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Neutral Citation: [2014] IEHC 647 THE HIGH COURT Record No: 2011/31 EXT IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED BETWEEN/ THE MINISTER FOR JUSTICE AND EQUALITY Applicant - AND -
DARIUSZ STALKOWSKI Respondent JUDGMENT of Mr. Justice Edwards delivered on the 18th of November, 2014. Introduction There are three main controversies in the case. In so far as the warrant seeks the respondent’s rendition for the purposes of prosecution the respondent relies upon an abuse of process argument. In addition, the respondent seeks to resist his surrender both for prosecution and for the execution of the said sentence on the grounds of delay, and also on the grounds that his proposed rendition would involve a disproportionate interference with his rights to respect for family life, and privacy, as guaranteed under Article 8 of the European Convention on Human Rights (the E.C.H.R.). To that end, the respondent relies upon s. 37 (a) (i) and (ii) of the European Arrest Warrant Act 2003 (hereinafter “the Act of 2003”). Alleged abuse of process The alleged abuse of process arises in the following circumstances. The respondent having been charged with an offence contrary to Article 284 § 1 of the Polish Penal Code, the case was before the District Court of Toruń - 2nd Criminal Division in June 2010 at the behest of the District Prosecutor’s Office and for the purpose of seeking from that Court an order for the temporary arrest and detention of the respondent for a period of 14 days. (In this Court’s experience such a step is the usual precursor in Poland to the issuance of a European arrest warrant in circumstances where a defendant cannot be located by the police and is believed to be abroad. The prosecutor applies for an order for the temporary arrest and detention of the defendant and once that order is granted it constitutes the enforceable domestic decision or warrant which then allows for the issuance of a European arrest warrant.) At any rate, the Polish court appears to have adverted to the fact that the case against the respondent would, on the basis of the charge then preferred against him, become statute barred on the 17th November, 2010. That being the case the court took the step of writing to the District Prosecutor’s Office in the following terms:
District Prosecutor's Office
Toruń Wschód 87-100 Toruń, ul. Grudziądzka 47
Accordingly, the District Court asks a request for an opinion of the Prosecutor's Office with regard to the abovementioned issues. Attached are the files of the Case No. 4 Ds. 99/02 (1 Volume I)
Judge of the District Court” The respondent contends that the intervention of the District Court of Toruń - 2nd Criminal Division represents an abuse of this Court’s process. In making that case he relies upon the affidavit of the respondent’s Polish lawyer, a Mr Mariusz Stelmaszczyk, sworn in these proceedings on the 21st January, 2014. In his said affidavit Mr Stelmaszczyk deposed, inter alia, to the following matters:
In the Case No. 4 Ds. 99/01 Dariusz Stalkowski was accused of a crime under Article 284 § 1 of k.k. committed on 17.11.2000. Thus the crime was barred on 17.11.2010, whereby the proceedings on the Case No. 4 Ds. 99/01 should be written off. However, on 14.06.2010, still during the proceedings to issue a European Arrest Warrant (Case No. 11 Kop 24/10), the District Court of Toruń sent to the Prosecutor's Office of Toruń -Wschód, a letter in which it is stated that the crime under the Case No. 4 Ds. 99/01 was time-barred on the date 17.11.2000. Accordingly, the District Court of Toruń asked the Prosecutor's Office to consider changing the legal classification of the crime alleged to: Dariusz Stalkowski to the crime under Article 284 § 2of k.k., and Article 278 § 1 of k.k. together with change of description of the way of commitment of the crime. In addition, the District Court of Toruń explained in that letter, that such a change (from Article 284 § 1 of k.k. into Article 284 § 2 of k.k. and Article 278 § 1 of k.k.) "would result in a significant extension of period of the possible prosecution of the sought person. This problem, in turn, is of particular importance for the effectiveness of the international search." It should be explained at that point that the crimes under Article 278 § 1 of k.k. and Article 284 § 2 of k.k. are threatened by a maximum penalty of five years imprisonment, which under the provisions of the Polish Crime Code are barred by 20 years period after the commission of the crime. After having read the letter of the District Court of Toruń, the Prosecutor has on 22.06.2010. issued a decision on change of the allegation and has charged Dariusz Stalkowski with a crime under Article 284 § 2 of k.k., that shall be barred only after November 17, 2020. Dariusz Staikowski was never Informed about that change, and he was never presented the decision of 22.06.2010. While, the prosecutor did not