Minister for Justice and Equality -v- Polak [2015] IEHC 156 (09 March 2015)

Judgment

Title:	Minister for Justice and Equality -v- Polak
Neutral Citation:	[2015] IEHC 156
High Court Record Number:	2014 24 EXT
Date of Delivery:	09/03/2015
Court:	High Court
Judgment by:	Heneghan J.
Status:	Approved

___________________________________________________________________________

Neutral Citation: [2015] IEHC 156

THE HIGH COURT

Record No 2014 No 24 EXT

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

Between:

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

- and -

GRZEGORZ POLAK

Respondent

Judgement of Ms Justice Margaret Heneghan delivered on the 9th day of March, 2015.

Introduction.
The respondent is the subject of a European arrest warrant dated the 23rd of June 2009, and issued by the District Court in Rzeszow, Poland, which is a designated state for the purposes of the Act, pursuant to S.I. 2006 of 2004. No issue is taken by the Respondent in this regard.

The warrant is based on an arrest warrant dated the 13th of November 2008, for the temporary detention of Mr Polak for a term of two months following the date of arrest. The warrant names the Respondent, Mr Grzegorz Polak, and sets out his sex, his nationality, his date of birth, his place of birth, and then details of his residency. In this regard, there is an address given in Poland and then the warrant sets out the country of Ireland with address unknown. It appears from that information that it was known to the Polish authorities, on the date of the warrant, that the respondent was in Ireland.

The warrant sets out the decision on which the EAW is based and the maximum sentence which could be imposed in this case, where the respondent is wanted for prosecution, is 12 years. The temporary detention for two months following the date of his arrest is not a sentence but follows his being surrendered from Ireland, if he is so surrendered. No sentence has yet been imposed, as the Respondent is sought for prosecution for a single offence dated 14th of June 2006, namely the beating and causing of injures to a named person and the misappropriation of a Nokia 6610, an ID card and two ATM cards worth a total of 2,000 Polish Zlotys, or €46.50. The warrant also sets out that the offence for which Mr Polak is now wanted for trial, was committed

“within the period of five years following serving at least six months of a custodial sentence adjudicated for a similar intentional offence by a judgment of the regional court is Rzeszow, based on which Mr Polak was given 1 years custodial sentence and, moreover, during a period of 5 years following serving of at least 6 months of custodial sentence adjudicated for a similar intentional offence by a judgment of the regional court is Rzeszow, based on which he was given 1 year of custodial sentence.”

The warrant also sets out the list of “ticked box” offences under the framework decision for which it is not necessary to establish correspondence; countries involved in the framework decision accept that these offences exist. In this case, the offence is a ticked box offence and once a box has been selected by the issuing authority this Court is not required to go behind that, unless there is a manifest error on the face of the warrant.

The judicial authority which issued the warrant is the President of the District Court in Rzeszow and that is an appropriate issuing judicial authority. The original warrant is signed and dated. Those are the formalities of the EAW; it was endorsed by Mr Justice Edwards for execution on the 4th of February 2014, following its transmission to the Central Authority in Dublin on the 27th of January 2014. The Respondent was then arrested on the 6th of May 2014. No issue is being taken by the Respondent in relation to the arrest.

The Court was referred to the affidavit of Garda Makowski, the arresting garda and in particular the averment at paragraph 9 that Garda Makowski was satisfied that the person arrested was the person named on the warrant.

