Minister for Justice v Staniak

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 22 November 2012
• Neutral Citation: [2012] IEHC 508
• Court: High Court
• Date: 22 November 2012

[2012] IEHC 508

THE HIGH COURT

Record No.: 133 EXT/2012

Min for Justice v Staniak

No Redaction Needed

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

KAROL STANIAK

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

MISUSE OF DRUGS ACT 1977 S15

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

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 PART III

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

CONSTITUTION ART 40

RSC O.98 r5

WAN v CONROY 1998 3 IR 527 2000/17/6641

O'KEEFFE v O'TOOLE 2008 1 IR 227

MIN FOR JUSTICE v TOBIN UNREP SUPREME 19.6.2012 2012 IESC 37

EXTRADITION ACT 1965 S50(2)(BBB)

EUROPEAN ARREST WARRANT ACT 2003 S50

HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313 1843-60 AER 378

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

JOHNSON v GORE WOOD & CO (A FIRM) (NO 1) 2002 2 AC 1 2001 2 WLR 72 2001 1 AER 481

WOODHOUSE v CONSIGNIA PLC; STELIOU v COMPTON 2002 1 WLR 2558 2002 2 AER 737 2002 CP REP 42

GAIRY & ANOR v AG OF GRENADA 2002 1 AC 167 2001 3 WLR 779

VANTIVE HOLDINGS & ORS, IN RE 2010 2 IR 118 2009/57/14518 2009 IESC 69

GREENDALE DEVELOPMENTS LTD, IN RE (NO 3) 2000 2 IR 514 2001 1 ILRM 161 2000/9/3223

HAMBURG PUBLIC PROSECUTORS OFFICE (GERMANY) v ALTUN 2011 AER (D) 25 (MAR) 2011 EWHC 397 (ADMIN)

BOLGER v O'TOOLE & ORS UNREP SUPREME 2.12.2002 2002/4/725

MIN FOR JUSTICE v O FALLUIN (ORSE FALLON) 2011 2 ILRM 1 2010/35/8816 2010 IESC 37

MIN FOR JUSTICE v KONCIS UNREP SUPREME 29.7.2011 2011/36/10170 2011 IESC 37

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S6

CONSTITUTION ART 40.3.1

ART 26 OF THE CONSTITUTION & OFFENCES AGAINST THE STATE (AMDT) BILL 1940, IN RE 1940 IR 470 1940 74 ILTR 61

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 40.3

MIN FOR JUSTICE v BEDNARCZYK UNREP EDWARDS 5.4.2011 2011/36/9982 2011 IEHC 136

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

MIN FOR JUSTICE v MACHACZKA UNREP EDWARDS 12.10.2012 2012 IEHC 434

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 26

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EXTRADITION LAW

European Arrest Warrant

Correspondence - Alleged double jeopardy - Age of offence - Strong personal and family ties in jurisdiction - Whether surrender would violate Constitution and Convention - Previous warrants - Rules on pleading points of objection - Possibility of subsequent attempts to extradite - Absence of substantive ruling in favour of respondent - Absence of oppression - Proportionality - Whether exceptional circumstances justifying non-surrender - Family not based on marriage - Right to liberty - Abrogation of right in accordance with law - Kwok Ming Wan v Conroy [1998] 3 IR 527; O'Keeffe v O'Toole [2008] IR 227; Minister for Justice, Equality and Law Reform v Tobin [2012] IESC 37, (Unrep, SC, 19/6/2012); Henderson v Henderson (1843) 3 Hare 100; AA v Medical Council [2003] 4 IR 302; Johnson v Gore Wood and Company [2002] 2 AC 1; Woodhouse v Cosignia PLC [2002] 1 WLR 2258; Gairy v Attorney General of Granada [2002] 1 AC 167; Re Vantive Holdings [2009] 2 IR 118; Re Greendale Developments Ltd [2000] 2 IR 514; Hamburg Public Prosecutors Office v Altun [2011] EWHC 397; State (Quinn) v Ryan [1965] IR 70; State (O'Callaghan) v hUadhaigh [1977] IR 42; Bolger v O'Toole (Unrep, SC, 2/12/2002); Minister for Justice, Equality and Law Reform v O Fallúin [2010] IESC 37, (Unrep, SC, 19/5/2010); Minister for Justice, Equality and Law Reform v Koncis [2011] IESC (Unrep, SC, 29/7/2011); Re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940] IR 470; Minister for Justice, Equality and Law Reform v Bednarczyk [2011] IEHC 137, (Unrep, Edwards J, 5/4/2011) and Minister for Justice, Equality and Law Reform v Machaczka [2012] IEHC 434, (Unrep, Edwards J, 12/10/2012) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 98, r 5 - European Arrest Warrant Act 2003 (No 45) - Surrender ordered (2012/133EXT - Edwards J - 22/11/2012) [2012] IEHC 508