justified in any way, why he changed to Dariusz Staikowski the allegation under Article 284 § 1 k.k. into Article 284 § 2 of k.k., even though, since the decision of 23.02.2001 to present charges of committing crime under Article 284 § 1 of k.k. not a single new evidence was presented, including not a single evidence that would alter the facts of the case and that would justify changing the description of how Stalkowski Dariusz had committed the alleged crime. These facts justify the assumption that there may be an illegal attempt to influence and pressurize the Prosecutor conducting the Case No. 4 Ds, 99/01 by the District Court of Toruń, even though according to Article 8 paragraph 1 of the Act on Prosecutor, each Prosecutor is independent, and any possible orders, guidelines and instructions may not apply to the content of a procedural action and can be given only by superiors of the prosecutors (and not the courts!). The ability to influence and pressure are additionally proved by the fact that for some unknown reason the letter of the District Court of Toruń of 14.06.2010 was not included by the Prosecutor to the files of Case No. 4 Ds, 99/01 (It is only included in the files of the District Court of Toruń of the case concerning issuance of the European Arrest Warrant) as if they wanted to hide them from people reading files of the Case No. 4 Ds. 99/01. The effect of changing the description of the legal classification into Article 284 § of 2 k.k. was a forced extension of the limitation period of the crime the commitment of which was alleged to Dariusz Staikowski, which in turn made it possible to issue on 27.10.2010, the decision on the European Arrest Warrant.”
The Court has read and considered all of these materials. While not all of them are directly relevant to the issue before the Court they undoubtedly serve to illustrate some of the many and diverse situations in which a Court may, in the exercise of its inherent jurisdiction, act with a view to seeking to protect its own process from being abused. Many of the cases cited, however, are not extradition or rendition cases and do not concern the exercise of the abuse of process jurisdiction in that particular context. Moreover, of those that are indeed concerned with the exercise of the abuse of process jurisdiction in the sphere of extradition or rendition, many are concerned with a different type of allegedly abusive circumstance than that under present consideration e.g., Minister for Justice and Law Reform v Tobin (No 2) which concerned a possible Henderson v Henderson (1843) 67 E.R. 313 type of abuse; Bolger v O’Toole which was concerned with an estoppel / res judicata type issue and Minister for Justice and Equality v Gherine which concerned the maintenance of a request for a respondent’s rendition so that he might be prosecuted, in circumstances where he had in fact already been tried in absentia, and which trial had resulted in him being convicted of one charge but acquitted of others. The most ostensibly relevant cases, and those upon which the respondent, in particular, has placed most reliance, are the conjoined cases of: R. (Bermingham) v. Director of the Serious Fraud Office and R. v Government of the United States; the conjoined cases of R. (Government of the United States of America) v Bow Street Magistrates Court and R. (Central Examining Court, Criminal Court of the National Court, Madrid) v Bow Street Magistrates Court; Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece; Sofia City Court, Bulgaria v Dimintrinka Atanasova-Kalaidzhieva and Mohammed v The Court of Appeal, Paris [2013] EWHC 1768 (Admin). As none of these cases are Irish cases they do not represent binding precedents. Nevertheless, they are valuable for their persuasive influence. They must be approached with a little caution as they concern a jurisdiction assumed by the High Court of England and Wales in respect of extradition and rendition cases arising under the (UK) Extradition Act, 2003 which, while bearing similarity in some respects with the corresponding statutory regime in Ireland (under the Extradition Acts 1965 to 2012 and under the Act of 2003, as amended) establishes, in certain other respects, a markedly different statutory regime of extradition and rendition to that operated here. R. (Bermingham) v. Director of the Serious Fraud Office and R. v Government of the United States concerned an extradition request by the United States of America in respect of three British citizens who were wanted to face trial on fraud charges before the United States District Court for the Southern District of Texas. The requested persons sought to resist their extradition on numerous grounds one of which was that the requesting State was seeking to abuse the process of the United Kingdom courts in two respects: firstly, in refusing to disclose any of the evidential material it possessed beyond what was contained in the extradition request, and secondly, in