The court was referred to additional information obtained by the Applicant, following the receipt of points of objection and an affidavit of Mr Polak (a copy of which was furnished to the Polish authorities) in the case in which the respondent states he had already been convicted and sentenced to two years for the offence dated 14th June 2006. Arising therefrom, additional information was sought from the Polish authorities, which they received on the 21st October, 2014. Their reply is dated 30th of October 2014 and it states as follows:-

“In response to the request for supplementary information received on 21st of October 2014 we explain that pursuant to the judgment of the District Court in Rzeszow of the 14th of March 2008, reference No. II K1217/06 Grzegorz Polak was sentenced to the penalty of two years' deprivation of liberty. As a result of an appeal, the Court of Appeal revoked the judgment under appeal and referred the case to the court of first instance for reconsideration. However, the case cannot be completed because Grzegorz Polak, hiding out from justice, left the country. Therefore the District Court issued an order of temporary arrest for the period of two months, from the date of detention, which constitutes the basis for issuing European arrest warrant for the fugitive. For this reason, we uphold the request to turn in Grzegorz Polak to Poland on the basis of the European arrest warrant No. II KOP41/09. At the same time, we inform that the arrest form contained an incorrect reference number of the District Courts case. Instead of the correct reference number II K 492/08, an incorrect reference number (II K 50/07) was stated. Please do not hesitate to contact us if you need any explanations or additional information."

Submissions on behalf of the Respondent.
The Respondent submitted that under Article 8 of the European Convention on Human Rights surrender would be a disproportionate interference with Mr Polak’s rights under Article 8 and rights of the family. These submissions were made on three bases:

(1) the defects in the warrant;

(2) delay; and

(3) his family right and his family's rights.

No issue was taken in relation to the detail on the warrant in relation to his name, his address, his sex, his nationality, his date of birth, his place of birth, or his residence in Poland, but the court was told that issue was being taken in relation to the detail of “Ireland - address unknown”, as it was submitted that this was very relevant to the issue of delay. It was submitted that it shows that the Polish state, have known that Mr Polak has been in Ireland since, the very latest, the 23rd of June 2009, which is the date the warrant was issued.

In this regard, it was submitted the following dates were of relevance:

• The date of the alleged offence - the 14th of June 2006;

• The date of 14th of March 2008 - where the District Court in Rzeszow sentenced Mr Polak to two years;

• The month of April 2008 when Mr Polak came to Ireland as set out in his affidavit at paragraph 6;

• The month of October 2008 when Mr Polak met his partner, as set out in the affidavit at paragraph 6;

• The date of the arrest warrant, the 13th of November 2008;

• The date of the 23rd of June 2009, when the European arrest warrant issued.

It was submitted that Mr Polak was sentenced on the 14th of March 2008 to two years in prison, that he subsequently appealed that decision, that he left during the currency of the appeal in April 2008 and that the bench warrant then issued on the 13th of November 2008. It was submitted that, from these dates, this court could draw an inference that the Polish authorities knew of Mr Polak’s whereabouts in Ireland at an early stage and this feeds into the argument of overall delay in the issuing of the warrant and the transmission of the warrant on the 27th of January 2014.

Mr Polak was arrested on the 6th of May, 2014 and was admitted to bail on that date. It was submitted that he was already convicted in respect of the offence, that he appealed in respect of it and he didn't know that his appeal was successful and was remitted for re hearing. It was submitted he was not hindered from leaving Poland, and that although the warrant refers to him as a fugitive, he himself says different. It was submitted this Court can take this into account when determining the issue of Article 8, and the court was referred to the judgments of Mr Justice Edwards in The Minister for Justice and Equality -v- T.E. [2013] IEHC 323 and The Minister for Justice and Equality -v- R.P.G. [2013] IEHC 54.

The court was told no argument was being made by the respondent in respect of correspondence.

The court was referred again to Paragraph 6 of Mr Polak’s affidavit, which deals with his family circumstances. It was submitted this Court can properly take into account the effect of surrender pertaining to children when balancing Article 8 rights in deciding whether the legitimate aim has been overcome and the social pressing need has been diminished.

