Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 316
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Paul Burns

The man had previously been surrendered to the Irish authorities for extradition in 2012 but was released after the Irish/Polish authorities failed to organise his return to Poland within 15 days.

Giving judgment in the case, Mr Justice Paul Burns held that the cumulative effect of the delays in prosecution, the overall time lapse and the respondent’s family needs rendered the extradition application as an abuse of process.

Background

The respondent, Mr Zbigniew Bednarczyk, was the subject of two European Arrest Warrants which issued in 2007 and 2009 respectively. The alleged offences were for entering contracts with no intention to pay and obtaining goods by false pretences. The alleged offending occurred between 1995 and 1998.

At the time the EAWs issued, the respondent was living in Ireland. Subsequently, two applications were brought on foot of the EAWs seeking his return to Poland. The respondent’s surrender was initially ordered by the High Court in April 2012 and the respondent was remanded in custody for surrender.

However, despite some correspondence between the Irish and Polish authorities, the respondent was never extradited. Under section 16(1) of the European Arrest Warrant Act 2003, the respondent could only be detained for 15 days before he had to be released. In this case, the 15-day period lapsed and the respondent was simply let go by the Irish authorities.

The matter was not brought back before the High Court to fix a new date for surrender and there were no further steps taken at that time. The respondent lived normally in Ireland until 2019, when the proceedings were re-instituted by Poland. The respondent was entirely blameless for the failure to extradite him and the failure occurred due to poor communication and coordination between Ireland and Poland.

The respondent was brought back before the High Court following the re-transmission of the EAWs. He objected to extradition on two main grounds. First, he argued that the proceedings were an abuse of process. Second, it was said that his extradition would be a disproportionate interference with his right to a private and family life under the ECHR.

It was submitted by the respondent that the alleged offences occurred up to 24 years ago and the authorities had been extremely casual in the proceedings, with long periods of inertia. Further, it was argued that the extradition would have profoundly negative consequences for the respondent’s son, who relied on the respondent for care of his severe bipolar disorder.

Counsel for the State argued that the respondent should have expected that a further attempt to surrender him would be made and that the case was simply a re-transmission of already-valid EAWs. Relying on the case of Vilkas (Case C-640/15), it was argued that the State should persevere with surrender attempts even if such surrender was not effected due to circumstances beyond the control of the State.

High Court

The court began by outlining the jurisprudence relating to the respondent’s claims to a private and family life under Article 8 ECHR. The court noted that in Minister for Justice & Equality v. Vestartas [2020] IESC 12, the Supreme Court held that the public interest could override a person’s rights under Article 8. Where the requirements of the EAW system were met, there was a clear public interest in surrender being effected.

The court also considered Minister for Justice and Equality v. J.A.T. No. 2 [2016] ISEC 17 in detail. In that case, the Supreme Court outlined a number of factors in concluding that an abuse of process had occurred and that extradition should be refused. The court held that the cumulative effect of factors could result in an abuse of process, and therefore provide a basis for refusing extradition.

The court also considered a minority judgment in the J.A.T. case from Mr Justice Donal O’Donnell, who held that three important factors lead to him refusing extradition. These were 1) the fact that it was a repeat application, 2) the delay in the case and 3) the negative effect on the respondent’s family life. While Mr Justice O’Donnell emphasised that none of these factors were solely sufficient to refuse extradition, the cumulative effect was to create an exceptional case which militated against allowing the surrender.

Applying the case law to the present case, Mr Justice Burns held that there had been a significant lapse in time between the alleged offending and the initial EAWs of between nine and eleven years. If the court applied Vestartas, it would not hold that this delay was so great to justify a refusal to surrender.

However, unlike Vestartas, there had been a long delay in the prosecution of the actual proceedings. The court said: “It is difficult to see how a delay of 7 years in effecting surrender could be justified in this case and I do not believe it has been justified or even adequately explained.” The surrender was allowed to go into abeyance for a prolonged period as a result of the “abject failure” of the Irish and Polish authorities.

The mere re-transmission of the EAWs did not amount to an abuse of process. However, considering all the surrounding circumstances to the case, the court held that the facts of the case were exceptional and “constitute a rare case where surrender should be refused on the grounds of abuse of process”. In that regards, the court considered the inordinate delay, time lapse, the health of the respondent’s son and the manner in which the case had been handled by the authorities as important factors.

Finally, the court held that Vilkas was not an authority for the proposition that a State may permit a prolonged and inexcusable delay in effecting surrender, particularly in the present case where the delay was seven years.

Conclusion

As a result of these findings, the court refused to make an order for the surrender of the respondent.