deliberately delaying the seeking of the requested persons’ extradition pending the enactment of a new statute, thereby denying the requested person’s legal safeguards that they would otherwise have enjoyed. The question of whether the District judge hearing the extradition case possessed any inherent jurisdiction to refuse an extradition order on the ground that the proceedings were an abuse of the process of the court on the part of the prosecutor was hotly disputed. The District judge concerned proceeded on the basis that he had such jurisdiction. However, he found that there had not in fact been any abuse of the Court’s process. Ultimately, the District judge ordered for the requested persons’ extradition. The requested persons then appealed the District judge’s extradition order and the appeal was heard by a divisional High Court consisting of Laws L.J. and Ouseley J. Dealing with the question as to whether or not an extradition court has an inherent jurisdiction to refuse an extradition order on the ground that the proceedings were an abuse of the process of the court on the part of the prosecutor, Laws L.J. stated (at paras. 93 to 97):
‘If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds that it would be contrary to natural justice to surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts’ 94. In Schmidt [1995] 1 AC 339 the House of Lords had to consider an argument that extradition proceedings under the 1989 Act were vitiated by abuse of process: the applicant had been induced to come to the United Kingdom by a ruse on the part of a police officer. Lord Jauncey referred to "the principal safeguard" resting in "the general discretion conferred upon the Secretary of State by Parliament in section 12" (379A-B), and held, following Atkinson, that the magistrate acting under the 1989 Act possessed no abuse jurisdiction (379B). Their other Lordships agreed. 95. In Gilligan [2001] 1 AC 84 their Lordships' House was concerned with proceedings brought under the Backing of Warrants (Republic of Ireland) Act 1965. In one of the two linked cases heard by their Lordships the Irish authorities had applied to a stipendiary magistrate for an order that the applicant, who was wanted on 18 arrest warrants issued in Dublin and had also been arrested and charged with offences in England, be handed over to the Garda. The applicant contended that the application was abusive, claiming among other things that he had been improperly arrested in England so as to hold him while the Irish charges were drawn up. It was held that the magistrate possessed no abuse jurisdiction. Lord Steyn referred (97G) to the ability of the Irish courts to guard against abuses; this was seen as an analogue to the protection in extradition cases under the 1989 Act afforded by the Secretary of State's discretion, which as I have shown was critical in Schmidt. 96. In my judgment the reasoning in these cases of high authority has no application in the context of the 2003 Act. Under its provisions the Secretary of State has no statutory discretion to refuse extradition. The safeguard emphasised in Atkinson and Schmidt is lacking. Moreover in Part I cases, and Part II cases where the category 2 territory has (like the United States) been designated for the purpose of s.84, the prosecutor is not required to establish a prima facie case on the evidence. Under the old law that requirement was itself an important discipline. Its absence makes the need for a residual abuse jurisdiction all the plainer. 97. I should not leave the point without considering the nature of the juridical exercise involved in concluding, as I would, that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court. Lord Reid, in the passage from Atkinson which I have cited, would if necessary have inferred that the magistrate had power to refuse to commit. Now, it is plain that the judge's functions under the 2003 Act, and those of the magistrate under the predecessor legislation, are and were wholly statutory. He therefore possesses no inherent powers. But that is not to say that he may not enjoy an implied power. The implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime's integrity must not be usurped. Where its integrity is protected by other powers, as in Atkinson, Schmidt and Gilligan, the implication is not justified. But under the 2003 Act that is not the case. The implication of an abuse jurisdiction - Lord Reid's inference - follows.” In the first of these conjoined cases, the one that actually concerned the Tollmans, the claimant government had initially sought their extradition in 2003 pursuant to the (UK) Extradition Act 1989. In January 2004 the (UK) Extradition Act 2003 came into force, although the (UK) Extradition Act 2003 (Commencement and Savings) Order 2003 as amended, provided that it would not apply to any request for extradition received on or before the 31st December, 2003. In April, 2004 the claimant, believing that the