Minister for Justice and Equality v Mazurkiewicz
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 24 June 2019 |
| Neutral Citation | [2019] IEHC 544 |
| Court | High Court |
| Docket Number | [2018/81 EXT] |
| Date | 24 June 2019 |
[2019] IEHC 544
THE HIGH COURT
Donnelly J.
[2018/81 EXT]
[2018/99 EXT]
European arrest warrants – Rule of specialty – Abuse of process – Applicant seeking an order for the respondent’s surrender – Whether the making of orders of surrender of the respondent would amount to an abuse of process
Facts: The rule of specialty was breached on the occasion of the previous surrender of the respondent, Mr Mazurkiewicz, to the Republic of Poland. The main issue in these proceedings was whether the making of orders of surrender of the respondent pursuant to s. 16 of the European Arrest Warrant Act 2003 in respect of two new European Arrest Warrants (EAWs) would amount to an abuse of process. A related issue was whether the presumption set out in s. 22(2) of the 2003 Act, that a member state will not breach the rule of speciality, had been rebutted.
Held by the High Court (Donnelly J) that, having considered and rejected the objection that it would be an abuse of process to surrender the respondent based upon the previous breach of the rule of specialty, it was satisfied that: (a) the respondent was the person in respect of whom each of the EAWs had issued; (b) each of the EAWs had been endorsed in accordance with s. 13 of the 2003 Act for execution in Ireland’s jurisdiction; (c) the respondent’s surrender was not prohibited by s. 45 on either of the EAWs; (d) it was not required to refuse the surrender under ss.21A, 22, 23 or 24 of the 2003 Act; and (e) the respondent’s surrender was not prohibited by Part 3 of the 2003 Act.
Donnelly J held that she would make an order for the respondent’s surrender to such other person as was duly authorised by the issuing state to receive him.
Order granted.
Extradition agreements generally, and the European Arrest Warrant (‘EAW’) system specifically, permit state parties to require that, as a condition of the extradition, the requesting state will refrain from prosecuting or enforcing a penalty for offences other than the offence for which the requested person has been extradited, unless certain conditions are met. Conditions may include a requirement that consent to prosecution/detention be obtained from the extraditing State or that the extradited person expressly permits such prosecution or detention to take place. This is known as the rule of specialty.
Ireland requires the requesting member state to commit to the rule of specialty when it agrees to surrender a person under the provisions of European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’). In the present case, the rule of specialty was breached on the occasion of this respondent's previous surrender to the Republic of Poland (‘Poland’).
The main issue in these proceedings is whether the making of orders of surrender of the respondent pursuant to s.16 of the Act of 2003 in respect of two new EAWs would amount to an abuse of process. A related issue is whether the presumption set out in s.22(2) of the Act of 2003, that a member state will not breach the rule of speciality, has been rebutted.
On the 19th March, 2010, the respondent was surrendered to Poland for the purpose of prosecution pursuant to an EAW in respect of an offence of theft of a mobile phone and a wallet. In the present proceedings 2018/99 EXT, by way of an EAW dated the 9th January, 2012 (‘EAW B’), the surrender of the respondent is sought by the Circuit Court of Rzeszów as issuing judicial authority, to serve four months and 26 days remaining from the sentence of two years and two months' imprisonment imposed upon him on the 14th May, 2010 in Poland for the theft of that mobile phone and wallet. In the EAW dated 2nd February, 2016 (‘EAW A’) in proceedings 2018/81 EXT, his surrender is sought by the Regional [Both courts are described as ‘S 1d Okrêgowy’, the difference between Regional and Circuit is as a result of the translation. In later letters from those courts, the term used is Regional Court and that will be followed in the rest of this judgment] Court in Szczecin as issuing judicial authority, to serve one year, four months and twenty-nine days remaining from an aggregate penalty of one year and five months' imprisonment imposed upon him in respect of an offence of theft and drink driving. That sentence was imposed on him in his absence by the Szczecin-Centrum District Court in Poland on the 20th July, 2010.