It was submitted Mr Polak came to Ireland, has a work history, paid taxes on the money that he received and that he was in gainful employment. This court notes there is no supporting evidence, documentary or otherwise, relied upon by the Respondent. The court was told he made an application for a passport for his child in 2011 at the Irish Embassy, a copy of his own passport was taken, and he said he has come to the attention of An Garda Síochana in this jurisdiction on approximately four occasions between 2010 and 2014. It was submitted these details were relevant as he was not arrested on foot of the warrant on any of these prior occasions. It was submitted that he has lived at various addresses in this jurisdiction, he didn’t hide his identity and he could easily have been found. It was further submitted that he has put down roots in this jurisdiction, and that the passing of time in relation to the transmission of the warrant - no issue being taken with the execution of the warrant - was having an effect on him and the Court could have regard to this when determining a claim under Article 8.

This courts notes that other than the averment in the affidavit of Mr Polak, there is no other evidence offered by the Respondent in this regard. The court was referred to the dicta of Ms Justice Denham (as she then was) in the case of The Minister for Justice, Equality and Law Reform v. Hall [2009] IESC 40, where she stated that

"There may be situations where a court in this requested State would consider the issue of a delay; it would depend on the circumstances."

The court was also referred to the case of The Minister for Justice, Equality and Law Reform v. Anthony Patrick Gorman [2010] IEHC 210, where Mr Justice Peart referred to the “unusual facts” in that case, and commented that

“[A]n order of surrender on the unusual facts of this case would be a disproportionate measure and would constitute a breach of constitutional rights in relation to the family and Article 8 Convention rights, and would in all the circumstances be unjust and oppressive."

The court was told a similar argument was being made in this case. The court was also referred to the speech of Lord Bingham of Cornhill in EB Kosovo (FC) v. Secretary of State for the Home Department [2008] UKHL 41, which the court was told has been endorsed on a number of occasions since and has been referred to in the T.E. case and in R.P.G. by Mr Justice Edwards.

The court was also referred to the case of The Minister for Justice, Equality and Law Reform v. Kasprowicz [2013] IEHC 531, Mr Justice Edwards stated that

"By the same token delay is routinely relied upon in this Court in the context of objections to surrender based upon article 8 as a factor that may have an effect of diluting an otherwise strong public interest in surrender by tending to contradict any suggestion that there exists a pressing social need for the respondent's surrender. Delay can also serve to amplify or intensify the impact of a proposed extradition measure on the respondent and his family, a matter of which account must be taken by the Court in the balancing exercise that it must conduct in such cases between the public interest in extradition on the one hand and the private rights of the respondent and his family on the other hand."

The Court was further referred to the case of The Minister for Justice and Equality v Wieslaw Ciecko a decision of Mr Justice Edwards of the 18th December, 2013, wherein Mr Justice Edwards stated:

"Now, the Court has identified that there was at the time of Mr Chico's conviction a pressing social need to make him serve his sentence but a lot of water has flowed under the bridge since then, a lot of time has passed. There is no explanation as to why he has not served or been pursued to serve his sentences long ago. The question arises as to whether there continues to be a pressing social need to require him to do so. There may well be. However, on the available information the Court simply does not know if that is in fact the case. What I do know is that the issue of delay was raised by the respondent, the flag was raised and ought to have been recognised on the applicant's side and inquiries ought to have been made of the issuing judicial authority for explanations as to why these delays had occurred and with a view to finding out if indeed there continues to be a pressing social need for the respondent to serve the sentences imposed upon him in all the circumstances of the case."

It was submitted it would have been a very easy matter for the requesting state to outline the delay between the 23rd June 2009 and the date of the transmission of the warrant here - 27th Jan 2014. The court was asked to accept Mr Polak was entitled to leave Poland, despite being referred to as a fugitive by the Polish authorities, to take into account his family situation, and his stress and anxiety. It was submitted the Court should engage into an inquiry in respect of Article 8.

It was accepted that some of the time delay can be explained by virtue of the Respondent’s appeal in Poland, but it was submitted that, once the appeal process is over and the Polish state were aware of Mr Polak's location out of the jurisdiction, a European arrest warrant should have been transmitted to all of the other framework countries and a search should have been conducted.

