Minister for Justice and Equality v Wojciech Kasprowicz
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 14 November 2013 |
| Neutral Citation | [2013] IEHC 531 |
| Court | High Court |
| Date | 14 November 2013 |
[2013] IEHC 531
THE HIGH COURT
Between:
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN ARREST WARRANT ACT 2003 S22(3)
EUROPEAN ARREST WARRANT ACT 2003 S16(1)
EUROPEAN ARREST WARRANT ACT 2003 S16(11)
EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012 S10
EUROPEAN ARREST WARRANT ACT 2003 S22
EUROPEAN ARREST WARRANT ACT 2003 S37
ARKLOW HOLIDAYS LTD v BORD PLEANALA & AG (NO 1) 2007 4 IR 112 2007 1 ILRM 129 2006/3/463 2006 IEHC 102
PLANNING & DEVELOPMENT ACT 2000 S50(4)(F)
MIN FOR JUSTICE v TOKARSKI UNREP SUPREME 6.12.2012 2012 IESC 61 B
MIN FOR JUSTICE & ORS v GOTSZLIK 2009 3 IR 390 2009/39/9675 2009 IESC 13
EUROPEAN ARREST WARRANT ACT 2003 S22(7)
EUROPEAN ARREST WARRANT ACT 2003 S37
MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30
Criminal law- European Union law- European arrest warrant- Surrender- Rule of specialty- Oppression- Delay- Refusal to surrender- Certification of appeal to the Supreme Court
Facts: The respondent had sought an order certifying that the Court”s order or decision involved a point of law of exceptional public importance that an appeal should be taken to the Supreme Court. Surrender had been opposed pursuant to a European arrest warrant on the basis of a three year delay in the transmission of the arrest warrant, the application of the rule of specialty and alleged oppression pursuant to s. 37 of the European arrest warrant Act 2003, as amended.
Held by Edwards J. that the Court was not disposed to certify any of the questions on the basis that there was no evidence that the issuing state intended to disregard the rule of specialty. Delay had not been put forward as a factor to prejudice any legal right and no link was made between alleged oppression and recognised rights.
JUDGMENT of Mr. Justice Edwards delivered on the 14th November, 2013.
The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 23 rd November, 2009. The warrant was endorsed by the High Court for execution in this jurisdiction on the 17 th July, 2012, and it was duly executed on the 6 th June, 2013. It is an accusation case and relates to a single offence based upon an alleged deception involving the use of a forged document and in respect of which a box is ticked in Part E. I of the warrant relating to "fraud". The matter was the subject of a surrender hearing on the 9 th September, 2013, in accordance with s. 16 of the European Arrest Warrant Act 2003 as amended (hereinafter "the Act of 2003")in the course of which the respondent sought to resist surrender on two substantive grounds.
The first such ground was a contention that the presumption contained in s. 22(3) of the Act of 2003 was to be regarded as having been rebutted in all the circumstances of the case and that the Court could not be satisfied that if the respondent were returned on foot of the present warrant that the issuing state would not seek to execute a sentence for another offence which was previously the subject of another European arrest warrant issued by the issuing state against the respondent and on foot of which this Court had ordered the respondent's surrender, in circumstances where, notwithstanding that this Court had ordered the respondent's surrender, he was not in fact surrendered within the time then permitted by the statute and the time was not capable of being extended.
The second ground relied upon for resisting surrender was that the respondent was entitled to rely upon unexplained delay by the issuing state in transmitting the present warrant to the authorities in this state as being sufficient in itself to justify this Court in refusing to surrender the respondent. As a subset to this general proposition it was argued that the delay in the case operated to effect a breach of what was characterised as the respondent's "unenumerated constitutional right not to be oppressed".
In an ex tempore judgment delivered on the 13 th September, 2013, this Court rejected both grounds of objection and, having resolved or determined all other formal issues in favour of the applicant, ordered the respondent's surrender pursuant s.16(1) of the Act of 2003.
The respondent now seeks an order pursuant to s. 16(11) of the Act of 2003 (as now substituted by s.10 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012) certifying that the Court's order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
The Court has been asked to certify the following three questions:
1. Does the Rule of Specialty/Section 22 of the European Arrest Warrant Act 2003, as amended, prohibit the surrender of a person under a European arrest warrant in circumstances where the issuing State pursuant to a European arrest warrant had previously sought the surrender of the person to serve sentences of imprisonment in that state in respect of different offences, and where the High Court surrender Order made in relation to the previous warrant has lapsed but where the sentences remain extant in the issuing State.
2. Is an unexplained delay of almost three years between the issue and the transmission of a European arrest warrant a sufficient reason of itself to ground a refusal of surrender and/or is such a delay a sufficient reason to refuse surrender in circumstances where the issuing State has not explained why it transmitted only one of two European arrest warrants that issued that from state in or about the same period and where the requested person was arrested and detained and the subject of a surrender order on the warrant that was transmitted?
3. Is there an unenumerated constitutional right of "freedom from oppression" such that section 37 of the European Arrest Warrant Act 2003 might be invoked to prohibit surrender in such circumstances?
I am not disposed to certify any of the three questions posed, and this judgment contains my reasons for refusing to do so.
The Court has received helpful legal submissions from counsel on both sides, and there is no controversy as to the applicable principles.
The relevant statutory provision is s. 16(11) of the...
To continue reading
Request your trial
-
Min for Justice v Polak
...by Mr Justice Edwards. 29 The court was also referred to the case of The Minister for Justice, Equality and Law Reform v. Kasprowicz [2013] IEHC 531, Mr Justice Edwards stated that "By the same token delay is routinely relied upon in this Court in the context of objections to surrender base......
-
Minister for Justice and Equality v Martin
...that a point to be certified be such that it is likely to resolve other cases”. 11 In Minister for Justice and Equality v. Kasprowicz [2013] IEHC 531, when considering the correct approach as to whether or not a certificate under s. 16(11) of the 2003 Act should issue, Edwards J. stated at ......
-
The Minister for Justice and Equality v Petronel Pal
...3 The correct approach to be followed for certification applications was described by Edwards J in Minister for Justice v. Kasprowicz [2013] IEHC 531 as follows: “The general approach to be taken is that identified by Clarke J. in Arklow Holidays v. An Bord Pleanala [2007] 4 I.R. 112 as bei......