Minister for Justice and Equality v Stawera
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 19 June 2017 |
| Neutral Citation | [2017] IEHC 420 |
| Docket Number | Record No. 2016/25 EXT |
| Court | High Court |
| Date | 19 June 2017 |
[2017] IEHC 420
THE HIGH COURT
Donnelly J.
Record No. 2016/25 EXT
International law – Extradition – European Arrest Warrant Act 2003 – Execution of European Arrest Warrant (‘EAW’) – 2002 Framework Decision – ne bis in idem – Aggregation of sentence
Facts: The requesting State sought the surrender of the respondent for the execution of sentence of imprisonment remaining from an aggregate sentence imposed upon the respondent in relation to the commission of 22 separate offences. The respondent argued that he had already served two years of imprisonment in relation to one of the 22 offences and thus, his surrender was in violation of the principle of ne bis in idem. The respondent also submitted that two of the offences, namely, the offences of hiding documentations did not correspond with the offences in the present jurisdiction.
Ms. Justice Donnelly made an order for the surrender of the respondent. The Court held that the issuing judicial authority of the requesting State clearly set out in the European Arrest Warrant (‘EAW’) that 20 out of 22 offences belonged to the category where there was no need to show the corresponding offences. The Court held that the remaining two offences corresponded to the offence of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 in the present jurisdiction. The Court held that the respondent's surrender was not prohibited under s. 41 of the European Arrest Warrant Act 2003 as the sentence already served by the respondent was not in relation to the final judgment. The Court held that the respondent's claim that he had served the final sentence under art. 3.2 of the Framework Decision could not be entertained as the issue of final judgment must be considered in the context of issuing judicial authority. The Court noted that as a result of request for the aggregation of sentence, the respondent was mandated to serve the remaining sentence, and his earlier time spent in the prison had been duly taken into consideration and thus, there was no violation of the principle of ne bis in idem.
Poland seeks the surrender of the respondent pursuant to a European arrest warrant (‘EAW’) issued on 27th November, 2014, for the purpose of executing a sentence of 3 years, 4 months and 29 days of imprisonment remaining from an aggregate sentence of 5 years and 5 months imprisonment imposed upon him in respect of 22 separate offences. Two points of objection were argued on behalf of the respondent.
The first point of objection arose in circumstances where the respondent had previously been surrendered to Poland by Order of the High Court for execution of a sentence of 2 years of imprisonment imposed upon him in respect of one of these 22 offences and which said sentence was thereafter served by him in Poland. It was submitted that it was a violation of the principle of ne bis in idem (double jeopardy) to surrender him a second time in respect of the same offence. In the alternative, it was argued that these circumstances amounted to an abuse of process. The second substantive point of objection was that two of the offences for which surrender was sought, namely offences of hiding documentation, did not correspond with offences in this jurisdiction.
The surrender provisions of the European Arrest Warrant Act 2003, as amended (‘the Act of 2003’) apply to those member states of the European Union (‘E.U.’) that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States (‘the 2002 Framework Decision’). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) (No. 3) Order 2004 ( S.I. No. 206/2004), the Minister for Foreign Affairs has designated Poland as a member state for the purposes of the Act of 2003.
I am satisfied on the basis of the affidavit of William Kelly, member of An Garda Síochána, the affidavit of the respondent, and the details set out in the EAW that the respondent, Piotr Stawera 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 of the Act of 2003 for execution in this jurisdiction.
Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under the above provisions of the Act of 2003, as amended.
Subject to further consideration of s. 38 and s. 45 of the Act of 2003, as amended, 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.
In 20 out of the 22 offences, the issuing judicial authority has ticked the box at point (e)1 of the EAW, thereby designating these offences as offences for which correspondence need not be shown. Pursuant to the provisions of Article 2 para. 2 of the 2002 Framework Decision, the 20 offences were designated as either ‘forgery of administrative documents and trafficking therein’, ‘forgery of currency, including that of the Euro’, or ‘fraud’. Each of those offences was punishable by a maximum sentence of at least three years imprisonment in accordance with Polish law. Given the details of the offences as set out at point (e) of the EAW, there is no manifestly incorrect designation of these offences as list offences under the said provisions. In the circumstances, the Court is satisfied that the respondent's surrender is not prohibited in respect of any of the 20 offences which have been so designated.
In respect of offences XVIII and XIX, correspondence is required. The details of these offences are stated on the EAW as follows:
‘XVIII. at some time before 19th February 2007, in the town of Wrzesnia, located in the province of wielkopolskie, in his apartment he was hiding documents in the form of a personal ID card no. ACF669622 and a driver's licence no. E1909758, issued in the name of Jakub Wendland, which he had no right to solely dispose of
XIX. at some time before 19th February 2007, in the town of Wrzesnia, located in the province of wielkopolskie, in his apartment he was hiding documents in the form of a social insurance ID card Cl000490323, issued in the name of Renata Kedziora, which he had no right to solely dispose of’.
Not surprisingly the central authority sought further information in respect of these alleged offences. The relevant parts of the letter sent on 28th April, 2015 stated:
‘3. Please confirm whether the driving licence personal identification card mentioned in the offence at No. 18 and the social insurance card in the offence at No. 19 had been stolen from the named injured parties. In other words, please clarify if those documents were taken from the two injured parties without their consent and/or misappropriated from them.
4. Please provide additional information about the circumstances in which the documents were found and were possessed by Mr. Stawera. The EAW states that the Respondent was “ hiding” the documents but it should be outlined how they were so hidden by him. Did Mr. Stawera give any reason for “hiding” the documents?
5. Please provide any information that establishes that Mr. Stawera knew that the documents were stolen or that he disregarded a substantial risk that they were stolen (if the documents were stolen). For instance, did Mr. Stawera know where the documents had come from or provide any explanation for his possession of same? Was any such explanation contradicted or supported by the other facts in the case?’
The letter of the central authority had not indicated that the reason this information was sought was for the purpose of establishing correspondence with an offence in Irish law. That might explain why the issuing judicial authority responded in the following way:
‘4) According to Polish law, hiding a document a person is not legally authorized to dispose of exclusively, is considered an act subject to criminal liability. Pursuant to Article 276 of the criminal code, anyone who destroys, damages or renders unfit for use, or hides, or removes a document which he or she has no exclusive right to possess is liable to a fine, the restriction of liberty or imprisonment for up to two years. Hiding a document means that a document is made unavailable for persons who have the right to use the same and want to exercise this right. The authorized person not only has no access to the document, but simply does not know where the document is located. Therefore, the fact how somebody else's identity card, driving licence and security identification card got into the requested person's apartment is of no importance for the criminal liability. Moreover, it is obvious that a person who keeps another person's documents must be aware that such person must have lost the documents. A normal and a desirable behaviour in such situation is to return the documents to their legal holder and not to conceal them in one's apartment.
5) Additionally, we want to emphasize that reconsidering guilt of the requested person or assessment of evidence concerning the concealment of documents under execution of the EAW seems unacceptable, because this question has already been finally adjudicated. The mechanisms of the European arrest warrant is based on a high level of confidence between...
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Minister for Justice and Equality v Hopjan
...s. 41 of the Act of 2003 and a general abuse of process point. In light of the decision in Minister for Justice and Equality v. Stawera [2017] IEHC 420, the respondent did not persist with these points of objection. This Court is quite satisfied, for the reasons set out in Stawera, that th......