Minister for Justice & Equality v Arkadiusz Krzysztof Guz

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] IEHC 388
• Court: High Court
• Date: 31 July 2012

[2012] IEHC 388

THE HIGH COURT

Record No 22 EXT/2011

Record No 23 EXT/2011

Record No 24 EXT/2011

Record No 25 EXT/2011

Record No 26 EXT/2011

Record No 27 EXT/2011

Record No 132 EXT/2011

Min for Justice v Guz

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

- AND -

ARKADIUSZ KRZYSZTOF GUZ

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO 3) ORDER SI 206/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO 3) ORDER SI 206/2004 ART 2

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL DAMAGE ACT 1991 S2

ROAD TRAFFIC ACT 1961 S113

RSC O.89

RULES OF THE SUPERIOR COURT (EUROPEAN ARREST WARRANT ACT 2003 & EXTRADITION ACTS 1965-2001) SI 23/2005

MIN FOR JUSTICE v NOWAKOWSKI UNREP 12.10.2008 2008/41/8948 2008 IEHC 439

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL DAMAGE ACT 1991 S2

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(II)

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

MIN FOR JUSTICE v MARJASZ UNREP EDWARDS 24.4.2012 2012 IEHC 233

PANOVITS v CYPRUS 2008 27 BHRC 464

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(I)

LARCENY ACT 1916 S1(2)(I)(D)

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S52

DPP v BREHENY UNREP SUPREME 2.3.1993 1993/2/255

ROAD TRAFFIC ACT 1961 S3(2)

ROAD TRAFFIC ACT 2010 S72

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13

ROAD TRAFFIC ACT 2010 S5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3(2)

EUROPEAN ARREST WARRANT ACT 2003 S41

REGISTRAR OF COMPANIES v ANDERSON 2005 1 IR 21

O'BRIEN v FAHY UNREP HEDIGAN 26.5.2009 2009/43/10842 2009 IEHC 252 2009 JIC 2604

S (D) v JUDGES OF THE CORK CIRCUIT COURT & DPP 2008 4 IR 379

CONNELLY v DPP 1964 AC 1254

REX v KENDRICK & SMITH 1931 144 LT 748

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3(2)

CRIMINAL PROCEEDINGS AGAINST KRAAIJENBRINK 2007 3 CMLR 44 2007 ECR I-6619

CRIMINAL PROCEEDINGS AGAINST VAN ESBROECK 2006 3 CMLR 6 2006 ECR I-2333

CRIMINAL PROCEEDINGS AGAINST MANTELLO 2013 AER (EC) 312 2011 2 CMLR 5 2010 ECR I-11477

EUROPEAN ARREST WARRANT ACT 2003 S41(1)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL DAMAGE ACT 1991 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(3)

EUROPEAN ARREST WARRANT ACT 2003 S45

EXTRADITION

European Arrest Warrant

Multiple warrants - Objections to surrender - Correspondence - Review of fairness of trial - Non-representation - Ne bis in idem - Autrefois convict - Trial and conviction in absentia - Whether correspondence - Whether some ingredients of offence not made out - Whether respondent fled issuing state - Whether trial unfair - Whether already convicted for same acts - Minister for Justice and Law Reform v Nowakowski (Unrep, SC, ex tempore, 12/10/2011); Minister for Justice and Equality v Marjasz [2012] IEHC 233, (Unrep, Edwards, 24/4/2012); Panovits v Cyprus (App No 4268/04)( Unrep, ECtHR, 11/12/2008); Director of Public Prosecutions v Breheny (Unrep, SC, 2/3/1993); Registrar of Companies v Anderson [2005] 1 IR 21; O'Brien v Fahy [2009] IEHC 252, (Unrep, Hedigan J, 26/5/2009); S(D) v Judges of the Circuit Court [2008] IESC 37, [2008] 4 IR 379; Connolly v Director of Public Prosecutions [1964] AC 1254; R v Kendrick (1931) 144 LT 748; Kraaijenbrink (Case C-367/05) [2007] ECR I-06619; Van Esbroeck (Case C-436/04) [2006] ECR I-02333; Mantello (Case C-261/09) [2010] ECR I-11477 considered - European Arrest Warrant 2003 (No 45), ss 3, 10, 13, 16, 37, 41 and 45 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 4, 6 and 26 - Criminal Damage Act 1991 (No 31), s 2 - Road Traffic Act 1961 (No 24), ss 3, 49, 52, 53 and 113 - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 28) - Road Traffic Act 2010 (25), ss 5 and 72 - Non-Fatal Offences Against the Person Act 1997 (No 26), ss 3, 5 and 13 - Criminal Justice (Public Order) Act 1994 (No 2), s 19(3) - European Arrest Warrant Act 2003 (Designated Member States)(No 3) Order 2004 (SI 206/2004) - Rules of the Superior Courts (European Arrest Warrant Act 2003 and Extradition Acts 1965 to 2001) 2005 (SI 23/2005), O 98 - Framework Decision 2002/584/JHA , art 3(2) - Respondent surrendered for some offences (2011/22-27EXT and 2012/132EXT - Edwards J - 31/7/2012) [2012] IEHC 388

