Minister for Justice v A.P.L.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 17 June 2015
• Neutral Citation: [2015] IEHC 458
• Court: High Court
• Docket Number: [2013 No. 194 EXT]
• Date: 17 June 2015

[2015] IEHC 458

HIGH COURT

Donnelly J.

[2013 No. 194 EXT]

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

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

A.P.L.

RESPONDENT

Crime & Sentencing – Extradition – European Arrest Warrant Act, 2003 – European Convention on Human Rights – Family considerations – Fair procedures

Facts: The Republic of Poland sought an order for the surrender of the respondent due to revocation of his conditional release wherein his sentence was suspended for three years. The respondent had one year remaining at the time of release. The respondent contended that his surrender was prohibited either by s. 45 or s. 37 of the European Arrest Warrant Act, 2003 that the sentence was reactivated in his absence by the domestic court. The respondent also alleged that his surrender would impede his family life under art. 8 of the European Convention on Human Rights as he had a settled life in Ireland with the respondent taking care of his two children during the day owing to the full-time employment of his partner.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that in the absence of any clear authority, the provisions of s. 45 of the European Arrest Warrant Act, 2003 applied to proceedings wherein a person appeared in person at the trial that resulted in his detention order in relation to which a European Arrest Warrant had been issued. The Court refuted that contention of the respondent that his family life would be affected under art. 8 of the European Convention on Human Rights as the interests of justice required that a person such as the respondent having been convicted of 15 offences of serious nature and gravity must be committed to prison. The Court found that failure to put an accused on notice of the revocation of his conditional release would not be in violation of the fair procedure if the accused had violated the probation conditions and the trial and detention orders were made in his presence and full participation.

JUDGMENT of Ms. Justice Donnelly delivered the 17th day of June, 2015

1 The surrender of the respondent is sought by the Republic of Poland pursuant to a European Arrest Warrant ('EAW') dated 15th December, 2009. A central issue in these proceedings is whether his surrender is prohibited, either by section 45 or section 37 of the European Arrest Warrant Act, 2003 as amended ('the Act of 2003'), on the ground that his suspended sentence was reactivated in his absence by the domestic court.

The background to the EAW

2 On the 7th December, 1998, the respondent was sentenced in the Republic of Poland to 15 years imprisonment in relation to a total of 15 offences. These offences are set out at section (e) of the warrant. That sentence was appealed and by order dated the 21st September, 2000, the sentence was reduced to one of 10 years imprisonment. On the 20th September, 2004, the court ordered that the respondent be released on certain conditions. It is a fair characterisation to say that he was required to remain under the supervision of a probation officer.

3 At the time of release, a year remained of the sentence. The period for which the sentence was suspended was one of three years. The period of suspension was therefore due to last until September, 2007. On the 29th December, 2006, that conditional release was revoked in circumstances that will be discussed in more detail later in this judgment. The basis for the revocation can be described at this point as non-compliance with probation supervision. On the 16th January, 2007, that revocation of release was declared final and irrevocable.

4 On the 21st September, 2009, a national arrest warrant issued. In October of 2009, the regional prosecutor applied for an EAW. The EAW was issued by the Regional Court in Warsaw on the 15th December 2009. The EAW was received in this State on the 19th April, 2013. It was endorsed for execution on the 31st July, 2013, by the High Court.

5 In due course, the respondent's presence in this jurisdiction came to the attention of the relevant authorities when he was stopped in Waterford by a traffic corps Garda on 1st June, 2014. The respondent was arrested on the 2nd June, 2014 and was granted bail by this Court on the 5th June, 2014. Thereafter, he was remanded on bail from time to time until the determination of the s. 16 hearing into whether he should be surrendered to the Republic of Poland.

A Member State that has given effect to the Framework Decision

6 The surrender provisions of the Act of 2003 apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States ('the 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 (more correctly the Republic of Poland) as a Member State for the purposes of the Act of 2003.

Section 16(1) of the Act of 2003

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

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

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

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

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

e) the surrender is not prohibited by Part 3 of the Act of 2003.

Identity

8 I am satisfied on the basis of the affidavit of Ciaran Casey, member of An Garda Síochána, the affidavit of the respondent, and the details set out in the EAW that the respondent, A.P.L., who appears before me is the person in respect of whom the EAW has issued.

Endorsement

9 I am satisfied that the EAW has been endorsed in accordance with s. 13 for execution.

Sections 21A, 22, 23 and 24 of the Act of 2003

10 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse his surrender under the above provisions of the Act of 2003.

Part 3 of the Act of 2003

11 Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003 and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

The provisions of s. 38

12 The issuing judicial authority has not indicated that these are offences to which Article 2 para. 2 of the Framework Decision applies. Therefore, it is necessary to establish double criminality or correspondence of offences. Under the relevant part of s. 38(1)(a) of the Act of 2003 a person shall not be surrendered to an issuing state in respect of an offence unless (a) the offence corresponds to an offence under the law of the state, and (b) that a term of imprisonment of not less than four months has been imposed on the respondent in respect of the offence in Poland and that the respondent is required under the law of Poland to serve all or part of that term of imprisonment.

13 In this case, it is clear that the minimum gravity terms have been met insofar as a composite sentence of ten years has been imposed covering all the offences and the respondent is required to serve the remaining part of that term of imprisonment.

14 On the 8th January, 2015, pursuant to a practice direction issued by the High Court in relation to EAW matters, the Chief State Solicitor sent a letter to the solicitor for the respondent setting out the offences upon which it proposed to rely for establishing correspondence in the jurisdiction. It is not necessary to set out the details of each of the offences for which he is sought. In relation to 14 out of the 15 offences, it is uncontroverted and incontrovertible that the facts alleged in the warrant correspond with offences in this jurisdiction. Dealing with the offences in the order in which they are set out in the warrant, I find as follows:

Offence	Corresponding Offence
Offence 1	Assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997 ('Section 2 assault')
Offence 2	Section 2 assault
Offence 3	Section 2 assault
Offence 4	Section 2 assault
Offence 5	Robbery pursuant to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001
Offence 6	Section 2 assault
Offence 7	Section 2 assault
Offence 8	Section 2 assault
Offence 9	Section 2 assault
Offence 10	Section 2 assault
Offence 11	Section 2 assault
Offence 12	Section 2 assault
Offence 13	Section 2 assault
Offence 14	This is a matter which will be discussed in more detail below
Offence 15	Assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997

15 In the EAW, count 14 was described in the following manner: 'on 19th August, 1995, in Warsaw at crossroad of Grójecka and Kopinska Streets, he insulted a citizen of Zimbabwe – Leo Bhebhe using abusive language; it means an offence against article 216 – 1 penal code.'

16 In his points of objection, the respondent objected to his surrender, inter alia, on the ground that this offence failed to comply with s. 5 and s. 11 of the Act of 2003 and Article 8 of the Council Framework decision, i.e. this offence did not correspond to an offence in this country. The Central Authority subsequently wrote to the Polish judicial authorities seeking further detail of the abusive language used by the respondent and the circumstances surrounding...