extradition of Mr and Mrs Tollman could be more satisfactorily achieved under the Act of 2003, withdrew its requests for their extradition and, in October 2004, made new requests, in substantially similar form, under Part 2 of the Act of 2003. Mr and Mrs Tollman contended that the proceedings under the Act of 2003 were unlawful because that Act did not apply to the requests for their extradition or, in the alternative, that the use of the Act of 2003 amounted to an abuse of the process of the court in that the withdrawal and resubmission of the extradition requests was a deliberate attempt to defeat the provisions of the Commencement Order. Mr and Mrs Tollman sought full disclosure of any material that would assist in determining those issues. The District judge ruled that the Act of 2003 applied to the proceedings. He also ruled that he had power to make an order for disclosure in relation to the abuse of process application since, for that purpose, he was acting outside the extradition hearing and he made an order for disclosure as sought, subject to determining the question of legal professional privilege and public interest immunity. In a further ruling the District judge dismissed the claimant's claims for public interest immunity and legal professional privilege in relation to the documents sought. The claimant applied for judicial review, seeking, inter alia, a declaration that the Act of 2003 applied to the proceedings, a declaration that the District judge should hear any evidence and argument that the extradition requests were an abuse of process in the context of Part 2 of the Act of 2003 and an order quashing the order for disclosure. In the second case, the claimant court issued European arrest warrants against seven defendants, pursuant to Part 1 of the (UK) Extradition Act 2003, after two earlier attempts to secure their extradition had failed because the warrants were defectively drafted. The defendants contended that the warrants, which alleged the importation and exportation of cocaine, were so poorly drafted and translated that they did not satisfy the requirements of Part 1 of the Act. They further claimed that the warrants included a "catch-all" description of the criminal conduct in impeccable English which was attributable to advice improperly given by the Crown Prosecution Service in circumstances that amounted to an abuse of process. The District judge ordered the claimant and the Crown Prosecution Service to disclose all documents relevant to the issue of what input, drafting or other help the British authorities had given the claimant, save any documents in relation to which a claim for public interest immunity or legal professional privilege was made and upheld. The claimant sought judicial review of that decision. The judicial review proceedings were heard by a divisional High Court. Giving judgment for the Court, Lord Phillips of Worth Matravers C.J., enunciated the applicable principles (at paras. 82 to 84) as follows:
‘If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint.’ 83. The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused, if put on enquiry as to the possibility of this. The judge will usually, though not inevitably, be put on enquiry as to the possibility of abuse of process by allegations made by the person whose extradition is sought. 84. The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred. The common issue in the two sets of appeals before the court relates to how he should do this.” Lord Philips continued (at paras. 89 to 93):
90. The information and evidence obtained should be made available to the party contesting extradition. We agree with Mr Gordon that the standards required by Article 13 of the ECHR should apply to the extradition proceedings. Equality of arms requires that, in normal circumstances, the party contesting extradition should be aware of, and thus able to comment on, the material upon which the court will be basing its decision. 91. What if the judicial authority or the requesting State is only prepared to provide the court with the information or evidence on terms that it is not shown to the party contesting extradition? We do not consider that principles of public interest immunity or legal professional privilege are germane, for the judge is not in a position to order the judicial authority or the requesting State to disclose information or evidence if it is not prepared to do so. Nor is it possible to adopt directly the approach to a claim for public interest immunity laid down by the House of Lords in R v H and others [2004] 2 AC 134. That approach is only viable when the tribunal considering the material for which immunity is claimed differs from the tribunal that will be determining the substantive issues. 