Minister for Justice v Ciesielski

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 15 February 2013
• Neutral Citation: [2013] IEHC 101
• Court: High Court
• Date: 15 February 2013

[2013] IEHC 101

THE HIGH COURT

Record No.: 317/2011 EXT

Min for Justice v Ciesielski

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

MARIUSZ CZESLAW CIESIELSKI

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

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

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8(1)(C)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(F)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72

EUROPEAN ARREST WARRANT ACT 2003 S5

EUROPEAN ARREST WARRANT ACT 2003 S38

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S17

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(4)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4(1)

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S6

EUROPEAN ARREST WARRANT ACT 2003 S22

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

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

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 8

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 7

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 14

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 15

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 24

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 33

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 45

PENAL CODE OF THE REPUBLIC OF POLAND ART 178A(1)

PENAL CODE OF THE REPUBLIC OF POLAND ART 178A(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4A(1)(A)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4A(1)(C)(II)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S10

MIN FOR JUSTICE, EQUALITY AND LAW REFORM v SERDIUK UNREP PEART 11.6.2010 2010 /36/9015 2010 IEHC 242

MIN FOR JUSTICE v TOKARSKI UNREP EDWARDS 9.3.2012 2013 5 ICLMD 35 2012 IEHC 148

MIN FOR JUSTICE v TOKARSKI UNREP SUPREME 6.12.2012 2012 IESC 61

EUROPEAN ARREST WARRANT ACT 2003 S45

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

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

MIN FOR JUSTICE v MARJASZ UNREP EDWARDS 24.4.2012 2012 IEHC 233

MIN FOR JUSTICE, EQUALITY AND LAW REFORM v PETRASEK UNREP EDWARDS 16.5.2012 2012 IEHC 212

MIN FOR JUSTICE, EQUALITY AND LAW REFORM v OSTROWSKI UNREP EDWARDS 8.2.2012 2012 IEHC 57

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EXTRADITION

European arrest warrant

Surrender - Offences - Correspondence - Activation of suspended sentence - Trial in absentia - Whether actual notification of trial - Whether respondent fled from charges - Whether undertaking as to retrial given - Minister for Justice v Serdiuk [2010] IEHC 242, (Unrep, Peart J, 11/6/2010), Minister for Justice v Tokarski [2012] IEHC 148, (Unrep, Edwards J, 9/3/2012); Minister for Justice v Tokarski [2012] IESC 61, (Unrep, SC, 6/12/2012) and Minister for Justice v Petrasek [2012] IEHC 212, (Unrep, Edwards J, 16/5/2012) followed - Minister for Justice v Sliczynski [2008] IESC 73, (Unrep, SC, 19/12/2008); Minister for Justice v Marjasz [2012] IEHC 233, (Unrep, Edwards J, 24/4/2012) and Minister for Justice v Ostrowski [2012] IEHC 57, (Unrep, Edwards J, 8/2/2012) considered - European Arrest Warrant Act (Designated Member States) (No 3) Order 2004 (SI 206/2004) - Road Traffic Act 1961 (No 24), s 49 - Road Traffic Act 1994 (No 7), s 10 - European Arrest Warrant Act 2003 (No 45), ss 3, 5, 10, 11, 13, 16, 22, 37, 38 and 45 - Criminal Justice (Terrorist Offences) Act 2005 (No 2), ss 72 and 80 - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 28), ss 6 and 17 - European Union Council Framework Decision 13/6/2002, arts 2, 4, 7, 8, 14, 15, 24, 33 and 45 - European Convention on Human Rights 1950, art 8 - Surrender refused (2011/317EXT - Edwards J - 15/2/2013) [2013] IEHC 101

Minister for Justice and Equality v Ciesielski

Facts: The surrender of the applicant to Poland to serve a year imprisonment relating to an offence of driving under the influence of alcohol. His sentence had been suspended and it was alleged that he had a committed a similar offence during the suspension period. He alleged that if he was to be surrendered to Poland that this would be a disproportionate interference with the constitutional and Convention rights of his family pursuant to Article 8 ECHR. He alleged that he had not been present for his trial and that the undertaking required from the issuing state as to a retrial had not been forthcoming, thereby operating to prohibit his surrender, pursuant to s. 45 European arrest warrant Act, 2003, as amended.

Held by Edwards J. that the Court had to uphold the objection made as to the lack of an undertaking as to a retrial from the issuing state. The objections as to form, particularity, flight and speciality had not been made out in the circumstances.

1 JUDGMENT of Mr Justice Edwards delivered on the 15th day of February, 2013

Introduction:

2 The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 4th August, 2008. The warrant was endorsed by the High Court for execution in this jurisdiction on the 21 ^st September, 2011 and it was duly executed on the 10 ^th of May, 2012. The respondent was arrested by Garda Declan Conlon on that date, following which he was brought before the High Court on the following 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 19 ^th December, 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 and has scrutinised a true copy of the European arrest warrant in this case. The Court has of its own initiative taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement. Counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

5 The Court is satisfied following its consideration of these matters that:

6 (a) the European arrest warrant was endorsed for execution in this State in accordance with s. 13 of the 2003 Act;

7 (b) the warrant was duly executed;

8 (c) the person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

9 (d) the warrant is in the correct form;

10 (e) the warrant is a conviction type warrant and the respondent, having been sentenced to "1 year's deprivation of freedom" by the District Court in Poznan on 13 ^th July 2005, and which sentence was initially conditionally suspended for a three year probationary period but was subsequently ordered to be executed by the District Court in Poznan on 15 ^th September 2006, in case reference no. V K625/05, in respect of the single offence particularised in Part E of the warrant, is wanted in Poland to serve the said sentence of 1 year's deprivation of freedom.

11 (f) Both correspondence and minimum gravity require to be demonstrated in the circumstances of this case;

12 (g) The threshold for the purposes of minimum gravity is that the respondent should have received a sentence of at least four months imprisonment or detention in the issuing state. The sentence imposed in this case was one of 1 year's deprivation of freedom and so the minimum gravity requirement is satisfied;

13 (h) There are no circumstances that would cause the Court to refuse to surrender the respondent under ss. 21A, 23 or 24 of the Act of 2003 as amended.

14 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. No. 206/2004) (hereinafter "the 2004 Designation Order"), and duly notes that by a combination of s. 3(1) of the Act of 2003, and Article 2 and the Schedule to the 2004 Designation Order, "Poland" (or more correctly the Republic of Poland) is designated for the purposes of the Act of 2003 as being a State that has under its national law given effect to Council Framework Decision 2002/584/J.H.A. of 13 ^th June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereinafter referred to as "the Framework Decision")..

The Offence as described in the Warrant

15 The offence to which the warrant relates is described...