Minister for Justice v Siwy

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 22 June 2011
• Neutral Citation: [2011] IEHC 252
• Date: 22 June 2011
• Court: High Court

[2011] IEHC 252

THE HIGH COURT

Record No.: 43 EXT/2010

Min for Justice v Siwy

APPROVED

Mr. Justice Edwards

JUDGMENT

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

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

- AND -

MAREK SIWY

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

KAUCZOR v POLAND UNREP ECHR 3.2.2009 APPLICATION NO. 45219/06

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN ARREST WARRANT ACT 2003 S3

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(C)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S21(A)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S22

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S23

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S24

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S81

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S82

POLISH PENAL CODE ART 148.1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S45

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

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

MIN FOR JUSTICE v RETTINGER UNREP SUPREME 23.7.2010 2010/36/8976 2010 IESC 45

ORCHOWSKI v POLAND UNREP ECHR 22.10.2009 APPLICATION NO. 17885/04

EUROPEAN ARREST WARRANT ACT 2003 S37

MIN FOR JUSTICE v SAWCZUK UNREP EDWARDS 4.2.2011 2011 IEHC 41

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204

POLISH PENAL CODE ART 4

POLISH PENAL CODE ART 102

POLISH PENAL CODE ART 103

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S20(1)

POLISH PENAL CODE ART 250(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 46

EXTRADITION LAW

European arrest warrant

Prosecution for murder - Points of objection - Delay in prosecution - Imposition of pre-trial detention - Risk of breach of fundamental rights -Inhuman and degrading prison conditions - Evidence on behalf of respondent - Additional information provided by respondent - Additional information provided by issuing state - Objection based on prison conditions - Presumption that issuing state will respect rights of respondent - Whether sufficient evidence of cogent nature to rebut presumption - Objection based on anticipated pre-trial detention - Whether real risk of excessive pre-trial detention - Principles - Presumption that issuing state will respect rights of respondent - Objectives of system of surrender - Whether real risk of ill-treatment - Level of danger to which respondent is exposed - Evidential burden of adducing cogent evidence - Foreseeable consequences of sending person to issuing state - Reports of independent international human rights organisations - Kauczor v Poland (No 45219/06); Orchowski v Poland (No 17885/04); Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45; (Unrep, SC, 23/7/2010); Minister for Justice, Equality and Law Reform v Sawczuk [2011] IEHC 41, (Unrep, Edwards J, 4/2/201 ); Minister for Justice, Equality and Law Reform v Mazurek (Unrep, Edwards J, 13/5/2011); Jablonski v Poland (No 33492/96); Jakubiak v Poland (No 39595/05); Kucharski v Poland (No 51521/99); Broniowski v Poland (No 31443/96); Scordino v Italy (No 36813/97); Bottazzi v Italy (No 34884/97) and Minister for Justice, Equality and Law Reform v Stapleton [2008]1 IR 669 considered - Surrender ordered (2010/43EXT - Edwards J - 22/6/2011) [2011] IEHC 252

Minister for Justice, Equality and Law Reform v Siwy

1 JUDGMENT of Mr. Justice Edwards delivered on the 22nd day of June, 2011

Introduction

2 The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 28th of July, 2009. The warrant was endorsed for execution in this jurisdiction by the High Court on the 5th of February, 2010. The respondent was arrested on the 13 ^th of April, 2010, and brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act 2003, as amended, (hereinafter referred to as "the Act of 2003"). The respondent does not consent to his surrender to the Republic of Poland. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so.

3 The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as no admissions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied. In addition the Court is required to consider in the particular circumstances of this case a number of specific objections to the respondent's surrender, namely, those pleaded at paragraphs VI & VII respectively of the Points of Objection filed on the respondent's behalf, which are in the following terms:

4 i "VI. If surrendered, the Respondent would face further lengthy delay in the prosecution of his case, and the imposition of pre-trial detention during that time, which would breach the Respondent's rights under Articles 5 and 6 of the European Convention on Human Rights. The Respondent is at real risk of a violation of these fundamental rights, and will rely on the recent observations of the European Court of Human Rights in respect of delay in Poland in Kauczor v. Poland (Application Number 45219/06, 3'd May, 2009). The risk is such that the Respondent's surrender to Poland is prohibited by section 37 of the European Arrest Warrant Act 2003 (as amended).

5 VII The Respondent will be placed in custody in the Polish prison system on his surrender to Poland, and will be imprisoned if convicted, such that surrender is prohibited by section 37 of the European Arrest Warrant Act 2003 (as amended) because of the inhuman and degrading conditions, including systemic overcrowding, in Poland's prisons which are such that:

6 (a) there are substantial grounds for believing that the Respondent is at real risk of exposure to inhuman or degrading treatment, and overcrowding, if returned to Poland such that his surrender would violate the Applicant's duties under section 37(1)(a) of the European Arrest Warrant Act 2003 (as amended), Articles 3 and or 8 of the European Convention on Human Rights, and section 3 of the European Convention on Human Rights Act 2003;

7 (b) the risk of the Respondent being exposed to inhuman or degrading treatment in Poland's prisons is such that his surrender would be in breach of the Applicant's duties and the Respondent's rights under the Constitution and therefore in breach of section 37(1)(b) of the European Arrest Warrant Act 2003 (as amended);

8 (c) there are reasonable grounds for believing that were the Respondent to be surrendered to Poland that he would be subjected to inhuman or degrading treatment, such that his surrender would be in breach of section 37(1)(c) of the European Arrest Warrant Act 2003 (as amended).

9 The Respondent shall rely inter alia on the recent assessment by the European Court of Human Rights of the systemic overcrowding in Poland's prisons in its judgment in Orchowski v. Poland (Application Number 17885/04, 2211d October, 2009)."

10 In essence the respondent contends that in all the circumstances of the case his surrender is prohibited by Part 3 of the Act of 2003, and/or by the Framework Decision (including the recitals thereto).

Uncontroversial s. 16 issues

11 The Court has received an affidavit of Garda Michael O'Brien sworn on the 4th of May 2010 and has also received and scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest Warrant which is on the Court's file and which bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

12 (a) the person before it is the person in respect of whom the European arrest warrant was issued;

13 (b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;

14 (c) the European arrest warrant in this case is in the correct form.

15 (d) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the Act of 2003.

16 The respondent is wanted for prosecution in respect of one offence of murder contrary to article 148.1 of the Polish Penal Code, the particular circumstances of which are set out at paragraph 2 of Part E of the European arrest warrant. In that regard the issuing judicial authority seeks to rely upon paragraph 2 of Article 2 of the Framework Decision and the box relating to "murder/grevious bodily harm" has been ticked in Part E.1. of the warrant. It is clear from paragraph 1 of Part C of the warrant that an offence under article 148.1 of the Polish Penal...