92. There may be occasions where a judicial authority or requesting State is content that the court should see evidence but, on reasonable grounds, is not prepared that this should be disclosed to the person whose extradition is sought. The evidence might, for instance, disclose details of ongoing investigations into suspected co-defendants. The judge will be capable of evaluating the material that is provided to him, whether it is favourable or unfavourable to the person resisting extradition. The issue will then be whether, if a decision is reached without allowing that person the chance to comment on the material, the procedure will fail to satisfy the requirement of fairness. That question will be fact specific and must be left to the judge to decide on the particular facts. If the judge concludes that fairness requires that the material be disclosed, but the requesting authority or State is not prepared to agree to this, then the appropriate course will be for the judge to hold that fair process is impossible, that to grant the application for extradition in the circumstances would involve an abuse of process, and to discharge the person whose extradition is sought. 93. We believe that the scenario described above will be rare. Once it has been shown that there is an issue of abuse of process that requires investigation, it should be possible, provided that the parties act reasonably, to agree material facts, or that the material necessary to resolve any issue is placed in the public domain.” The ambit of the jurisdiction identified in R (Bermingham) v Government of the United States of America and, confirmed in Tollman, was further considered in Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009] 1 WLR 2384 (Laws L.J. and Ouseley J.) in which Ouseley J., giving the judgment of the court, stated:
34. The abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial. 35. The reason for the distinction lies in the respective functions of the courts of the requested and requesting state in the European arrest warrant framework. The former are entitled to ensure that their duties and the functions under the Extradition Act 2003 Part 1 are not being abused. It is the exclusive function of the latter to try the issues relevant to the guilt or otherwise of the individual. This necessarily includes deciding what evidence is permissible, and what weight should be given to particular pieces of evidence having regard to the way in which an investigation was carried out. It is for the trial court in the requesting state to find the facts about how statements were obtained, which may go to admissibility or weight, both of which are matters for the court conducting the trial. It is the function of that court to decide whether evidence was improperly obtained and if so what the consequences of the trial are. It is for the trial judge to decide whether its own procedures have been breached. 36. As those issues are for decision by the trial court in the requesting state, it cannot be an abuse of the extradition process of the requested state for such an issue to be shown to exist and for its resolution to be available only in the courts of the requesting state. The courts of the requested state cannot decide, let alone do so on partial and incomplete evidence, what it is for the courts of the requesting state within the European Arrest Warrant Framework (European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender of procedures between member states … ‘the framework decision’) to decide about such issues and with what effect on the trial.” Returning to the circumstances of the present case, counsel for the respondent submitted that while the statutory regime contained within the Act of 2003 does not provide explicitly for a bar to surrender on limitation grounds; the Court's jurisdiction on abuse of process grounds can be used as a bar. In Mohammed v The Court of Appeal, Paris the High Court of England and Wales (Queen's Bench Division) considered whether the surrender of a person should be ordered in circumstances where he alleged that the execution of the sentence the subject matter of the warrant was time-barred. The Court highlighted a number of deficiencies in the requested person’s argument; firstly, the opinion of the French lawyer engaged by the requested person was equivocal as to whether or not the sentence was in fact time barred and secondly, there was unequivocal evidence from the French Authorities that indicated that execution of the sentence was not in fact time barred. While, on the facts of the case before it, such a contest was more properly a matter for the courts of the issuing state, Foskett J. accepted that such a limitation point might, in certain circumstances, be properly brought in the executing state as a bar to surrender. He stated (at para. 12):
