Minister for Justice v Bednarczyk

JurisdictionIreland
JudgeMr Justice Edwards
Judgment Date05 April 2011
Neutral Citation[2011] IEHC 136
CourtHigh Court
Date05 April 2011

[2011] IEHC 136

THE HIGH COURT

Record No 101 EXT/No 2010
Record No 102 EXT/No 2010
Min For Justice v Bednarczyk
APPROVED
Mr. Justice Edwards
JUDGMENT
BETWEEN/
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Applicant

- AND -

WOJCIECH BEDNARCZYK
Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

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

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

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

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

MIN FOR JUSTICE v GORMAN UNREP PEART 22.4.2010 2010 IEHC 210

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

BEOKU-BETTS v SECRETARY OF STATE FOR THE HOME DEPT 2009 1 AC 115 2008 3 WLR 166 2008 4 AER 1146

H (Z)(TANZANIA) v SECRETARY OF STATE FOR THE HOME DEPT 2011 2 WLR 148

EUROPEAN ARREST WARRANT ACT 20032003 PART 3

B (E)(KOSOVO) v SECRETARY OF STATE FOR THE HOME DEPT 2009 AC 1159

UN DECLARATION ON THE RIGHTS OF THE CHILD 1959

UN CONVENTION ON THE RIGHTS OF THE CHILD 1989 ART 3.1

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

CONSTITUTION ART 29.3

CONSTITUTION ART 29.6

O'LAIGHLEIS, IN RE 1960 IR 93

UN CONVENTION ON THE RIGHTS OF THE CHILD 1989 ART 8(2)

AGBONLAHORE v MIN FOR JUSTICE 2007 4 IR 309

Abstract:

Criminal law - European Union law - European arrest warrant - Poland - Surrender- Objection - Family life - Privacy - Whether surrender would leave family without means of support and would warrant refusal of surrender - European arrest warrant Act 2003, as amended

Facts: The respondent was the subject of two European arrest warrants issued by Poland in respect of a single charge of theft. The issue arose as to to whether the surrender of the respondent was compatible with Article 8 ECHR. The respondent lived in Ireland since 2006 and was married with three children. He argued that his surrender would leave his family without any means of supporting themselves and that his children would be deprived of education in the Irish State, resulting in surrender being disproportionate and in breach of his right to respect for his privacy and family life.

Held by Edwards J. that the Court did not accept that the respondent's spouse and child could not reasonably be expected to follow him to Poland. The respondent had not discharged the evidential burden on him. The Court had taken his best interests and those of his children into account. The strongest case made by the respondent was in respect of possible educational disadvantage. In all the circumstances the Court was satisfied that it was not a breach of the respondent's right to family life to surrender him. The surrender was not prohibited by Part 3 of the Act of 2003.

Reporter: E.F.

1

JUDGMENT of Mr Justice Edwards delivered on the 5th day of April 2011

Introduction.
2

The respondent is the subject of two European Arrest Warrants issued by the Republic of Poland on the 25 th of March, 2008 and the 22nd of September, 2009, respectively. Both warrants were endorsed for execution by the High Court in this jurisdiction on the 10 th of March, 2010. The respondent was arrested by Garda Gary Ryan at Riverview, Ballinasloe, Co Galway on the 24 th of August 2010 on foot of the warrant dated the 22 nd of September, 2009 and was brought to Dublin to appear before the High Court on the 25 th of August 2010. On the 25 th of August 2010 he was arrested at the CCJ building in Dublin on foot of the warrant dated the 25 th of March, 2008. He was brought the High Court later that day on foot of both warrants pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the 2003 Act") and was remanded on bail pending a s. 16 hearing. The respondent does not consent to his surrender to the Republic of Poland on foot of either warrant. Accordingly, this Court is now being asked by the applicant to make Orders pursuant to s. 16 of 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

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 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. In so far as specific points of objection are concerned, the Court is required to consider a single specific objection to the respondent's surrender, namely:

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

Uncontroversial s. 16 issues
4

The Court has received an affidavit of Garda Gary Ryan sworn on the 26th of March, 2011 and has also received and scrutinised a copy of both European Arrest Warrants in this case. Moreover the Court has also inspected both original European Arrest Warrants which are on the Court's file and notes that each one bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

5

(a) the person before it is the person in respect of whom each of the relevant European Arrest Warrants was issued;

6

(b) the European Arrest Warrants have each been endorsed for execution in accordance with s. 13 of the 2003 Act;

7

(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.

8

The warrant dated the 25 th of March, 2008 is a prosecution type warrant and the respondent is wanted in the Republic of Poland for trial in respect of a single charge for an offence that the Court is satisfied would correspond in this jurisdiction with theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The relevant offence carries a potential penalty of up to 5 years imprisonment in Poland and accordingly the requirements in relation to minimum gravity are met.

9

The warrant dated the 22 nd of September 2009 is required to be read in conjunction with additional information supplied by the issuing judicial authority dated the 20 th of February, 2011. It is a sentence type warrant on foot of which the respondent is wanted in Poland to serve an outstanding sentence of eight months imprisonment imposed upon him by Local (or District) Court in Konskie on the 23 rd of November 2005 in respect of an offence that the Court is satisfied would correspond in this jurisdiction with making gain or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The Court is satisfied that the requirements of the 2003 Act with respect to minimum gravity are also met in terms of this warrant.

10

The Court is further satisfied that the European Arrest Warrant in this case is in the correct form. In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) (No 3) Order 2004, S.I. 206/2004 (hereinafter referred to as "the 2004 Designation Order"), and duly notes that by a combination of s 3(1) of the 2003 Act, and article 2 of, and the Schedule to, the 2004 Designation Order, "Poland" (or more correctly the Republic of Poland) is designated for the purposes of the 2003 Act as being a state that has under its national law given effect to the Framework Decision.

The s.38 objection
11

The evidence in support of the respondent's objections in both cases is contained in two more or less identical affidavits sworn by him on the 14 th of December 2010, and in a supplemental affidavit sworn by him on the 21 st of March 2011.

12

The respondent has deposed that in or about the 13th of May 2006 he came to Ireland and he has been here since then. He is a married man and his wife and three children, aged ten, eight and six, respectively, also reside in Ireland with him. He contends that they have settled down and made a life here.

13

He has sought to emphasise that he is a hard worker, has been more often in work than out of it and has been making a useful contribution to society here, all of which I have no hesitation in accepting. To that end, he has set out his employment record in some detail and has averred that he was employed by Frank Kelly builder from 29th of May 2006 until the 25th of August 2006. Thereafter he was employed by Cregg Brothers Limited from September of 2006 until May of 2007. He was then employed at Carlton Shearwater Hotel as a kitchen porter from October of 2007 until December 2007. Subsequent to that he was employed by Frank Byrnes Autobody Repairs, Clarenbridge, Co Galway from January of 2008 until February 2008. He then was employed by Cregg Stone from March 2008 until August of 2008 when he was let go due to a downturn in the business. He contends that he has been offered numerous...

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