Minister for Justice v EP

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 06 October 2015
• Neutral Citation: [2015] IEHC 662
• Court: High Court
• Date: 06 October 2015

[2015] IEHC 662

THE HIGH COURT

No. 122 EXT/2014

Min for Justice v P (E)

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

E.P.

RESPONDENT

Extradition – The European Arrest Warrant Act 2003 – EU Directive 2012/13/EU – Right to access to documents – Corresponding offences – Fair trial – Public interest

Facts: The applicant sought an order for surrender of the respondent to the Republic of Poland pursuant to the European Arrest Warrant Act. The respondent sought an order for requesting the Polish Prosecutor's Office to provide the evidence against the respondent pursuant to s. 20 (1) of the European Arrest Warrant Act 2003. The respondent alleged that the provisions of s. 45 of the said Act of 2003 had not been met.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that since the EAW in effect was to detain the respondent for the purpose of conducting criminal prosecution, it was not appropriate to consider whether matters provided for in part (d) of the said Act of 2003 had been completed. The Court observed that in order to establish correspondence of offences under the law of the State, the Court should not interpret the meaning of terms such as 'investigation', 'suspect', 'charge' and 'indictment' as given under domestic law because those words could carry a different meaning under the law of the requesting state. The Court held that it must consider the true intent of the judicial authority of the requesting state, which was the extradition of the persons accused of committing the crime in the interests of justice and for the common good. The Court held that the respondent's claim for the entitlement of case materials was misconceived as art. 7 of the EU Directive 2012/13/EU was not applicable to the persons arrested pursuant to EAW but applicable to the persons detained or suspected or accused in the domestic criminal proceedings.

1 JUDGMENT of Ms. Justice Donnelly delivered on the 6th day of October, 2015.

2 1. The surrender of the respondent is sought by the Republic of Poland pursuant to a European Arrest Warrant ("EAW") dated 5 ^th March, 2014. A number of substantive points of objection have been raised in this case, concerning s. 38, s. 21A and s. 37 of the European Arrest Warrant Act, 2003, as amended ("the Act of 2003"). The respondent has also raised the provisions of EU Directive 2012/13/EU of 22 ^nd May, 2012 on the right to information in criminal proceedings and he claims a right to be provided with the material evidence against him from the Polish criminal proceedings where he is a suspect.

The Background

3 2. The EAW states that it is issued by a competent judicial authority and requests that the person be arrested and surrendered "for the purposes of conducting a criminal prosecution." At part (b) of the EAW, under the heading "Decision on which the warrant is based", the EAW lists (i) a decision made by the District Court in Nowy Sacz on 18 ^th November, 2009 which became enforceable on 26 ^th November, 2009 and (ii) the decision made by the District Court in Nowy Sacz on 18 ^th July, 2013 which became enforceable on 26 ^th July, 2013.

4 3. The EAW recites at part (e) that the warrant relates to five offences in total. Under the description of the circumstances in which the offences were committed, set out at E.2 of the EAW, it is stated that E.P. "is suspected of committing the following crimes". The first two allegations relate to the sale of amphetamine to a named individual [R.P.] for a specific amount knowing that the substances would be further sold. The third alleges that he sold amphetamine and cocaine for a specific amount to the same named person knowing that the substances would be further sold. The fourth alleges that he "provided MM with support in participating in trafficking intoxicating substances as he passed on the order he received from R.P. (passed on to him by M.P.) to M.M., who then sold intoxicating substances, namely 5 grams of cocaine for the amount of PLN 1,000 to R.P., knowing that the substances will be further sold".

5 4. The final alleged offence is that "on the unknown date in 2005, before 5 ^th May 2006, in Nowy Sacz, in order to obtain material gain, having first referred to his connection in a state institution, namely the organ granting driving licences - Malopolska Center of Road Traffic in Nowy Sacz - and undertaking to act as an intermediary, in return for material benefits, he tried to obtain under false pretences the amount of PLN 600 from [S.T.], promising she would obtain a driving licence. However, he did not achieve his intended goal, as [S.T.] failed the driving test."

