The Minister for Justice, Equality & Law Reform v Machaczka

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Edwards
Judgment Date12 October 2012
Neutral Citation[2012] IEHC 434
Date12 October 2012

[2012] IEHC 434

THE HIGH COURT

Record Nos.:22 EXT/2010
23 EXT/2010
180 EXT/2010
Min for Justice v Machaczka
APPROVED
Mr.Justice Edwards
JUDGMENT
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Applicant
-and-
ARTUR MACHACZKA
Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

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

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

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 S11(1A)(F)

MIN FOR JUSTICE v KASPROWICZ UNREP PEART 13.5.2010 2010/35/8761 2010 IEHC 207

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

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

PENAL CODE OF THE REPUBLIC OF POLAND ART 286(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S29(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S29(2)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S29

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

PENAL CODE OF THE REPUBLIC OF POLAND ART 270(1)

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

PENAL CODE OF THE REPUBLIC OF POLAND ART 91(1)

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 38.1

CONSTITUTION ART 40.4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN ARREST WARRANT ACT 2003 S20(4)

EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012 S13

EUROPEAN ARREST WARRANT ACT 2003 S20(3)

CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF POLAND ART 260

CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF POLAND ART 213

CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF POLAND ART 259(1)(1)

S (MS) v BELGIUM & GREECE 2011 53 EHRR 2 31 BHRC 313 2011 INLR 533

KAPRYKOWSKI v POLAND UNREP ECHR 3.2.2009 (APPLICATION NO 23052/05) 2009 ECHR 198

KUPCZAK v POLAND UNREP ECHR 25.1.2011 (APPLICATION NO 2627/09) 2011 ECHR 127

MUSIALEK & BACZYNSKI v POLAND UNREP ECHR 26.7.2011 (APPLICATION NO 32798/02) 2011 ECHR 1189

KUMENDA v POLAND UNREP ECHR 8.6.2010 (APPLICATION NO 2369/09) 2010 ECHR 851

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(3)

MUSIAL v POLAND UNREP ECHR 20.1.2009 (APPLICATION NO 28300/06)

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783 2011 1 ILRM 157 2010/36/8976 2010 IESC 45

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204

S (N) v SECRETARY OF STATE FOR THE HOME DEPT; E (M) & ORS v REFUGEE APPLICATIONS CMSR & ANOR 2013 QB 102 2012 3 WLR 1374 2012 AER (EC) 1011 2012 2 CMLR 9

EEC REG ART 3(2)

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

MIN FOR JUSTICE v R (SM) 2008 2 IR 242 2007/41/8454 2007 IESC 54

JANSONS v RIGA DISTRICT COURT, LATVIA 2009 AER (D) 192 (MAR) 2009 EWHC 1845 (ADMIN)

EXTRADITION ACT 2003 S21 (UK)

EXTRADITION ACT 2003 S25 (UK)

WROBEL v POLAND 2011 AER (D) 10 (MAR) 2011 EWHC 374 (ADMIN)

HOWES v HM ADVOCATE 2010 SCL 341 2010 SLT 337 2009 HCJAC 94

R (ROT) v DISTRICT COURT OF LUBLIN, POLAND 2010 AER (D) 277 (JUL) 2010 EWHC 1820 (ADMIN)

R (PROSSER) v SECRETARY OF STATE FOR THE HOME DEPT 2010 ACD 57 2010 AER (D) 125 (APR) 2010 EWHC 845 (ADMIN)

MIN FOR JUSTICE v JOHNSTON UNREP SUPREME 12.3.2008 2008/41/8862 2008 IESC 11

MIN FOR JUSTICE v BRADY UNREP SUPREME 14/1/2008 (EX TEMPORE)

MAZURKIEWICZ v RZESZOW CIRCUIT COURT, POLAND UNREP 22.3.2011 2011 EWHC 659 (ADMIN)

SBAR v COURT OF BOLOGNA, ITALY 2010 AER (D) 237 (MAY) 2010 EWHC 1184 (ADMIN)

FARRELL v CRIMINAL COURTS OF JUSTICE, DUBLIN 2012 AER (D) 62 (MAR) 2012 EWHC 676 (ADMIN)

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

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

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

MIKLIS v DEPUTY PROSECUTOR GENERAL OF LITHUANIA 2006 4 AER 808 2006 AER (D) 146 (MAY) 2006 EWHC 1032 (ADMIN)