Minister for Justice and Equality v Staniak

Facts: The respondent was the subject of a European arrest warrant that was issued by Poland on the 20th March 2012 due to alleged drugs offences he had committed there some nine years previous. He refused to surrender to Polish authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003.

It was the respondent's contention that he should not be surrendered to Poland because it would be in breach of his Constitution and European Convention rights. The respondent had been resident in Ireland for nine years during which time he had developed strong family and community ties. It was also pointed out that the respondent was the subject of two arrest warrants by the Polish authorities in April 2010 and November 2011, one of which was related to the offences in the current warrant, but were withdrawn without explanation. Finally, it was contended that his surrender would be disproportionate and unfair in all the circumstances.

The respondent had submitted that due to the nine year delay in issuing a European arrest warrant as well as the previous withdrawn warrants, it would now be an abuse of process to allow him to be surrendered to the Polish authorities. Edwards J held that an abuse of process could be described as an imbalance between prosecution and accused so improper that it could be considered unfair. In the present case, the fact that there had been two withdrawn arrest warrants did not necessarily mean there was an abuse of process as it depended very much on the circumstances of the case. The court found that there had been legitimate reasons for the course of action by the Polish authorities. In the first instance, the warrant had contained the drugs offence charge and two public order charges but after representations made on behalf of the respondent in the Polish court, the public order offences were removed and the European arrest warrant process was restarted. In the second instance, the public order offences were erroneously part of the warrant which was eventually withdrawn as well. The third and current warrant contained only the drugs offence. It had been indicated throughout when a warrant was being withdrawn that a fresh one would be forthcoming. As such, it could not be considered unfair to refuse to surrender the respondent on that basis.

It was further held that on the ground that there would be a breach of the respondent's Constitutional and Convention rights, there was nothing to suggest he had been subjected to oppression and whilst worry and anxiety had been alleged, no medical evidence had been forthcoming. It would therefore not be disproportionate to apply an order pursuant to s. 16 of the European Arrest Warrant Act 2003. There was also nothing advanced that could be considered exceptional circumstances to justify non-surrender under his right to a family life under Article 8 of the Convention.

Order made pursuant to s. 16 of the European Arrest Warrant Act 2003 surrendering the respondent to the issuing state.

1 JUDGMENT of Mr Justice Edwards delivered on the 22nd day of November, 2012

Introduction:

2 The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 20th March, 2012. The warrant was endorsed by the High Court for execution in this jurisdiction on the 17th April, 2012 and it was duly executed on the 24th April, 2012. The respondent was arrested by Sgt. James Kirwan on that date, following which he was brought before the High Court later on the same day pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time ultimately coming before the Court on the 9 ^th November. 2012 for the purposes of a surrender hearing.

3 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. The Court must consider 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.

Uncontroversial s. 16 issues:

4 The Court has received an affidavit of Sgt. James Kirwan sworn on the 8 ^th November, 2012 and has received and scrutinised a true 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. In addition, counsel for the respondent has confirmed that...