Minister for Justice Equality and Law Reform v Skowronski
|Mr Justice Michael Peart
|31 October 2006
| IEHC 321
|31 October 2006
|Record Number: No. 92 Ext./2006
 IEHC 321
THE HIGH COURT
EUROPEAN ARREST WARRANT ACT 2003 S13(5)
EUROPEAN ARREST WARRANT ACT 2003 S45
EUROPEAN ARREST WARRANT ACT 2003 S21A
EUROPEAN ARREST WARRANT ACT 2003 22
EUROPEAN ARREST WARRANT ACT 2003 S23
EUROPEAN ARREST WARRANT ACT 2003 S24
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) PART 3
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2
EUROPEAN ARREST WARRANT ACT 2003 S11(1)
EUROPEAN ARREST WARRANT ACT 2003 S20(1)
EUROPEAN ARREST WARRANT ACT 2003 S13(2)
RULES OF THE SUPERIOR COURT (EUROPEAN ARREST WARRANT ACT 2003 & EXTRADITION ACTS 1965 TO 2001) 2005 SI 23/2005
Criminal law - Extradition - European arrest warrant - Practice and procedure - Written points of objection - Purpose - Format to be complied with - Delay - European Arrest Warrant Act 2003 (No 45), section 16.
the Polish central authority requested the surrender of the respondent to face a charge of as set forth in a European arrest warrant. He objected to his surrender on the basis, inter alia; of delay between the receipt of the warrant and its endorsement for execution and that the warrant ought to have stated what sentence was imposed for the first offence and what sentence was imposed for the second offence. Counsel for the respondent initially pleaded seven written points of objection, four of which were dropped in an amended points of objection in which four additional ones were added. At the hearing of the application, counsel for the respondent relied on only two of the points pleaded.
Held by Mr Justice Peart in making an order under section 16(1) of the Act of 2003 for the surrender of the respondent to the requesting state, 1, that the length of the custodial sentence or detention order imposed and the remaining sentence to be served was all that was required to be stated on the European arrest warrant in the case of a sentence already imposed by the requesting state. 2. That the document referred to as points of objection was not to be confused with a pleading document such as a defence in a civil action and had to contain sufficient detail as to the basis of objection so that the applicant and the court could know by reading the document precisely the points being made.
The surrender of the respondent is sought on foot of a European arrest warrant which is dated 29th November 2005. It was received in this State on the 4th August 2006 and shortly thereafter on the 8th August 2006 this Court ordered the endorsement of same for execution here. On the 21st August 2006 at 9.25pm, the respondent was duly arrested and brought before the Court as required by s. 13 (5) of the European Arrest Warrant Act, as amended, on the following day the 22nd August 2006, on which occasion the respondent was remanded in custody from time to time until the hearing of the present application on the 27th October 2006.
No issue is raised in the Points of Objection filed herein as to the identity of the respondent or the formalities of the arrest. I am in any event satisfied that the person before the Court is the person in respect of whom the European arrest warrant has been issued and I am also satisfied that the said warrant has been duly endorsed for execution in this State.
I am further satisfied that since the sentence of imprisonment which has been imposed on the respondent in Poland on the 21st January 2004 is not one which was imposed in absentia, no undertaking is required under s. 45 of the Act. Furthermore it is clear that the Court is not required to refuse surrender by any of the provisions in sections 21A, 22, 23, 24 of the Act, or by Part 3 of the Act or the Framework Decision itself.
As the offences which gave rise to the said conviction are some of those set forth in Article 2.2 of the Framework Decision and set forth also in Part E of the prescribed form of warrant in that Framework Decision, the double criminality of the acts involved in those offences does not have to be verified. In addition there are of the required minimum gravity.
Subject to dealing with the two points of objection on which the respondent is now relying, the Court is therefore required by the Act to make the order for the surrender of the respondent.