6 5. It is not overstating matters to comment that the drafting of the EAW left a lot to be desired. Prior to presenting the EAW to the High Court for endorsement, quite properly the central authority sought further information in relation to it. Those matters will be referred to later in this judgment.

7 6. The EAW was endorsed for execution in this jurisdiction on 24 ^th June, 2014. The respondent was arrested on 15 ^th August, 2014, he was released on bail and his case was remanded from time to time and duly came on for hearing on 25 ^th June, 2015 and was adjourned for further hearing to 29 ^th July, 2015.

A Member State that has given effect to the 2002 Framework Decision

8 7. The surrender provisions of the Act of 2003 applied to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given affect to the Framework Decision of 13 ^th June, 2002 on the European Arrest Warrant and surrender procedures between Member States ("the 2002 Framework Decision"). By the European Arrest Warrant Act 2003 (Designated Member States) (No. 3) Order, 2004 ( S.I. 206 of 2004), the Minister for Foreign Affairs has designated Poland as a Member State for the purposes of the Act of 2003 (more correctly referred to as the Republic of Poland).

Section 16 (1) of the Act of 2003

9 8. Under the provisions of s. 16 (1) of the Act of 2003 is amended, the High Court, may make an order directing that the person be surrendered to the issuing state provided that:

10 a) the High Court is satisfied that the person before it is the person in respect of whom the EAW is issued,

11 b) the EAW, or a true copy thereof, has been endorsed in accordance with s. 13 for execution,

12 c) the EAW states, where appropriate, the matters required by s. 45,

13 d) the High Court is not required, under s. 21A, 22, 23 or 24 of the Act of 2003 is amended to refuse surrender,

14 e) the surrender of the person is not prohibited by Part 3 of the Act of 2003 as amended.

Identity

15 9. I am quite satisfied on the basis of the affidavit of Garda John Butler, the affidavit of the respondent, and the details set out in the EAW that E.P., who appears before me, is the person in respect of whom the EAW has issued.

Endorsement

16 10. I am satisfied having examined the EAW, that the EAW has been endorsed for execution in accordance with s. 13 of the Act of 2003.

Sections 22, 23 and 24

17 11. I am quite satisfied having read the warrant, the additional information and all other documentation placed before me, that surrender is not prohibited by any of the above sections of the Act of 2003 as amended.

Part 3 of the Act of 2003 as amended

18 12. Part 3 of the Act of 2003 comprises s. 37 - 46 inclusive. As stated above, the respondent raised issues under s. 37 and s. 38 in his points of objection. I have scrutinised the EAW, the additional information, the points of objection and verifying affidavits and exhibits in carrying out my role as executing judicial authority in ensuring that the requirements of the Act of 2003 are fulfilled. Subject to further consideration of s. 37, s. 38 and s. 45, I am quite satisfied on the basis of my scrutiny that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act as amended.

Section 45

19 13. Pursuant to the provisions of s. 16 (1) of the Act of 2003, before the court may make an order of surrender, the court must be satisfied that the EAW states the matters required by s. 45 "where appropriate". In the EAW under consideration, the issuing judicial authority completed certain aspects of part (d). The issuing judicial authority did not complete the new part (d) set out in the 2009 Framework Decision 2009/299/JHA of 26 ^th February, 2009 on the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial ("the 2009 Framework Decision"). Instead, the issuing judicial authority stated, in answer to a question as to whether the person has been summoned in person to the hearing, that "[n]o, the person concerned has not appeared in person at the hearing which led to the decisions rendered, that is the decisions in case file number II Kp 323/09 and case file Number II Kp 11/13." Part (d) in the form provided in the 2009 Framework Decision refers to "a person [who] did not appear at the trial resulting in the decision." (emphasis added).

20 14. Clarification was sought by the central authority on 2 ^nd December, 2014 as to whether the EAW was issued for the purposes for prosecution or conviction. That request queried why part (d) of the warrant was completed if he was wanted for prosecution. Furthermore, as the EAW referred on one occasion to the respondent as "convict", clarification was sought as to why. The issuing judicial authority replied on 3 ^rd December, 2014 that the EAW had been issued for the purposes of prosecution. The issuing judicial authority thereafter stated "[h]owever, during the procedure [the District Court]...