In response, counsel for the applicant points out that, to date, there has been no Irish case where the Tollman principles have been applied to an “abuse of process” argument about a request under the European Arrest Warrant Act, 2003. Indeed, he observes, the cases which have been concerned with an alleged “abuse of process” before the High Court and Supreme Court have involved successive European arrest warrant applications against the requested person for one reason or another. Such cases include Minister for Justice and Law Reform v Tobin (No 2) [2012] IESC 37 (Unreported, Supreme Court, 19th June 2012) and Minister for Justice and Equality v. J.A.T. [2014] IEHC 320 (Unreported, High Court, Edwards J, 9th May, 2014). Counsel for the applicant submitted that there are sound reasons why the Irish courts have not considered a Tollman type argument in European arrest warrant applications. There is a general presumption contained in s.4A of the Act of 2003 that the issuing state will act in accordance with its international obligations to respect fundamental rights and freedoms. Furthermore, it was submitted the jurisprudence of the Supreme Court indicates that the High Court must trust the criminal justice system in the issuing state unless some fundamental defect and lack of fairness in procedures has been exposed: Minister for Justice, Equality and Law Reform v. Brennan [2007] 3 IR 732. In Minister for Justice, Equality and Law Reform v. Brennan Murray C.J. (as he then was) stated (at paras. 35 - 38 inclusive):
36. However the argument of the respondent goes much further. He has contended that the sentencing provisions of the issuing state, in this case the United Kingdom, did not conform to the principles of Irish law, as constitutionally guaranteed, governing the sentencing of persons to imprisonment on conviction before our courts for a criminal offence. 37. The effect of such an argument is that an order for surrender under the Act of 2003, and indeed any order for extradition, ought to be refused if the manner in which a trial in the requesting state including the manner in which a penal sanction is imposed, does not conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country. That can hardly have been the intention of the Oireachtas when it adopted s. 37(1) of the Act of 2003 since it would inevitably have the effect of ensuring that most requests for surrender or extradition would have to be refused. And indeed if that were the intent of the Framework Decision, which the Act of 2003 implements, and other countries applied such a test from their own perspective, few, if any, would extradite to this country. 38. Indeed it may be said that generally extradition has always been subject to a proviso that an order for extradition, as with any order, should not be made if it would constitute a contravention of a provision of the Constitution. I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution.”
"The making of the extradition arrangements presupposes that the Government and the Oireachtas are satisfied, amongst other things, that, an Irish citizen being extradited to the United Kingdom, as in this instance, or to any other state with which Ireland has such arrangements, will not have his constitutional rights impaired." In Wyatt v. McLoughlin [1974] I.R. 378 at p. 390 Finlay J. stated:- "I am satisfied that I am entitled to have regard to the fact that an extradition Act is necessarily the consequence, … of an agreement between two sovereign states reposing confidence in each other, and I should not, in the first instance, suppose that the court and other authorities of the country by which extradition is sought are using a deceit so as to secure the apprehension of the plaintiff." I take this as a correct statement of the law and it is not affected by the decision of this court in that case on appeal. In fact an example of that approach is to be found in the statement of Walsh J. (at p. 395) in giving a majority judgment in the appeal in Wyatt v. McLoughlin when he stated:- "Until there is some reason to believe to the contrary, it is to be assumed that a statement of facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful statement of the facts of the case in respect of which the arrest is sought." That approach is again underscored by the principles and objects recited in the preamble to the framework decision when it refers to mutual recognition of judicial decisions, judicial cooperation and a high level of confidence between member states. 42 That is not to say, as the judgments which I have cited and others have made clear, that the courts are prevented from examining applications for surrender with a view to being satisfied that relevant legislation has been complied with and personal rights which are guaranteed are not infringed. But they do so with a benefit of a presumption that the issuing state complies with its obligations. If there is cogent evidence to the contrary then an issue may arise. A mere assertion of non-compliance or the mere raising of a possibility of non-compliance, which is the case here, is not sufficient to dislodge the presumption of compliance. If that were the case it would in effect convert the presumption of compliance into a presumption of non-compliance.”
