Minister for Justice v Ciechanowicz

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 18 March 2011
• Neutral Citation: [2011] IEHC 106
• Court: High Court
• Date: 18 March 2011

[2011] IEHC 106

THE HIGH COURT

Record No 120 EXT/No 2009

Minister for Justice v Ciechanowicz

APPROVED

Mr. Justice Edwards

JUDGMENT

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

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant

-AND-

WOJCIECH PAWEL CIECHANOWICZ

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 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

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001 S14

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S9

CRIMINAL LAW ACT 1976 S12

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001 S4

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

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

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

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S6

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

MIN FOR JUSTICE v TOBIN 2008 4 IR 42

MIN FOR JUSTICE v STANKIEWICZ UNREP 1.12.2009 2009/40/9821 2009 IESC 79

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

MIN FOR JUSTICE v SLONSKI 2010 2 ILRM 387 2010 IESC 19

MIN FOR JUSTICE v MCCAGUE 2010 1 IR 456 2008/41/8912 2008 IEHC 154

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.1

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(i)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(ii)

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

MIN FOR JUSTICE v GORMAN UNREP PEART 22.4.2010 2010 IEHC 210

AGBONLAHOR v MIN FOR JUSTICE & ORS 2007 4 IR 309 2007/3/447 2007 IEHC 166

MIN FOR JUSTICE v MAREKA & MIZIAK UNREP PEART 14.10.2010 2010 IEHC 402

MIN FOR JUSTICE v PUSKAS UNREP EDWARDS 4.3.2011 2011 IEHC 80

MIN FOR JUSTICE v GHEORGHE UNREP SUPREME 18.11.2009 2009/39/9656 2009 IESC 76

Abstract:

Criminal law - European Union law - European arrest warrant - Poland - Fled - Evade justice - In absentia - Revocation of suspension of sentence - Discharge of burden of proof - Article 8 ECHR - European arrest warrant Act 2003, as amended

Facts: The respondent was the subject of a European arrest warrant issued by Poland. The question arose as to whether the requirements of s. 10(d) of the European arrest warrant Act 2003, as amended were fulfilled in respect of whether the respondent had "fled" Poland, whether the surrender was prohibited by s. 45 of the Act of 2003 by reason of a trial having taken place in absentia and whether the surrender was in breach of Article 8 ECHR. The respondent contended that he did not flee Poland to evade justice and that suspensions of sentences imposed on him were revoked in his absence and that he was not notified of those hearings. He contended that surrender would impact disproportionately on his family life.

Held by Edwards J. that the respondent had not discharged the heavy onus on him that he did not flee Poland and that he did not leave Poland with a view to evading justice. The respondent could not complain that he was not notified. The surrender was being sought for a legitimate aim, namely to serve out the sentences imposed on him. Surrender was proportionate in the circumstances. There was no question of a failure to respondent the respondent's Article 8 ECHR rights. Surrender was not prohibited pursuant to Part 3 of the Act of 2003.

Reporter: E.F.

1 JUDGMENT of Mr Justice John Edwards delivered on the 18th day of March 2011

Introduction:

2 The respondent is the subject of a European Arrest Warrant issued by the Republic of Poland on the 29 ^th of April, 2009. The warrant was endorsed for execution by the High Court in this jurisdiction on the 13 ^th of May, 2009. The respondent was arrested at the District Courthouse, Kilcock, Co Kildare on the 29th of January 2010 but 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 European Arrest Warrant Act, 2003 as amended (hereinafter referred to as "the 2003 Act") 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 having regard to the terms of s.16 of the 2003 Act.

3 In that regard the respondent has put the applicant on full proof as regards the requirements of s. 16 aforesaid. In addition the Court is required to consider in the particular circumstances of this case three specific objections to the respondent's surrender, namely:

4 (i) whether, the requirements s. 10 (d) of the 2003 Act (as it was prior to the amendments effected by the Criminal Justice (Miscellaneous Provisions) Act, 2009) have been satisfied;

5 (ii) whether the respondent's surrender is prohibited by s. 45 of the 2003 Act in circumstances where he alleges that a hearing at which the suspension of sentences that had been imposed upon him was revoked, and for which hearing he claims not to have been present, constituted a trial of him in absentia;

6 (iii) whether the surrender of the respondent would be incompatible with the State's obligations under the European Convention on Human Rights, in particular the right to respect for his private and family life under Article 8.

Uncontroversial s. 16 issues

7 The applicant has been put on full proof by the respondent. Accordingly, as no admissions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the 2003 Act, 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.

8 The Court has received an affidavit of Detective Sergeant Aidan Hannon sworn on the 8th of March, 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:

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

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

11 (c) 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 2003 Act.

12 The warrant is a sentence type warrant and the respondent is wanted in the Republic of Poland to serve outstanding sentences in respect of eight offences (particularised in the warrant with reference to four prosecution file reference numbers, namely file VI K 1261/04; file II K 61/04, file II K 10/05 and file II K 43/05) imposed upon him on various dates by the Regional Court in Glogów between January 2005 and March 2005. The sentences imposed and the periods remaining to be served were as follows:

13 File VI K 1261/04 - 1 year imposed with 1 year remaining to be served;

14 File II K 61/04 - 1 year and 2 months imposed with 1 year, 1 month and 28 days remaining to be served;

15 File II K 10/05 - 8 months imposed with 8 months remaining to be served;

16 File II K 43/05 - 10 months imposed with 10 months remaining to be served.

17 The Court is further satisfied that the European Arrest Warrant in this case is in the correct form, and that the requirements of the statute with respect to correspondence and minimum gravity are met. Although a specific objection based upon an alleged lack of correspondence is pleaded in the respondent's points of objection this was not proceeded with at the hearing, the respondent being content to leave it on the basis that correspondence is not conceded and the applicant is therefore put on proof of correspondence. Counsel for the applicant, Ms Siobhàn Stack, sought in each instance to demonstrate correspondence with particular offences in this jurisdiction, and has satisfied this Court accordingly. Nevertheless it is appropriate in the circumstances of the case that the Court should indicate the basis on which it is satisfied as to correspondence.

18 File VI K 1261/04 relates to one offence corresponding to the offence of burglary in this jurisdiction. File II K 61/04 relates to two offences corresponding to assault causing harm contrary to s.3 of the Non Fatal Offences Against the Person Act, 1997, and robbery contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, respectively. File II K 10/05 relates to three offences corresponding to coercion contrary to s.9 of the Non Fatal Offences Against the Person Act, 1997; making a false report contrary to s. 12 of the Criminal Law Act, 1976; and perjury contrary to common law / alternatively making a false report contrary to s. 12 of the Criminal Law Act, 1976, respectively. File II K 43/05 relates to two offences each corresponding to theft contrary to s.4 of the Criminal Justice (Theft and Fraud...