The Minister for Justice and Equality v Celmer

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 12 March 2018
• Neutral Citation: [2018] IEHC 119
• Date: 12 March 2018
• Court: High Court
• Docket Number: Record No. 2013 EXT 295 Record No. 2014 EXT 8 Record No. 2017 EXT 291

[2018] IEHC 119

HIGH COURT

Donnelly J.

Record No. 2013 EXT 295

Record No. 2014 EXT 8

Record No. 2017 EXT 291

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ARTUR CELMER

RESPONDENT

Extradition – The European Arrest Warrant (“EAW”) Act 2003 – Breach of fair procedures – Framework decision – The European Convention on Human Rights – Opinions of Venice Commission – Reasoned Proposal of the European Commission – Reference to the Court of Justice of the European Union

Facts: The surrender of the respondent was sought by the requesting state for the purpose of conducting a criminal prosecution on foot of execution of three separate European Arrest Warrants (‘EAW’). The respondent objected to his surrender on the ground that his right to fair trial would be violated due to the legislative changes that had occurred over the past two years in the requesting state. The respondent presented Reasoned Proposal of the European Commission in support of his contentions. The respondent also objected to his surrender for the violation of his rights under art. 3 of the European Convention on Human Rights (‘ECHR’) on the basis of worst prison conditions in the requesting state.

Ms. Justice Donnelly held that the matter should have been referred to the Court of Justice of the European Union (‘CJEU’). The Court adjourned the matter so that the parties could frame the questions for reference to the CJEU. The Court agreed with the observations contained in the Reasoned Proposal of the European Commission. The Court formulated questions for the CJEU in relation to the application of the correct test to be applied for the surrender of the respondent in cases where there was breakdown of rule of law in the requesting state and there was real risk of violation of the rights of fair trial of the respondent.

JUDGMENT of Ms. Justice Donnelly delivered on the 12th day of March, 2018

1. Introduction

1 The surrender of the respondent is sought by the Republic of Poland (‘Poland’) pursuant to three European Arrest Warrants (‘EAW’) issued by Polish judicial authorities for the purposes of conducting a criminal prosecution. The respondent objects to his surrender primarily on the ground that the legislative changes to the judiciary, to the courts, and to the Public Prosecutor brought about within the last two to three years in Poland undermines the possibility of him having a fair trial. The respondent also opposes his surrender on the basis of prison conditions in Poland, in particular, that his safety cannot be guaranteed there. The minister was also put on formal proof of all matters, including whether the details of the alleged offences comply with the provisions of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’).

2 The respondent has been in custody since he was arrested on foot of the first two warrants on 5th May, 2017. There was some delay in the case caused by legal aid issues, change of solicitors, the fact that he was arrested on the third EAW on the 14th November 2017, requests for adjournment to put in further evidence, and requests for adjournments to put forward new information about recent legislative changes in Poland. Finally, on 1st and 2nd February, 2018, the hearing for this application came before this Court and the matter was adjourned until this day, 12th March, 2018 for judgment.

2. Formal Proofs

3 Before dealing with the specific points raised by the respondent in objecting to his surrender, I will address the formal requirements of the Act of 2003 with which this Court must be satisfied if it is to make an order of surrender.

2.1. A Member State that has given effect to the framework decision

4 The surrender provisions of the Act of 2003 apply to Member States of the European Union (‘EU’) that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European Arrest Warrant and the surrender procedures between Member States (‘the Framework Decision’). By the European Arrest Warrant Act, 2003 (Designated Member States) (No. 3) Order, 2004 ( S.I. 206 of 2004), the Minister for Foreign Affairs designated Poland as a Member State for the purposes of the Act of 2003.

2.2. Section 16(1) of the Act of 2003

5 Under the provisions of s. 16(1) of the Act of 2003, the High Court may make an order directing that a requested person be surrendered to the issuing state provided that;

‘(a) The High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,

(b) The EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution of the warrant,

(c) The EAW states, where appropriate, the matters required by s. 45 of the Act of 2003,

(d) The High Court is not required under ss. 21A, 22, 23 or 24 of the 2003 Act as amended to refuse surrender,

(e) The surrender is not prohibited by Part 3 of the 2003 Act.’

