The Minister for Justice and Equality v E.S.

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 19 June 2014
• Neutral Citation: [2014] IEHC 376
• Court: High Court
• Docket Number: [2011 Nos. 262 & 263 EXT]
• Date: 19 June 2014

[2014] IEHC 376

THE HIGH COURT

[No. 262 EXT./2011]

[No. 263 EXT./2011]

Min for Justice v S (E)

APPROVED

Redacted

Mr. Justice Edwards

Version

JUDGMENT

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

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

E. S.

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 286(1)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 300(2)

CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF POLAND ART 12

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

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

ENFORCEMENT OF COURT ORDERS ACT 1926 S24(1)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(i)

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 S38(1)(B)

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 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

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

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

MIN FOR JUSTICE v E (T) UNREP EDWARDS 19.6.2013 2013/32/9460 2013 IEHC 323

MIN FOR JUSTICE v G (RP) UNREP EDWARDS 18.7.2013 2013/32/9609 2013 IEHC 54

MIN FOR JUSTICE v GORMAN 2010 3 IR 583 2010/34/8621 2010 IEHC 210

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

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

LAUNDER v UNITED KINGDOM 1998 25 EHRR CD67

KING v UK UNREP 26.1.2010 2010 ECHR 164 (APPLICATION NO 9742/07)

BABAR AHMAD & ORS v UK UNREP 10.4.2012 2012 ECHR 609 (APPLICATION NO 24027/07)

HUANG v SECRETARY OF STATE FOR THE HOME DEPT 2007 2 AC 167 2007 2 WLR 581 2007 4 AER 15 2007 HRLR 22 2007 UKHL 11

RUIZ JASO & ORS v CENTRAL CRIMINAL COURT NO 2 MADRID 2008 1 WLR 2798 2007 AER (D) 211 (DEC) 2007 EWHC 2983 (ADMIN)

NORRIS v GOVT OF UNITED STATES OF AMERICA (NO 2) 2010 2 AC 487 2010 2 WLR 572 2010 HRLR 20

H (Z) [TANZANIA] v SECRETARY OF STATE FOR THE HOME DEPT 2011 2 AC 166 2011 2 WLR 148 2011 2 AER 783 2011 1 FCR 221 2011 HRLR 15 2011 UKSC 4

R (F-K) v POLISH JUDICIAL AUTHORITY 2013 1 AC 338 2012 4 AER 539 2012 3 WLR 90 2012 UKSC 25

CRIMINAL PROCEEDINGS AGAINST RADU, IN RE 2013 QB 1031 2013 3 WLR 681 2013 AER (EC) 410 (CASE C-396/11)

MIN FOR JUSTICE v OSTROWSKI 2014 1 ILRM 88 2013 IESC 24

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(2)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

European Arrest Warrant – Extradition – Outstanding Debt – Poland – Surrender – Rendition – Public Interest – European Convention of Human Rights – Respect for Family Life

The facts of this case arise out of the respondent being the subject of two European arrest warrants issued by a Polish Court. The Respondent refused any consent to surrender to Poland and contended that the Court is prohibited from surrendering her under s. 37 of European Arrest Warrant Act of 2003 because to do so would breach the rights of herself and her daughter to respect for family life as guaranteed under Article 8 of the European Convention on Human Rights. The offences in the warrant were related to the failure to pay incurred debt in Poland. The respondent claimed that any proposed surrender measure would be disproportionate to any legitimate aim being pursued. The issue was adjudicated on before Edwards J. in the High Court.

Edwards J. was tasked with assessing and weighing the public interest in the respondent"s extradition against the prejudicial effect of the warrant on the respondents" family life. The respondent contended that, in the circumstances of delay, she has established her life in Ireland with her daughter while unaware that she was wanted for prosecution of these alleged offences. She believes that in the event that she is surrendered her daughter may suffer irreparable damage to her life and well being which may have a profound effect on her development. With the aid of reports detailing the Impact of Mother-Child Separation and Medical and Psychological Reports of the respondent, Edwards J. came to the conclusion that any surrender would have a serious impact on the well being of the respondent and the raising of her dependent child. Edwards J. deemed it necessary to analyze the gravity of the offences to help establish the measure of public interest in the rendition. Edwards J found that the particular offences only mounted to a moderate public interest in the respondent"s rendition. Edwards J. was satisfied that the respondent"s surrender would be injurious and harmful, as opposed to distressing and difficult, in its consequences to those concerned. Edwards J. held that the rendering of a proposed surrender would be a disproportionate measure in all the circumstances of the case.