VILVARAJAH & ORS v UNITED KINGDOM 1992 14 EHRR 248 1991 ECHR 47

KUDLA v POLAND 2002 35 EHRR 11 10 BHRC 269 2000 PRISON LR 380

PEERS v GREECE 2001 33 EHRR 51 10 BHRC 364 2001 PRISON LR 245

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

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

RUIZ JASO & ORS v CENTRAL COURT OF CRIMINAL PROCEEDINGS NO 5 OF THE NATIONAL COURT, MADRID 2008 1 WLR 2798 2007 EWHC 2983 (ADMIN)

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

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

MIN FOR JUSTICE v TOBIN 2008 4 IR 42

MIN FOR JUSTICE v TOKARSKI UNREP EDWARDS 9.3.2012 2012 IEHC 148

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

Criminal law - European Union law - European arrest warrant - Surrender - Mental health - Poland - Grave circumstances - Exceptional circumstances - Treatment Flight - Article 8 ECHR - Criminal Justice (Thefts and Fraud Offences) Act 2001 - European arrest warrant Act 2003, as amended

Facts: The surrender of the respondent was sought by Poland on foot of three European arrest warrants. A point of objection was raised as to the absence of the name of the respondent on a part of the warrant. The Court had been invited to find correspondence with s. 26(1) Criminal Justice (Thefts and Fraud Offences) Act 2001 in respect of the offences detailed in the warrant. Substantively, objections were made to surrender on the grounds that the return of the respondent, who suffered from a serious psychiatric illness, would gravely affect his mental health and that was in breach of his right to family life, as protected by Article 8 ECHR, to separate him from his family. The Court considered whether there were truly exceptional circumstances such as to justify the Court concluding that it would be a disproportionate measure to surrender the respondent.

Held Edwards J. that the Court could not and was not disposed to surrender the respondent on any of the three European arrest warrants. There was strong medical evidence that the respondent suffered from a progressive schizoaffective disorder. His condition had been stabilised. If he was returned to Poland, he was likely to be remanded in custody without access to comparable medication and treatment that he was currently receiving. He was at a very high risk of committing suicide if returned to Poland and it was not realistic or reasonable to expect that his partner of their children would move to Poland. It was, in the truly exceptional circumstances of the case, a disproportionate interference with the rights of the respondent and his family to surrender his to Poland. The Court declined to make the requested orders. There was no evidence of personal notification and so the Court was prohibited from surrendering the respondent. It was unnecessary to consider the flight issue.

1

JUDGMENT of Mr. Justice Edwards delivered on 12th day of October, 2012.

Introduction
2

In this case the respondent is the subject of three separate European arrest warrants on foot of which the Republic of Poland seeks his surrender either for prosecution, or to serve a sentence or sentences, as the case may be, in respect of the various offences that are the subject of the three warrants in question. It is necessary at the outset to identify each warrant properly and to give it a single and convenient label for the purposes of this judgment. It is proposed to simply label the warrants as warrant nos. 1 - 3, respectively.

Warrant No. 1
3

This is the subject of the proceedings bearing record no. 2010 no. 22 EXT and is dated the 30 th July, 2007. It was endorsed for execution on the 27 th January, 2010. It has two Polish domestic file reference numbers viz, A - IIK160/04 and B - II K 153/04 and the Polish European arrest warrant file reference number is III Kop 173/07.

Warrant No. 2
4

This is the subject of the proceedings bearing record no. 2010 no. 23 EXT and is dated the 28 th January, 2008. It was also endorsed for execution on the 27 th January, 2010. The Polish domestic file reference number is II K 854/01 and the Polish European arrest warrant file reference number is III Kop 319/07.

Warrant No. 3
5

This is the subject of the proceedings bearing record no. 2010 no. 180 EXT and is dated the 1st October, 2007. It was endorsed for execution on the 5 th May, 2010. The Polish domestic file reference number is II K 371/04 and the Polish European arrest warrant file reference number is III Kop 228/07.

Uncontroversial issues
6

Before considering each warrant individually, and the specific objections to surrender raised regarding each one respectively, it is appropriate to indicate that certain matters are uncontroversial.

7

Firstly, no issues have been raised concerning arrest or identity in any of the three cases. The Court has an affidavit as to arrest and identity covering each of the warrants in question from the arresting member of An Garda Síochána, Garda John Butler. I am satisfied that each warrant was duly executed within the...

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