2.2.1. Identity

6 I am satisfied, on the basis of the information contained in the EAW dated 4th June, 2012 in proceedings 2013/295 EXT (the first EAW), and the affidavit of Daragh Keogh, member of An Garda Síochána, that Artur Celmar, who is before the Court, is the person in respect of whom the first EAW has issued.

7 I am satisfied, on the basis of the information contained in the EAW dated 1st February, 2012 in proceedings 2014/8 EXT (the second EAW), and the affidavit of Daragh Keogh, member of An Garda Síochána, that Artur Celmar, who is before the Court, is the person in respect of whom the second EAW has issued.

8 I am satisfied on the basis of the information contained in the EAW dated 26th September 2013 in proceedings 2017/291 EXT (the third EAW), and the affidavit of Jim Kirwan, member of An Garda Síochána, that Artur Celmar, who is before the Court, is the person in respect of whom the third EAW has issued.

2.2.2. Endorsement

9 I am satisfied that each EAW was endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

2.2.3. Sections 21A, 22, 23 and 24 of the Act of 2003

10 I am satisfied that it is not required to refuse to surrender the respondent under any of the above sections in relation to the European arrest warrant.

2.2.4. Part 3 of the Act of 2003

11 Subject to further consideration of s. 37, s. 38 and s.44 of the Act of 2003, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the 2003 Act. As the respondent is sought for the purpose of prosecution on each EAW, s.45 does not have any application to these proceedings and his surrender is not thereby prohibited.

3. Points of Objection

12 In relation to each EAW the respondent objected to surrender on the basis of a lack of correspondence of offences. The true issue is whether surrender is prohibited by s. 38 of the Act of 2003.

3.1. Section 38 of the Act of 2003

3.1.1. The first EAW

13 The surrender of the respondent is sought for the purpose of prosecuting him for two offences. Both offences are certified by the issuing State as falling within Article 2.2 of the Framework Decision. The offences have been categorised as ‘illicit production, processing, smuggling of intoxicants, precursors, surrogates or psychotropic substances or trafficking in same’ and ‘participation in an organised criminal group or association whose aim is to commit offences’.

14 The alleged involvement of the respondent is described in the EAW as follows:

‘in the period between 2002 and the spring of 2006 in Poznan and Wioclawak, acting contrary to provisions of the drug addiction prevention act, [the respondent] participated in an organised criminal group…whose aim was to commit offences of trading in large amounts of intoxicants and psychotropic substances in Poznan and elsewhere in Poland as well as committing other offences with the aim of gaining financial profits…the respondent committed offences of trading in considerable amounts of psychotropic substance in the form of at least 50 kilograms of amphetamine valued at least 225.00 zlotys, 200.000 ecstasy pills valued at at least 290.000 zlotys and intoxicants in the form of at least 3.5 kilograms of marihuana valued at at least 47.950 zlotys’.

15 The EAW goes on to describe the alleged participation of the respondent in trading in the psychotropic substances.

16 With regard to the degree of minimum gravity required in accordance with section 38(1)(b) of the EAW Acts, what is required is that the offences carry a maximum sentence of at least 3 years. I am satisfied from paragraph C of the EAW that one offence carries a potential maximum sentence of 5 years imprisonment and the other carries a maximum potential sentence of 10 years imprisonment. The respondent's surrender is not prohibited under s. 38 on the first EAW.

17 In view of the foregoing, I am satisfied that there is no manifest error in the certification of the offences. The respondent's surrender is therefore not prohibited under s. 38 on the first EAW.

3.1.2. The second EAW

18 This EAW also seeks the surrender of this respondent for the purpose of standing trial for two offences. The EAW is accompanied by additional information dated the 24/ 2/2017. Both offences are certified by the Issuing State as falling within Article 2.2 of the Framework Decision. These offences have been categorised as ‘illicit trafficking in narcotic drugs and psychotropic substances’.

19 The alleged involvement of the respondent is described on the face of the EAW as follows:

‘…in summer 2007 in Holland, acting to achieve property benefit, against provisions of law upon counteraction against drug addiction,…[the respondent] made a delivery…of substantial quantity of intoxicants such as marihuana in the quantity not less than 6000 gram net in such a way that [named...