The Minister for Justice and Equality v Leopold

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 30 January 2020
• Neutral Citation: [2020] IEHC 84
• Docket Number: [2017/55/EXT]
• Court: High Court
• Date: 30 January 2020

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACTS 2003 AND 2012

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MACIEJ LEOPOLD

RESPONDENT

[2020] IEHC 84

Donnelly J.

[2017/55/EXT]

THE HIGH COURT

European arrest warrant – Surrender – Issue estoppel – Applicant seeking the surrender of the respondent – Whether the surrender was prohibited on the grounds of an issue estoppel

Facts: A European arrest warrant (EAW) issued on 13th February, 2017 by an issuing judicial authority in Poland. The issuing authority sought the surrender of the respondent, Mr Leopold, to prosecute him there for six offences allegedly committed between 2002 and 2006. The respondent argued that the surrender was prohibited on the grounds of an issue estoppel, a res judicata or any form of abuse of process based upon the exceptional circumstances of this case.

Held by the High Court (Donnelly J) that it was bound by the decision of Edwards J in so far as there was an issue estoppel involved as regards the correspondence of offences. Therefore, Donnelly J refused the respondent’s surrender on offences C/ I, II, III, IV and the single offence in D. She held that, even when taken cumulatively, there was no abuse of process in relation to any of the factors the respondent had raised. She was satisfied that there was no mala fides or improper motive or indeed any real culpability. It was not, in her view or in the words of O’Donnell J in Minister for Justice v. J.A.T. (No. 2) [2016] 2 I.L.R.M. 262, a situation where it “can nevertheless be said that to permit proceedings to continue would be an abuse of the Court’s process in the sense that it would no longer be the administration of justice”. She held that the respondent had no substantive Article 8 issues in his case. She held that there was a high public interest in surrender even in a case such as this. She held that nothing in the behaviour of either the Polish authorities or the applicant, the Minister for Justice and Equality, brought this into the realm of an abuse of process. She was satisfied that the respondent’s surrender was not prohibited on any other ground as set out in s. 16 of the European Arrest Warrant Act 2003.

Donnelly J held that she could order the respondent’s surrender in respect of the sole Count V in the EAW before her. She therefore made the order under s. 16(1) that Mr Leopold be surrendered to such other persons as was duly authorised by the issuing state to receive him.

Application granted.

JUDGMENT of the Court delivered (ex tempore) on the 30th day of January, 2020 by Ms. Justice Donnelly

1 The European arrest warrant before the Court issued on 13th February, 2017 by an issuing judicial authority (hereinafter, “IJA”) in Poland. The issuing authority seeks the surrender of the respondent to prosecute him there for six offences allegedly committed between 2002 and 2006.

2 There is a very long history in relation to this application. Over the past 10 years, Poland has sought the surrender of this respondent in relation to different matters on seven occasions. Some of these relate to other offences than the present offences and I will refer in more detail to the requests and various warrants below.

3 The issue that I am primarily dealing with in this judgment is the respondent's argument that the surrender is prohibited on the grounds of an issue estoppel, a res judicata or any form of abuse of process based upon the exceptional circumstances of this case. It is important therefore to deal with the chronology of what has occurred since European Arrest Warrants (hereinafter, “EAW's”) were issued for this respondent in Poland.

Chronology

4 EAW 1 issued on the 11th May, 2010 and was endorsed on the 7th July, 2010. EAW 2 was issued on the 19th July, 2010 and was endorsed on the 22nd September, 2010. EAW 1 contained a single offence. EAW 2 referred to twelve offences. Only six of those offences are contained in the present offence which is called EAW 7.

5 The respondent was arrested on the 27th June, 2011 on foot of the two EAW's: EAW 1 and EAW 2. On the 7th December, 2011, the High Court ordered his surrender under s.16 in respect of the single offence on the 30th November, 2011. That Order for surrender concerned the two warrants [2010 71 EXT] (EAW 1) and certain of the offences outlined in the second warrant (EAW 2) [2010 352 EXT]. It is accepted that Edwards J. in the High Court refused to surrender the respondent on EAW 2 in respect of five of the six offences, the subject matter of the present application. Edwards J. ordered his surrender in respect of the other offences in EAW 2. What is relevant to the present proceedings is that his surrender was ordered on offence E (V), namely the offence allegedly committed on 24th March, 2005 in Poznan. This is the same offence as offence No. V in the present warrant (EAW 7), contained at part E (C) therein.

