Minister for Justice and Equality v TN

• Jurisdiction: Ireland
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 14 October 2019
• Neutral Citation: [2019] IEHC 674
• Date: 14 October 2019
• Court: High Court
• Docket Number: [Record No. 2018/29 EXT] [Record No. 2018/150 EXT]

[2019] IEHC 674

THE HIGH COURT

Alexander Owens

[Record No. 2018/29 EXT]

[Record No. 2018/150 EXT]

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

BETWEEN:

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

TN

RESPONDENT

European arrest warrants – Surrender – Proportionality – Applicant seeking the surrender of the respondent – Whether the respondent’s surrender was proportionate

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking the surrender of the respondent on European arrest warrants relating to sentences imposed on him in Poland in 2004 and 2006.

Held by Owens J that the respondent had established that the effect of the interference with his family life and the family lives of his dependants which would follow from surrender to serve those sentences would be disproportionate and was not justified by countervailing public interest considerations arising under the Framework Decision.

Owens J decided to decline to order surrender of the respondent.

Order for surrender refused.

Judgment of Mr. Justice Alexander Owens delivered on 14th October 2019

1 I have decided to decline to order surrender of the respondent on the European arrest warrants relating to the sentences imposed on him in Poland in 2004 and 2006. He has established that the effect of the interference with his family life and the family lives of his dependants which would follow from surrender to serve these sentences would be disproportionate and is not justified by countervailing public interest considerations arising under the Framework Decision.

2 Various objections to surrender were advanced on behalf of the respondent. In the light of my finding on disproportionality it is not necessary to rule on all of these objections. It is appropriate for me to comment on issues where there is enough material before me to enable me to come to a conclusion.

3 I would have needed further information from the Polish authorities in order to deal with some of the points raised. I might have enquired whether the duration of the sentences is calculated by reference to calendar or lunar months. The requesting authority states that the time limit in Poland for the execution of the first sentence of four months imprisonment expired on 11th October 2019. I would have sought further information on this. The respondent states in his affidavit that he did not initiate an appeal against the second conviction. This contradicts information supplied by the requesting authority and I would have afforded that authority an opportunity to respond.

4 I refer to the first conviction and sentence. The respondent asserts in his supplemental affidavit that he was abroad on a particular date, implying that he could not on that date have collected the notice of the sentence hearing relating to the first offence, as claimed by the requesting authority. This is unsatisfactory. His affidavit does not engage with how he came to agree the penalty for the offence with the prosecutors around the same time. This agreement was formalised by a subsequent court order at the hearing which he did not attend.

5 The European arrest warrant relating to this proceeding and the supplemental information provided establish on their face compliance with a requirement in the Table to s. 45 of the European Arrest Warrant Act 2003, as amended. I accept this information at face value. A bare assertion of the sort relied on by the respondent is not sufficient to warrant further enquiry of a requesting authority. Further enquiry is only necessary where there is ambiguety or inconsisteny in the documentation presented by the requesting authority or where credible evidence is presented which casts doubt on the reliability of the statements in that documentation.

6 The European arrest warrants were issued in November 2010 and June 2014. They seek the surrender of the respondent to Poland to serve sentences of imprisonment for violations of a court ban on driving motor vehicles “in land traffic” which is the equivalent of an Irish offence of driving a mechanically propelled vehicle in a public place while disqualified, contrary to s. 38 (1) and s. 38 (5) of the Road Traffic Act 1961 as inserted by s. 12 of the Road Traffic Act 2006 and earlier legislation.

7 The first offence took place in a street in Szczecin in July 2004. The respondent asserted that the applicant has not established that this offence corresponds with an Irish offence. It was argued that the offending might have occurred when the respondent was driving in a street at a time when it was not a “public place” as defined in Irish legislation. In my view, there is no substance to this objection. The documents make clear that the offence was of driving “in land traffic” on a street. This information and description are sufficient for me to conclude that the offence was committed while he was driving in a public place. He has not offered any evidence to demonstrate that he was not driving a car in a public place at the time.

8 The second offence was committed in Szczecin on 24th April 2006. It resulted in a criminal charge which the respondent did not answer to. He was convicted in his absence. This conviction was the subject of an appeal which he denies that he initiated or participated in. His evidence is that his wife attended at the appeal hearing as he was abroad and that the appeal court refused to entertain her.

9 As a result of the first conviction the respondent was sentenced to a term of four months imprisonment. As a result of the second conviction he was sentenced to a term of six months imprisonment. I am told that the first sentence was a suspended sentence which was activated at some point.

10 The respondent has been living and working in Ireland since 2007. He got married in Poland in 2005. The abandoned element of the first European arrest warrant suggests that he has two children in Poland from a previous relationship. He lives with his wife and their three children in a village in west County Cavan and has worked at various jobs while living here. It is clear that he emigrated to Ireland with his family for economic reasons and that he decided not to engage with the Polish penal authorities. I suspect that his situation is not unique and that many Polish nationals may be working and settled in Ireland who are in a similar position.

11 The offences which led to these European arrest warrants are minor offences. The sentences are at or close to the minimum period set out in Article 2 (1) of the Framework Decision.

12 A long period elapsed before the European arrest warrants were issued and these warrants have been executed very recently. There is no explanation as to why enforcement is taking place now. This case cannot have been the most pressing...