1 JUDGMENT of Mr Justice Edwards delivered on the 19th day of June, 2014.

Introduction

2 The respondent is the subject of two European arrest warrants dated 21 ^st September, 2007, ("the 2007 warrant") and 3 ^rd March, 2010, ("the 2010 warrant"), respectively, issued by a competent judicial authority in Poland. Each warrant seeks the rendition of the respondent for the purpose of prosecuting her for the offence or offences particularised in Part (e) of the warrant in each case. Both warrants were endorsed for execution in this jurisdiction by the High Court on 27 ^th My, 2011. The respondent was arrested in execution of both warrants on 29 ^th August, 2013, by Garda K.B. and was brought before the High Court on the same day pursuant to s. 13 of the European Arrest Warrant Act 2003 ("the Act of 2003"). In the course of the s. 13 hearing in respect of each warrant, 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 both matters were adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 The respondent does not consent to her surrender to Poland in either case. Accordingly, this Court is now being asked by the applicant to make orders 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 her. The Court must consider, in both cases, 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 dependent upon a judicial finding that they have been so satisfied.

Uncontroversial s.16 issues

4 The Court has received and scrutinised true copies of both European arrest warrants. Further, the Court has taken the opportunity to inspect the original European arrest warrant on the Court file pertaining to each case, and each of which bears this Court's endorsement.

5 The Court has also received two affidavits of Garda K.B., sworn on 24 ^th April, 2014, testifying as to his arrest of the respondent in each case. He states at para. 4 of his affidavit in each case that the woman that he arrested acknowledged that she was E.S. Moreover, she acknowledged the Part (a) details when they were put to her, and also that she was the person shown in a photograph attached to each of the warrants. In addition, counsel for the respondent has confirmed that no issue arises in either case as to either the arrest or identity.

6 I am satisfied following my consideration of these matters that:

7 (a) Both European arrest warrants were endorsed for execution in this State in accordance with s. 13 of the Act of 2003;

8 (b) Both warrants were duly executed;

9 (c) The person who has been brought before the Court is the person in respect of whom the European arrest warrants were issued;

10 (d) Both warrants are in the correct form;

11 (e) Both warrants purport to be prosecution type warrants and in each case the respondent is wanted in Poland for the purpose of being prosecuted for the offence or offences particularised in Part (e) of the warrant in question;

12 (f) The underlying domestic decisions on which the warrants are based are indicated as being, in the case of the 2007 warrant: "a decision consisting in the execution of a detention awaiting trial of the District Court in Strzelce Opolskie from 4 ^th April 2006 for a period of 14 (fourteen) days from the day detention [ sic]"; and in the case of the 2010 warrant: "a valid decision of District Court for Wroclaw-Krzyki dated 21 December 2009, File Number: VII Kp 587/09 concerning temporary arrest of the suspect for the period of 14 days since the date of detention";

13 (g) The nature and classification of the offences for which the respondent is wanted for trial are, in the case of the 2007 warrant: twelve offences against property contrary to Article 286, s. 1 of the Polish Penal Code and one offence against the conduct of economic transactions contrary to Article 300, s. 2 of the Polish Penal Code; and in the case of the 2010 warrant: a single multi-act offence where the conduct complained of is said to have constituted a crime under Article 286, s. 1 of the Polish Penal Code in connection with Article 12 of the Penal Code. The terms of Article 286, s. 1 of the Polish Penal Code are set out in the 2010 warrant and the offence in question might be generically described as a "deception" type offence. Article 12 provides that planned acts in close temporal proximity may be charged together as a single prohibited act. It is clear...