The Respondent accepted the warrant outlines that there is one offence, but that thereafter there is a lot of extraneous information which could put the Court on inquiry as to whether or not this gentleman's surrender is sought in respect of those other matters as well. It was submitted that there is a contravention of s. 11 of the European Arrest Warrant Act (“the Act”) as the warrant fails to disclose the offence to which the warrant relates. It was further submitted that additional information should be sought either by way of the State seeking it or by way of this Court seeking information of its own motion.

Submissions on behalf of the Applicant
It was submitted that this Court is entitled, under s. 4A of the Act, to presume that the issuing State will comply with the requirements of the framework decision unless the contrary is shown. Therefore, there is a presumption that Poland complied with the framework decision in issuing this warrant and this Court is bound by considerations of mutual trust and co operation in the area of extradition law. It was submitted that the warrant is sufficiently clear, as it seeks the surrender of the respondent for one offence only and it gives the detail and the background of that offence. It was submitted that the background information has to do with the penalty that may be imposed for the offence for which the respondent is sought, which the Court has been told is a maximum of 12 years.

In relation to the issue of delay, it was reiterated the warrant was transmitted to the Irish authorities on the 27th of January 2014 and it was endorsed for execution in this jurisdiction on the 4th of February 2014 and it was executed within three months thereafter. It was submitted that the applicant's averment about coming to the attention of An Garda Síochana four times from 2010 to 2014 is irrelevant to the delay in the case as the respondent wouldn’t have been on the radar until the European arrest warrant was endorsed for execution in this jurisdiction and it was accepted there was no delay on the part of An Garda Síochana in executing the warrant.

Insofar as the Polish authorities are accused of delay between the issuing of the warrant in the District Court and the issuing of the European arrest warrant, the court was referred again to the additional information which refers to the respondent as "hiding out from justice" and also that refers to him as "a fugitive". It was submitted in those circumstances the delay in the transmission of the warrant is understandable. It was also submitted that the delay is this case is not the same as the delay in the Gorman case, and in particular there are no similarities to the “unusual facts” that pertained to the Gorman case.

The court was then referred to the Supreme Court case of The Minister for Justice, Equality and Law Reform v Stapleton, [2008] 1 IR 669, which dealt with the issue of delay and which is summarised in the Court’s decision in Kasprowicz:

"The Court readily accepts that prejudice or potential prejudice to recognised rights which is caused by delay can possibly form the basis of an objection based on section 37 of the Act of 2003. I say possibly because it's not always true that delay can be relied upon in this way. Thus, in the Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669 it was held that a delay issue raised in the context of a respondent's right to an expeditious trial arising under article 8 of the European Convention on Human Rights can in most cases be more efficiently and conveniently decided and debated before the courts of the country where the respondent is to be tried."

In relation to the respondent’s family right, and his family’s rights, the Applicant referred me to the decision in T.E., mentioned supra. In particular, I was referred to the 22 principles are set out in that decision by Mr Justice Edwards.

Decision

1. Defects in the Warrant
This court is satisfied that under s. 4A of the Act, it is entitled to presume that the issuing State, in this case Poland, will comply with the requirements of the framework decision unless the contrary is shown. The court does not accept that the warrant is ambiguous or unclear in relation to the offence for which the Respondent is sought. In the view of this court, it is clear the warrant relates to a single offence, which, following an appeal in relation to the first hearing, was referred to the court of first instance for reconsideration. The Respondent himself accepts the warrant outlines one offence.

This court rejects the arguments that because additional information is set out, this Court it put on inquiry as to whether the Respondent’s surrender is sought in respect of those other matters as well. Further, this court rejects the submission that there has been any contravention of s. 11 of the Act.