Before I deal in detail with the two points now being relied upon, it is necessary to refer to the Points of Objection as originally filed on the 26th September 2006, and the Amended Points of Objection filed only on the 18th October 2006. It is worthy of the Court's criticism, and in order that in future the practice will cease, that the first points of objection contained six points, only three of which survived into the amended Points of objection. In the latter document four new points were added, making seven in all. At hearing five of those seven grounds were dropped, leaving two, namely a delay ground, and a ground concerning some perceived ambiguity as to whether the sentence imposed in Poland was in respect of one offence or two offences.
This Court has said on previous occasions that the purpose of Points of Objection is to put the applicant on notice in a sufficiently precise and clear manner of just what points of objection will be relied upon at the hearing of the application, and that it is not appropriate or sufficient to simply file a document called Points of Objection but which contains to a large extent merely unspecific allegations of non-compliance with various requirements of the European Arrest Warrant Act,2003as amended or the Framework Decision. I have noted before that the application for an order under s. 16 of the Act is not to be treated in the same manner as a civil action where very frequently fairly meaningless pleadings are exchanged, on the basis that eventually in replies to particulars some meat so put on the flesh and the other party at last knows what case it has to meet. In such applications, Points of Objection serve the purpose only to put the applicant on notice in a meaningful way of what case is being made to oppose the application. Fair procedures require this, and it must always be remembered that these are not criminal proceedings where the accused is under no obligation to disclose in advance of the trial what his or her defence might be. Rules of procedure have been provided for.
In the present case, I intend to go through the documents filed in some detail in order to make my point clear.
I will take the original Points of Objection first. In that document six points were raised as follows:
"1. The surrender of the respondent for the offences outlined in the warrant is prohibited by statute, and, in particular is so prohibited by the provisions of the European Arrest Warrant Act, 2003."
This point is so general as to convey nothing of assistance to the applicant. The Act contains a number of possibilities as to why surrender might be prohibited; for example, any of the provisions in Part III of the Act, or sections 21A, 22, 23 or 24 of the Act. Such a general plea is not a proper manner to raise a point of objection, and it seems extraordinary that it survived intact into the Amended Points of Objection, when presumably some refinement of the points was being undertaken at a late stage before the hearing. It was ultimately not relied upon, except to the extent that it might be seen as encompassing the two grounds ultimately relied upon being points 4 and 6 in the Amended Points. In that event, this paragraph was otiose, and ought to have been deleted.
"2. The aforesaid warrant is not in the form required by s. 11(1) of the European arrest warrant Act 2003, and is not in the form set out in the Annex to the Framework Decision in that it does not contain a sufficient description of the circumstances in which the offence was committed including the precise time and location of the offence and the degree of participation in the offence by the respondent."
This point also somehow survived into the Amended Points of Objection, though was not relied upon at the hearing. Paragraph E of the warrant states at its outset that"1. in the night from 24 to 25 September 2001 acting together and under arrangement with other undefined persons he deprived [the victim] of liberty in such a way that, against her will, he drove her away to a forest" and "2. in the same place as specified in point 1 acting together and under arrangement with other defined persons, in order to gain material benefit he used violence towards [the victim], by beating her with his hands on the face and threatening to deprive her of life by using a pistol which he had put to her head as well as threatening to infect her with HIV virus, he tried to cause her to dispose of her own property by giving him money in the amount of not less than 4,000 Zloty....."
I find it incomprehensible how it could ever have been considered even arguable that this description of the alleged offence"does not contain a sufficient description of the circumstances in which the offence was committed including the precise time and location of the offence and the degree of participation in the offence by the respondent" as pleaded in the document. Given that the respondent was present in court in Poland when he was tried and convicted and sentenced for these offences, the raising of the point is all the more unusual. It is not surprising that the respondent did not see fit to waste the Court's and the applicant's time attempting to argue that point.
"3. It is submitted therefore that this Honourable Court should exercise its...
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