Judgment Title: MJELR -v- Malek Composition of Court: Judgment by: Peart J. Status of Judgment: Approved |
Neutral Citation Number: [2009] IEHC 152 THE HIGH COURT 2008 70 EXT
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM APPLICANT AND
MAREK MALEK RESPONDENT
The surrender of the respondent is sought by a judicial authority in Poland under a European arrest warrant which issued there on the 2nd August, 2007. That warrant was endorsed for execution here by the High Court on the 16th April, 2008, and the respondent was duly arrested on foot of same on the 1st December, 2008, and, as required by s. 13 of the European Arrest Warrant Act 2003, as amended, was brought before the High Court from where he was remanded from time to time pending the determination of this application for an order for his surrender. No issue is raised as to the identity of the respondent and I am satisfied from the affidavit of Sgt. Martin O’Neill who arrested him on the 1st December, 2008 that he is the person in respect of whom this European arrest warrant has been issued. The respondent’s surrender is sought so that he can serve a sentence of imprisonment which was imposed on him following conviction for two offences committed on the 20th December, 2001. The sentence so imposed was for a period of two years and six months imprisonment. Minimum gravity is therefore satisfied. The entire of that sentence remains to be served. No undertaking under s. 45 of the Act is required as the respondent was present for his trial, conviction and sentence. The warrant states that “after having been convicted and sentenced [the respondent] is a fugitive from justice.”
I am satisfied that there is no reason to refuse to order surrender by reason of any provision of sections 21A, 22, 23 or 24 of the Act, and, subject to reaching a conclusion on the Points of Objection filed his surrender is not prohibited by any provision of Part II of the Act or the Framework Decision.
The offences: Objections: Section 11 – insufficient details contained in the warrant: Section 10 – “fleeing”:
He says also that he never heard anything further about the sentence imposed upon him in Poland until he was contacted by the Gardaí in Mallow on the 28th November, 2008. Upon that contact he attended at Mallow Garda Station voluntarily on the 1st December, 2008 when he was arrested on foot of the European arrest warrant and brought before the High Court. He concludes by saying that he did not flee Poland and that he came to this country only so that he could find employment so that he could maintain his family, and that he believes that “the judgment against me and the operation of my sentence was only finalised whilst I was here in Ireland”, and he seeks his discharge.
Mr. Kelly has submitted that the facts are such that when the respondent came to this State on the 29th September, 2004 he was not fleeing his sentence since it was at that time not enforceable since it had been deferred by the Poznan Circuit Court on the 10th March, 2004. Ms. Cummings however has adverted to the fact that by that order dated 10th March, 2004 the sentence was deferred for six months and that accordingly that deferral was at an end as of the 10th September, 2004, and that accordingly when the respondent left Poland to come here on the 29th September, 2004 he did so in the face of a sentence of imprisonment which he was on that date required to serve. She points to the fact that it was not until January 2005 that the respondent sought a further deferral (which was granted). That application made in January 2005 seems to coincide with the respondent’s return to Poland, as stated by him, in December 2004. It is open to infer that he may have returned in December 2004 in order to make arrangements for that application to be made, but there is no specific evidence about that. I am satisfied as a matter of fact appearing from the documents exhibited by the respondent himself that on the date on which he left Poland, namely 29th September, 2004, the deferral of sentence granted by order of Poznan Circuit Court dated 10th March, 2004 had come to an end almost three weeks previously. It follows that when he so left Poland he did so in the face of an enforceable sentence of imprisonment. In other words he fled, whatever his stated subjective intention is stated to have been in his affidavit. As a matter of fact he left thereby avoiding an enforceable sentence of imprisonment. The fact that at a later date he returned to Poland and may have made arrangements to have a further deferral application made on his behalf does not retrospectively change that fact. It follows in my view that he is, in the words of s. 10 of the Act “a person … (d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she (i) commenced serving that sentence, or (ii) completed serving that sentence”.
It follows that this Court is therefore required to make the order for the respondent’s surrender, and will so order.
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