 ^th July 2014, for the purposes of a surrender hearing. The respondent does not consent to his surrender and accordingly the Court must consider whether the requirements of s. 16 of the Act have been satisfied and whether or not there is any bar to the surrender of the respondent.

2. Offences

4 The warrant is a prosecution warrant which relates to four offences. The first offence relates to participation in a criminal organization with two named people and other unnamed people, and involved dishonestly obtaining by deception loans for the purchase of motor vehicles and consumption goods as well as cash loans. This is a tick box offence. The issuing authority has ticked "participation in a criminal organization" in respect of this offence. The other three offences all relate to alleged frauds committed on specific dates between November 2005 and July 2006. These are also tick box offences and the issuing authority has ticked "fraud" in respect of these three offences.

3. Points of objection

5 Points of objection were filed on the 14 ^th March 2014 and amended points of objection were filed on the 24 ^th of June 2014. Eight points of objection were raised initially, including alleged disproportionate interference with the respondent's Article 8 rights and lack of correspondence as required by s. 38(1). However, by agreement, the issue of whether surrender was barred pursuant to s. 21A(1), which was raised at Paragraph 8 of the Amended Points of Objection, was taken as a preliminary issue. If the respondent were successful on that issue, it would in effect dispose of the entire hearing. The remaining points of objection were held over to await the Court's determination on this point. Point 8 of the Amended Points of Objection states:

6 No decision has been made in the issuing State to charge and try the Respondent with the offences for which his surrender is sought and section 21A(1) of the European Arrest Warrant Act, 2003, as amended, thereby prohibits surrender and in respect of which the presumption contained in section 21A(2) does not apply in the circumstances that prevail in the present case.

7 4. The respondent contends therefore that the Court is prohibited by s. 21A(1) of the European Arrest Warrant Act 2003, as amended, from surrendering the respondent because no decision has been made to charge and try the respondent with the alleged offences. Because of the presumption contained in s. 21(A)(2) that a decision has been made to charge and try the respondent, it is for the respondent to prove that the presumption has been rebutted.

5. The Evidence

8 The evidence before the court is as follows; upon receipt of the warrant and following consideration of same the central authority was unsure whether the warrant was a prosecution or an execution warrant. The uncertainty arose from the fact that section C.1 had been filled in and indicated that the maximum sentence on conviction was 10 years imprisonment. This was a clear suggestion that the warrant was a prosecution warrant. However, section D.2 had also been completed and indicated that the individual did not appear in person at the trial resulting in the decision. This raised the possibility that the warrant was an execution warrant. The central authority wrote, by letter dated the 23 ^rd May 2013, to the judicial authority which issued the warrant namely, Judge Marek Kapala stating:

9 I am to inform you that the warrant is not in order to proceed with and an amended warrant that addresses the following issues is required:

10 (i) Please clarify whether the respondent is sought to serve a sentence or to face prosecution for the offences detailed in the warrant. It appears from section c.l that a sentence has not been handed down yet, however section d indicates that a trial has taken place. If this is the case, the sentences handed down in respect of each offence, in addition to the maximum sentence that may be imposed for each offence, must be included.

11 (ii) With regard to each of the offences detailed in the warrant, please specify which offences are deemed to be covered by the two categories of ticked offences in the Framework List of Offences at section e.l?

12 6. A reply to this letter was sent from Gdansk on the 4 ^th September 2013 and was in the following terms:

13 In reply to your letter of 23 May 2013, this Regional Court in Gdansk, Criminal Division IV, has the honour to advise you that Piotr Pawel Czajkowski is sought for in connection with the pending preparatory proceedings (emphasis added) held by the Regional Prosecutor's Office in Gdansk against him in his capacity of the subject suspected of the offences listed in the European Arrest Warrant. The case is currently at the investigation stage (emphasis added). Therefore section D of the European Arrest Warrant concerning Piotr Pawel Czajkowski...