It was submitted that it would be inappropriate for this Honourable Court to engage in such an exercise unless there is evidence of some sort of flagrant denial of the precepts of fundamental fairness in the issuing state that would infringe the respondent’s personal rights. This Court was referred in that regard to its own judgment in Minister for Justice and Equality v. Shannon [2012] IEHC 91(Unreported, High Court, Edwards J, 15th February, 2012) where it stated:
It was further submitted that, when one looks at the facts of the present case, there is no cogent evidence tending to show a fundamental defect in the system of justice of the issuing state. The height of the respondent’s evidence is that the charge may have been changed against him. There is no suggestion that this is something that is illegal under Polish law, and it was submitted that the respondent’s expert’s silence on that matter is significant. Rather, all the Court has before it is commentary to the effect that there may have been an attempt to influence or pressurise the prosecutor in question. Counsel for the applicant characterises this as speculative, and says that no inference or implication to that effect arises from a proper reading of the letter dated the 14th June, 2010 from the District Court of Toruń - 2nd Criminal Division to the District Prosecutor’s Office. Finally, counsel for the applicant contends that while the respondent has referred the Court to a significant amount of case law about abuse of process in domestic criminal proceedings where there is an alleged “manipulation” of statutory time periods, this jurisprudence is neither apposite nor relevant to the circumstances of the present case as the High Court is not engaged in a judicial review of the procedures and practices followed or adopted in the present case within the Polish criminal justice system. The Court’s decision on the abuse of process issue. However, the Court does not agree with counsel for the applicant that in order to rebut either the non-statutory presumption in respect of past conduct, or the statutory presumption in respect of future conduct, a respondent must necessarily be able to point to a fundamental defect in the system of justice in the issuing state. That is certainly required if an objection to surrender is based upon some perceived egregious circumstance deriving from a systemic or structural problem with the criminal justice system in the issuing state, such as was instanced by Murray C.J. in Minister for Justice, Equality and Law Reform v. Brennan. However, even where there is nothing systemically or structurally wrong with the system of justice in the issuing state, both the non-statutory presumption in respect of past conduct, and the statutory presumption in respect of future conduct, are capable of being rebutted by evidence of bad faith on the part of issuing state and its authorities, including the issuing judicial authority. For a requesting state to make an extradition or rendition request in bad faith would constitute an attempt to abuse the process of the courts of an executing state. While this will be true in every such case, it is recognisable as such with particular clarity within the European arrest warrant system in circumstances where the Framework Decision proclaims the system’s mechanism to be based upon “a high level of confidence between member states”, and that the principle of mutual recognition which underpins it represents the “cornerstone” of judicial co-operation. While this Court has had to determine a number of cases in which there were objections to extradition or rendition on the basis of alleged abuses of the process, it has had to consider relatively few cases in which the alleged abuse of process was based upon actions said to have been motivated and carried out in bad faith by the authorities in an issuing state, be those authorities the police, the prosecutor, the issuing state’s central authority or the issuing judicial authority. However, the Court did directly consider such issues in the related cases of Minister for Justice and Equality v Brunell [2014] IEHC (Unreported, High Court, Edwards J, 21st February 2014) and Minister for Justice and Equality v McArdle [2014] IEHC (Unreported, High Court, Edwards J, 21st February 2014). Amongst the issues that the Court was required to engage with and determine in both of these cases was a contention on the part of the respondents that the prosecutor in the issuing state, who was also the issuing judicial authority, having been advised of the terms of s. 21A of the Act of 2003 as amended by s.79 of the Criminal Justice (Terrorist Offences) Act 2005 by the Irish Central Authority, had acted in bad faith by strategically preferring charges against the respondents solely for the purpose of circumventing the said s. 21A, and that in doing so he had attempted to abuse the process of this court. While the Court ultimately found in both cases that there was no cogent evidence of bad faith on the part of the prosecutor, and consequently no attempt to abuse this Court’s process, the Court recognised the existence of an inherent jurisdiction to protect its own process in the event of it being so satisfied. This Court was not asked to consider and approve of the Tollman principles in the cases of Brunell and McArdle, respectively, and it has not been suggested that they have ever been considered by any differently constituted High Court in this jurisdiction, or indeed by the Supreme Court. This Court has no difficulty in approving of the following propositions expounded at para. 84 of the judgment of Lord Phillips of Worth Matravers C.J., in Tollman:
While such a communication might appear to be unorthodox or unusual when viewed through the prism of our common law legal system with its adversarial criminal procedure, it requires to be recognised that Poland has a fundamentally different civil legal system with an inquisitorial criminal procedure. In the latter type of system the relationship between court and prosecutor is different in many respects to that which obtains in our own legal system. There is no evidence that a communication of the type described is unorthodox or unusual or irregular in Poland The high water mark of the evidence adduced by the respondent is the “assumption” of his Polish lawyer that “there may have been (the Court’s emphasis) an illegal attempt to influence and pressurise the prosecutor”, who is independent of the court. In the Court’s view counsel for the applicant is right in characterising this as nothing more than speculation. The Polish lawyer does not say in terms that what occurred was in fact illegal, or that undue pressure or influence was in fact brought to bear. He does not suggest that it is unheard of in Poland for a Court to seek the opinion of the prosecutor in a case before it concerning an issue of the type canvassed in the letter of the 14th June, 2010. The Polish lawyer merely speculates that because the prosecutor preferred a new charge shortly after receiving the court’s letter that he might have been unduly influenced. However, the Court can not act on such speculation and there is no cogent evidence otherwise to support an inference of bad faith or illegality. A further point that ought to be made is that the communication complained of, and the substitution of charges, predated the issuance of the European arrest warrant, and it all occurred within the issuing state. The point made by counsel for the applicant to the effect that this Court has no power or jurisdiction to judicially review decisions of the authorities in Poland is well made. If the respondent believes that he was subjected to an unfair procedure by the prosecutor before the District Court of Toruń - 2nd Criminal Division, he must look to the authorities and/or the courts of the issuing state for his remedy. The respondent’s Polish lawyer has confirmed that it is open to him to apply to the Ombudsman, alternatively to the General Prosecutor, in Poland requesting them to make a complaint in cassation on his behalf. The Court is not disposed in the circumstances to uphold the objection based upon abuse of process. Objection based upon delay as a stand alone ground In the present case, counsel for the respondent has sought to argue that the Court has an inherent jurisdiction to refuse surrender on the grounds of delay based on domestic jurisprudence which requires bench warrants, committal warrants and other domestic warrants of apprehension to be executed promptly and without delay. In support of this argument the Court has been referred to passages from Minister for Justice and Equality v Stapleton [2008] 1 IR 669; Minster for Justice Equality and Law Reform v Hall [2009] IESC 40 (Unreported, Supreme Court, Denham J (nem diss) 7th May 2009); Minister for Justice and Equality v Ostrowski [2013] IESC 24, (Unreported, McKechnie J., Supreme Court, 15th May 2004 ); Cunningham v. The Governor of Mountjoy Prison [1987] ILRM 3; Dutton v District Justice O'Donnell [1989] I.R. 218; Dalton v Governor of the Training Unit Glengarriff Parade [1999] 1 ILRM 439; Casey v. Governor of Cork Prison [2000] IEHC 64 (Unreported, High Court, Herbert J, 13th September 2000); Dunne v Director of Public Prosecutions (Unreported, High Court, Carney J., 6th June, 1996); Director of Public Prosecutions v Cormack and Farrell [2009] 2 IR 208. In this Court’s assessment a European arrest warrant is not analogous to a bench warrant or a domestic arrest warrant. In the Dunne case, Carney J. stated:
"THIS IS TO COMMAND YOU to whom this warrant is addressed to arrest the said Shane Dunne of 26 Rutland Avenue, Dublin 12 and to bring him without any delay before me or another Justice or Peace Commissioner to be dealt with according to law."
This is also the case in respect of domestic bench warrants. The position was succinctly stated by Kearns J. in Director of Public Prosecutions v Cormack and Farrell [2009] 2 IR 208 (at para. 42) when he stated:
The Court is not disposed to uphold the objection based upon delay as a stand alone ground. Article 8 based s. 37 objection. |