6 6. On 28th December, 2011, the High Court ordered the respondent's release pursuant to Article 40.4 of the Constitution. This appears to have been in circumstances where his surrender was not effected by Poland within the time allowed, and I will return to this later in the judgment. From the information before this Court it appears there has never been a clear indication from Poland as to why they did not effect surrender within that time period.

7 Since the release under Article 40 there have been a number of relevant events. These have been set out in a very comprehensive chronology prepared by the Chief State Solicitor's Office. I accept that chronology and it is incorporated into this judgment.

8 I will point to a number of brief matters. EAW 3 and 4 were issued in Jan/Feb 2012 and were endorsed in May/June 2012 by the High Court. EAW 3 contains the same six offences for which surrender was sought on EAW 1. A fifth EAW issued on the 7th January, 2013 and was endorsed on the 19th March, 2013. The respondent was arrested on the 23rd April, 2013 in respect of this EAW. EAW 5 also contained the same six offences as EAW 1 and EAW 7.

9 Over a number of months, these matters were adjourned. It appeared that the Polish authorities were seeking to replace EAW 3. On the 8th November, 2013 the Minister applied to withdraw EAW 3 on the basis of additional information provided by the Polish authorities.

10 The respondent was afforded opportunities by the High Court to engage with the IJA's. In Poland, he has engaged with the prosecutorial and judicial authorities in attempting to deal with offences underlying the warrants by way of applications to the Polish authorities. Over the course of his engagement, it was made known to this Court that he has been successful in many of the offences on the various warrants. For example, he reached agreement in respect of a large number of offences to be interviewed in the Polish Embassy in respect of same.

11 On the 3rd December, 2012, EAW 4 was withdrawn at the request of the Minister following further information.

12 EAW 5 was adjourned repeatedly at the request of the respondent initially because of his application to the Polish Court, but later because of his desire to await the decision of the Supreme Court in the case of Minister for Justice and Equality v Lipinski [2017] IESC 26 (which was referred to the Courts of Justice of the European Union (hereinafter, “CJEU”)), but was not decided by them in light of the intervening decision in the case of Samet Ardic ( Case C-571/17), ECLI:EU:C:2017:1026.

13 On the 30th May, 2016, the High Court endorsed EAW 6 dated the 8th April, 2016. EAW 6 contained the same six offences as EAW 1 and EAW 7. There was an application to withdraw EAW 5 on the 13th June, 2016 and that was granted. The respondent was arrested on EAW 6 on the 8th April, 2016. EAW 6 was then adjourned pending the determination of the Lipinski case.

14 14. EAW 7 was endorsed on the 13th March, 2017 and on that date, EAW 6 was withdrawn. The respondent was arrested on the same date on EAW 7. The matters then proceeded before this Court.

15 It is noteworthy that the cover letter sending the EAW states that this is a partially amended EAW because the Circuit Court in Poznan had decided to call off the search for the respondent in respect of matters A and B referred to in EAW 6. This was in response to the successful application by the respondent to deal with those matters in another manner.

16 The respondent sought time to deal with the outstanding matters on EAW 7 in Poland and in light of what had occurred, he was granted time. In relation to these offences this particular prosecutor would not agree to him being interviewed in the embassy in Dublin. The matter had a hearing date in March 2018 but the respondent sought to raise what I will term, a “Celmer” type argument about the situation in relation to judicial independence in Poland. The Court acceded to that adjournment and the matter was adjourned from time to time on that basis. It was only on the 28th January, 2020 that the matter was finally put in for hearing before me; the Celmer case having been finally determined by the Supreme Court. There being nothing advanced specifically with regard to this respondent's situation, and the risk to him personally of an unfair trial, I am satisfied that there is no reason by virtue of a fair trial reason as to why he cannot be surrendered to Poland, and indeed that has not been advanced in this particular case, apart from the earlier generalities.

17 The position therefore is that EAW 7 is to my best calculation, the fifth EAW for which his surrender has been sought in respect of these particular matters. It is also apparent that, subject to my further consideration of the initial decision of this Court to refuse surrender, that the reason why so many EAW's have issued is to take into account the domestic proceedings in which the respondent has successfully challenged the underlying...