2. Delay
This court is bound by the decision of the Supreme Court in Stapleton, and in the instant case, where the alleged delay is a delay of four and a half years by the Polish authorities as opposed to any delay by the Irish authorities, this court is of the view the issue can most conveniently be dealt with in Poland.

Further this court, having heard and carefully considered the submissions, is of the view that in this instance, as in Kasprowicz, delay was not put forward as a factor enuring to the prejudice of any recognised legal right. Delay was put forward on the basis that the period of delay that exists in circumstances where the Respondent contends it is unexplained, notwithstanding that the warrant refers to him as a “fugitive” and “hiding out from justice”, is something which should move the court to refuse surrender, and to seek further information, even by way of its own motion. This court is not persuaded by that submission. In particular, this court notes and has regard to the fact that the delay in Gorman and Ciecko cases was much more considerable than any delay in this case.

It is accepted by the Respondent that no issue is taken in relation to the execution of the warrant, but at the end of submissions, issue was taken with the delay in the hearing of these proceedings.

Mr Polak was arrested on the 13th of May 2014 and the matter came before this court and was adjourned from time to time. Further information was sought following the receipt of Notice of Objection and the Affidavit of the Respondent sworn on the 21st May 2014. The case was listed for hearing on the 7th of October 2014, but this court was told the Respondent left the environs of the court and the case could not proceed, so was listed again for the 8th October. On that date the Respondent did not appear, and a bench warrant was issued. On the 4th November, there was an application for the estreatment of bail monies. This court was told the matter was listed for hearing on the 19th January 2015, but that date was vacated on the 16th December, and the Respondent was admitted to bail by consent. This court is not persuaded there was any material delay in the hearing of these proceedings.

3. The Respondent’s Family Right, and his Family’s Rights
In the decision of the Court in T.E., it is stated that what the court must seek to do is to strike a fair balance between the competing interests at issue, namely the right of the affected person is assessed through his personal circumstances on the one hand and the interests of the community on the other. There is a high level public interest in the implementation of the EAW process, and it is therefore essential that fugitives should be brought to trial and that no sanctuary of immunity should exist for such persons. Inherent in the balancing exercise is the attachment of weight and the assignment of importance to identified factors which the court is permitted to consider.

It is further set out in that decision that a generality of pleading, is likely to carry little weight in this regard, and the court must conduct a fact-specific enquiry into all relevant matters, so that a fair balance can be struck between the rights of the public and those of the person in question, however it is with the trial judge to decide how to proceed.

At paragraph 16 of the principles of that decision it is set out that

“Article 8 does not guarantee the right to a private family life. Rather it guarantees the right to respect for one’s private family life. That right can only be breached if a proposed measure would operate to so as to disrespect an individual’s private or family life. A proposed measure giving rise to exceptionally injurious and harmful consequences for an affected individual, disproportionate to both legitimate aim or objective being pursued and the stated pressing social need proffered justification of the measure, would operate in that way and breach the affected individual’s rights under Article 8”.

At paragraph 21 of the principles, it is stated as follows:

“If children’s interests are to be properly taken into account by an extradition court, it will require to have detailed information about them, and about the family as a whole, covering with all considerations material to or bearing upon their welfare, both present and future. Primary responsibility for the adduction of the necessary evidence rests upon the party raising article 8 rights in support of an objection to their surrender”.

The court having heard the submissions, and having considered the matters as set out in the points of objection, and the affidavit of the Respondent, dated the 22nd day of July 2014, and in particular the last sentence in paragraph 6 of that affidavit, wherein the Respondent states that “I believe that if I am surrendered it would have a detrimental effect of my children”, this court concludes that neither the private interests of the Respondent nor those of the Respondent’s children, or partner cumulatively outweigh the strong public interest in this particular Respondent’s extradition.

CONCLUSION
This court rejects the grounds of objection, and is satisfied that the requirements of s. 16 of the Act have been complied with, and accordingly I will order the Respondent’s surrender to Poland pursuant to s. 16(1) of the Act.

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