On the 14th May, 2010, following his conviction, the District Court of Rzeszów released him from preventative detention. As is familiar to these courts by now, pre-trial detention in Poland is treated separately from any subsequent requirement to serve a sentence of imprisonment. A person convicted in Poland is often not required to serve the sentence imposed immediately. Instead, the position is that the person may be released and called upon at a later time to serve the actual sentence imposed. In those circumstances, a separate process of enforcement of the sentence usually begins with a request to a person to attend at a prison to serve their sentence leading to the issuing of a warrant for their arrest to serve that sentence if necessary.
In circumstances where the preventative detention of the respondent was no longer mandated by the Rzeszów District Court, the respondent should have been released from custody. I am satisfied that he was not so released, but was kept in custody up to the 10th June, 2010 in respect of a Gryfino District Court conviction for driving whilst being drunk. This amounted to a sentence of 90 days ultimately imposed upon him because of his failure to comply with community service. No request for his detention on that offence had been made to, or granted by, the High Court in this jurisdiction. The respondent had not consented to his detention on that offence. This is the breach of specialty at issue in the case.
As will become clear when the facts are set out in more detail, he had given explicit consent to being prosecuted for the offences set out in EAW A and no breach of the rule of specialty was made in respect of those offences. The respondent's point of objection raised the issue of a breach of specialty in relation to those offences.
The course of the present EAW proceedings in this jurisdiction was not smooth. The respondent swore an initial affidavit that raised some issues about trial in absentia but his averments did not provide clarity as to the true situation. The issue as regards breach of specialty as regards the offences contained in EAW A was raised but that was not pursued in light of the information given by the issuing judicial authority. Moreover, the respondent said that he was released from prison in Poland and was unaware of any obligation to remain in Poland. This does not take into account that he was present at the time his sentence was imposed in respect of the offence set out in EAW B and therefore must have known he had a further sentence to serve. That sentence remained outstanding no matter whether there was a condition to remain in Poland or otherwise. He stated he was in custody in Poland until the 10th June, 2010 but did not provide any confirmation of this. He did not refer to having served another sentence.
When the matter came on for hearing on the 27th November, 2018, the respondent brought documentation with him, in the Polish language, appearing to indicate that he had been in custody beyond the 14th May, 2010 in respect of an offence other than that for which he had been sentenced. At that point, I permitted the court translator to give evidence in respect of the document. That evidence supported the view that he had been in custody up to 10th June, 2010. This raised at a minimum an issue as to whether he had been given full credit for time spent in custody, because EAW B indicated that he had been in custody up to the 14th May, 2010.
Of further note is that while in prison on the 10th June, 2010, the respondent was served with a summons to appear at Szczecin District Court on the 20th July, 2010 in respect of the charges forming the subject matter of EAW A. The date had been wrongly indicated in EAW A as the 7th October, 2008, but was clarified as being incorrect in further information obtained from the issuing judicial authority. The correct date was 10th June, 2010 and the information was that he collected the summons in person. When the respondent queried this, further information was requested of, and provided by, the issuing judicial authority. The information established without doubt that he had been served in the prison before he was released on the same day. He signed for the summons. The respondent in his final affidavit stated that he does not recall receipt of the summons but accepted that he signed many documents on his release.
Despite having been released from prison, the respondent did not attend court in relation to the prosecution for the offences on EAW A. He was sentenced in his absence to one year and five months' imprisonment. I am satisfied on the basis of the information received that the summons was in fact personally served on him and acknowledged by him through his signature. I am satisfied by virtue of the service personally on him that his surrender is not prohibited under s. 45 of the Act of 2003 arising out of the trial in absentia.
Following the hearing before me on the 28th November, 2018, the central authority sent a letter to the Polish judicial authorities seeking further information in respect of the warrants. In particular, further information was sought as to the time he had spent in custody from the 14th May, 2010. At that point, the focus in the proceedings was...
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