Minister for Justice and Equality v Guz

Facts: The respondent was the subject of a number of various arrest warrants for surrender to the Polish authorities. In respect of the offences that were alleged to have taken in Poland it was contended that these corresponded to offences of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and with other Irish offences (offence of attempted theft contrary to common law and offences contrary to the Criminal Damage Act 1991/Road Traffic Act 1961). On behalf of the respondent it was contended that there was a lack of correspondence with Irish offences. It was submitted that in a number of the offences the facts as disclosed in the warrant were not sufficient as to amount to equivalent offences under Irish law. It was also submitted that there was an unfairness in Irish law in that there was no requirement to inform the respondent with what offences the court would be asked to find correspondence with. In addition it was contended that in relation to one offence the surrender of the respondent was not permitted under the European Arrest Warrant Act, 2003 as there was no evidence on the face of the warrant that the respondent had fled from the issuing state. Matters were also raised as to the provision of legal aid and the alleged infirmities in the trial process in Poland and the minor age at that time of the respondent.

Held by Edwards J in ordering the surrender of the respondent: The court was satisfied that each warrant was duly executed within the jurisdiction and that in each instance the correct person was before the court and was the person as named in the relevant European arrest warrant. Even if correspondence had never been challenged, it would still have to be demonstrated that the facts as disclosed in the warrant satisfied the ingredients of the various offences in Irish law put forward as corresponding offences. It was desirable that in future cases respondents would be informed in advance of the hearing in respect of which offences, in Irish law, would correspondence be asserted. The court was satisfied that three of the offences corresponded with the offence of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 ( Nowakowski, unreported, Supreme Court, 12/10/11 referred to) as did the offence of attempted theft contrary to common law. It was clear that the respondent did have a right to the assistance of a state employed lawyer and was informed of this. Correspondence had been shown in relation to the offence of using a false instrument contrary to s.26 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The objection based upon ne bis in idem would be upheld in relation to one of the warrants. The respondent would be surrendered for the offences contained in warrants nos. 1, 2, & 7, and 6 (E2(a) and E2(c)). Surrender would not be ordered in respect of the offences on warrants nos. 3 and 4, and 6(E2(b)). Warrant no. 5 had been withdrawn.

1 JUDGMENT of Mr Justice Edwards delivered on the 31st day of July, 2012.

Introduction:

2 In this case the respondent was initially the subject of six separate European arrest warrants on foot of which the Republic of Poland seeks his surrender either for prosecution, or to serve a sentence or sentences, as the case may be, in respect of the various offences that are the subject of the six warrants in question. One of these six warrants was subsequently withdrawn. However, a new and seventh warrant was then issued and, in effect, substituted for the withdrawn warrant.

3 The sheer number of warrants in this case creates the potential for confusion, particularly in circumstances where each case has a separate record number, where some warrants share the same date, where each warrant has a different Polish domestic file reference number (and sometimes more than one where there has been an appeal), and a different Polish European arrest warrant file reference number. Therefore it is necessary at the outset to identify each warrant properly and to give it a single and convenient label of the purposes of this judgment. It is proposed to simply label the warrants as Warrant Nos. 1 - 7, respectively.

Warrant No. 1

4 This is the subject of the proceedings bearing record no. 2011 No. 22 EXT and is the first of two warrants dated the 26 ^th February, 2008. The Polish domestic file reference number is II K 266/02 and the Polish European arrest warrant file reference number is IV Kop 95/08.

Warrant No. 2

5 This is the subject of the proceedings bearing record no. 2011 No. 23 EXT and is the second of two warrants dated the 26 ^th February, 2008. The Polish domestic file reference number is III K 566/06 and the Polish European arrest warrant file reference number is IV Kop 96/08.

Warrant No. 3

6 This is the subject of the proceedings bearing record no. 2011 No. 25 EXT and dated the 4 ^th November, 2008. The Polish domestic file reference number is XV K 98/03 and the Polish European...