Minister for Justice v Bebenek

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] IEHC 569
• Court: High Court
• Docket Number: [2021 No. 67 EXT.]

Between

Minister for Justice

Applicant

and

Tomasz Bartlomiej Bebenek

Respondent

[2022] IEHC 569

[2021 No. 67 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to the Republic of Poland pursuant to a European arrest warrant – Whether the offences alleged in the European arrest warrant corresponded with offences in the State’s jurisdiction

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr Bebenek, to the Republic of Poland (Poland) pursuant to a European arrest warrant dated 17th November, 2020 (the EAW). The EAW was issued by Judge Kosiela of the Circuit Court in Radom as the issuing judicial authority. The EAW sought the surrender of the respondent in order to prosecute him in respect of nine offences. The respondent contested his surrender on the basis that: (a) the offences alleged in the EAW did not correspond with offences in the State’s jurisdiction, as required by s. 38 of the European Arrest Warrant Act 2003; and (b) his personal and family rights under s. 37 of the 2003 Act would be infringed upon surrender.

Held by Burns J that offence number five of the main offences to which the EAW related corresponded with an offence under the law of the State, viz. criminal damage contrary to s. 2 of the Criminal Damage Act 1991. Burns J was satisfied that correspondence could be established between the alleged offence number six in the EAW and an offence under the law of the State, viz. an offence contrary to s. 6 of the Criminal Justice (Public Order) Act 1994. Taking into account all of the documentation before the Court, Burns J was not satisfied that there were substantial reasons for believing that, if surrendered, the respondent would face a real risk of a breach of his fundamental rights and in particular his right to life and his right not to be subjected to inhuman or degrading treatment or punishment. Burns J was satisfied that the presumption provided for by s. 4A of the 2003 Act had not been rebutted. Burns J was satisfied that surrender of the respondent would not be incompatible with the State’s obligations under the European Convention on Human Rights, the protocols thereto and nor would it contravene the Constitution. Burns J held that the private and family circumstances of the respondent as set out before the Court came nowhere near meeting the threshold of being “truly exceptional” so as to justify a refusal of surrender, citing Minister for Justice and Equality v Vestartas [2020] IESC 12.

Burns J held that, having rejected the respondent’s objections to surrender, the Court would make an order for the surrender of the respondent to Poland.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 10th day of October, 2022

1 . By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Poland (“Poland”) pursuant to a European arrest warrant dated 17th November, 2020 (“the EAW”). The EAW was issued by Judge Jerzy Kosiela of the Circuit Court in Radom as the issuing judicial authority.

2 . The EAW seeks the surrender of the respondent in order to prosecute him in respect of nine offences.

3 . The respondent was arrested on 27th March, 2021 on foot of a Schengen Information System II alert and brought before the High Court on the same day. The EAW was produced to the High Court on 31st March, 2021.

4 . I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in this regard.

5 . I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.

6 . I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. Each of the offences in respect of which surrender is sought carry a maximum penalty in excess of 12 months' imprisonment. No issue was taken in respect of minimum gravity.

7 . The respondent's solicitor, Ms. Mary Malarkey, swore an affidavit herein dated 8th April, 2021 in which she exhibited a draft affidavit of the respondent for the purposes of bail dated 29th March, 2021 and averred that same had been prepared on foot of his instructions but, due to the Covid-19 pandemic, was unable to have him swear same. In the draft affidavit the respondent indicates that he originally came to Ireland in 2005 and has been in a long-term relationship with his partner since 2014. They have an 18-month-old son. He indicates that on 17th September, 2014, in Ireland, he was sentenced to serve an 18-month term of imprisonment imposed for a number of offences including offences under the Criminal Justice (Theft and Fraud Offences) Act, 2001 and the Misuse of Drugs Acts. He indicates that he was served with a Removal Order dated 10th June, 2015 and issued judicial review proceedings in respect of same. He indicates that in or around July 2016, he and his partner moved to England and then returned to Ireland in December 2020. He indicates that he suffers from Type 1 Diabetes.

8 . The respondent swore an affidavit in which he takes issue with the allegation that he was banned or disqualified from driving motor vehicles in January 2011 and/or April 2011 as alleged in the EAW. He avers that in or around August 2010, he was arrested on foot of a European arrest warrant, remanded to Cloverhill Prison and that an Order was made for his extradition to Poland on 4th November, 2010. He avers that he was later extradited to Poland to serve a sentence there, was initially in custody in Warsaw, then transferred to Radom Prison and was released on or about 2nd December, 2011. He avers that he returned to Ireland on or about 3rd January, 2012 and that he has not returned to Poland since that time. He avers that the reason he has not travelled back to Poland is because there are threats to his life as a result of a criminal organisation with which he was involved while in custody in Poland from 2010 to 2011. He avers that he was requested to carry out certain criminal acts upon his release which he did not do and instead left Poland. He says that, as a result thereof, he is in fear of his safety and life if returned to a prison in Poland. He sets out his family circumstances as already referred to in the earlier draft affidavit.

9 . The respondent objects to surrender on the following grounds:-

(i) surrender is precluded by reason of s. 38 of the Act of 2003; and

(ii) surrender is precluded by reason of s. 37 of the Act of 2003.

Section 38 of the Act of 2003 – Correspondence

10 . Out of the nine offences to which the EAW relates, counsel on behalf of the respondent disputes that correspondence can be established in relation to offence number five in relation to damage to a motor vehicle and offence number six relating to insulting police officers.

11 . By way of additional information dated 19th May, 2021, the Provincial Prosecutor's Office in Radom set out in more detail the circumstances of the said offences. It is clear from the description of offence number five set out therein that the respondent, along with another, set fire to a motor vehicle belonging to a third party using a container of gasoline from the respondent's house and did so intentionally. In light of such additional evidence, counsel for the respondent did not vigorously pursue his submission in respect of lack of correspondence as regards that offence. I am satisfied that offence number five of the main offences to which the EAW relates corresponds with an offence under the law of this State, viz. criminal damage contrary to s. 2 of the Criminal Damage Act, 1991.

12 . As regards offence number six in the EAW concerning insulting police officers, the circumstances of same are set out in the EAW at part E as follows:-

“On 2 March 2012 in Szydłowiec, province of mazowieckie, using words commonly considered offensive, the above insulted police officers from the District Police Station in Szydłowiec – Ssgt Rafał Węgierek and Msgt Radosław Dujka while and in relation to them performing their official duties, i.e. an offence under art.226 § 1 of the Penal Code.”

13 . Counsel on behalf of the respondent submits that insulting a police officer in itself is not an offence under Irish law. He relied on the decisions of the High Court in Minister for Justice v. Makuch [2013] IEHC 254 and The Minister for Justice and Equality v. Zielinski [2020] IEHC 398. He submits that, while it is alleged that in the course of the same incident the respondent assaulted one of the police officers and threatened to injure and kill the officers, those matters were the subject of separate offences in the EAW, namely offence numbers seven and eight referred to therein.

14 . Counsel on behalf of the...