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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice and Equality -v- Antkiewicz [2014] IEHC 650 (19 December 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H650.html Cite as: [2014] IEHC 650 |
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Neutral Citation: [2014] IEHC 650 THE HIGH COURT [2013/162 EXT.] BETWEEN THE MINISTER FOR JUSTICE AND EQUALITY APPLICANT AND
PIOTR ANTKIEWICZ RESPONDENT RULING/JUDGMENT of Ms. Justice Murphy delivered the 19th day of December, 2014 Introduction 2. In the course of the section 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time ultimately coming before the Court for the purposes of a surrender hearing on 3rd July, 2014 which continued on 6th October, 2014 and the 3rd November, 2014. 3. The respondent does not consent to his surrender to the Republic of Poland. Accordingly this Court is now being asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing the respondent be surrendered to such person as is duly authorised by the insuring state to receive him. 4. Points of Objection 5. The evidence
He ordered Pawel Kowalczyk, being a person entitled to issue documents in form of records of scrap metal purchase from natural persons, to attest an untruth via filling in the following records with untrue details as to quantities and kinds of bought up scrap metals and purchase prices which were of legal meaning for the determination of the scope of business, and he ordered him (Pawel Kowalczyk) to forge signatures of persons described as scrap metal sellers, and which documents are enumerated in pages 1232-1238. (2) In a period from 25th February 2005 to 21st December 2006 in Legnica acting as the owner of the Skup Surowców Wtórnych COL-MET Piotr Antkiewicz company [scrap metals buying up company], and fulfilling criteria of continuous offence, i.e. in short intervals acting to satisfy the same intent, he provided untrue details in his VAT-7 tax returns covering the period from January 2005 to November 2006 submitted to the Revenue Office in Legnica, in such a way that he indicated the tax assessed in the said tax returns in a total amount of PLN 1,165,811.00 resulting from invoices documenting transactions which in fact had not occurred, and with persons who had not run any real businesses, and he indicated the tax due in a total amount of PLN 1,296,913.00 resulting from invoices which did not reflect in a real manner the transactions of scrap metal buying up, in result of which he exposed the reduction of the tax amounting to PLN 1,165,811.00 (page 1248). (3) In a period from 26th January 2007 to 25th April 2007 in Legnica, fulfilling criteria of continuous offence, in order to suppress running a business in the scope of scrap metal and wooden palette buying up he used a name of another company i.e. KONGLOMERAT GPP Witold Szymczak, ordering to issue 57 sales invoices specified in details in pages 1248-1249, in which he was not showed as a party of transactions though he in fact participated in scrap metal and wooden palette buying up, in result of which he exposed the reduction of the tax amounting to PLN 136,690.48 due to non payment of this tax liability by Witold Szymczak. 7. At paragraph B of the warrant, the decision on which the warrant is based is said to be an enforceable verdict on provisional detention being the “judicial decision of regional court in Legnica of 15th October 2009 in case file number VI Ds. 3/10 (former No. V Ds. 26/06) on application of preventive measure in form on pre-trial detention (emphasis added) for a period of 14 days since the day of apprehension (II Kp 769/09)”, an “enforceable verdict on application of another measure consisting in deprivation of freedom” being the “decision of the Public Prosecutor of Regional Prosecutor’s Office in Legnica of 5th November 2009 in case file No. VI Ds. 3/10 (former number No. V Ds. 26/06) on institution of seeking by wanted notice final verdict”. The file number in which the verdict was made is stated to be VI Ds. 3/10/Sp (former No. V Ds. 26/06). 8. At paragraph C of the warrant the potential sentences for the three offences are set out. Offence number 1 carries a potential sentence of five years deprivation of liberty. Offence 2, being an offence against the tax penal code, carries a potential sentence of five years deprivation of liberty. The third offence, which is another offence contrary to the tax penal code, carries a potential sentence of three years deprivation of liberty. The warrant goes on to specify the effect of the order of the regional court and it is specified to be fourteen days of deprivation of liberty (referring to provisional (pre-trial) detention). At paragraph F of the warrant the time limitation period for prosecution is stated to expire on 25th April 2027. The judicial authority which issued the warrant is identified as the District Court of Legnica III Criminal Department and the judge is named as Bartlomiej Treter. 9. Upon receipt of the warrant and prior to submitting it to the High Court for endorsement the central authority wrote to the judge who issued the warrant on the 8th April 2014 looking for the following information;
(2) What control did Piotr Antkiewicz exert over Marek Sekowski and Pawel Kowalczyk? (3) Were/Are Marek Sekowski and Pawel Kowalczyk implicated in the VAT fraud? (4) Were/Are Marek Sekowski and Pawel Kowalczyk being prosecuted as co-defendants with Piotr Antkiewicz or are they being prosecuted in any way in connection with the VAT fraud alleged against him? (5) Please confirm that Piotr Antkiewicz is being sought for trial.
12. On the 7th June 2014, the central authority made a further request of the Polish authorities seeking clarification as to the reason for completion of sections C2 and C3 in what otherwise appeared to be a prosecution warrant. The response of the Polish authorities dated 17th June 2014 states inter alia:
The European arrest warrant in respect of Piotr Antkiewicz was issued for detention of the named and his remand (pre-trial detention) for a period of 14 days since detention and surrender of the named for conducting penal proceedings against him (emphasis added). In event when Piotr Antkiewicz has been detained and surrendered to Poland, a public prosecutor shall make a decision within 14 days on possible extension of the pre-trial detention period. 14. No further correspondence ensued before the warrant was executed by the High Court on 2nd July 2013. An affidavit of the respondent, sworn and filed on 5th March 2014 sets out the factual basis underpinning the respondent’s objections to surrender. He avers that he came to Ireland in February 2008 and that his reason for leaving Poland was that he had no money to live. He avers that his son Marcin Antkiewitz and his granddaughter live in Ireland. He states that he worked as a package delivery driver but he no longer works. At paragraph 5 he refers to his state of health. He says: “I am of ill health. On 21st January 2014 I suffered a heart attack outside Court 21, Courts of Criminal Justice, Parkgate Street, Dublin 8. I say that I was taken to the Mater Misericordiae University Hospital, Eccles Street, Dublin 7. I say that I was admitted to the Mater Hospital on 21st January 2014 as an inpatient of the Cardiology Unit” and he exhibits a letter from the Mater Hospital confirming the facts. At paragraph 6 of his affidavit he says that while in the Mater Hospital he underwent coronary artery stenting and was discharged on 28th January 2014. He exhibits a letter from his G.P. confirming the fact of a heart attack and the treatment afforded to him and the fact that as of 31st January 2014 he was still in the recovery phase post operation. The respondent avers that in the event of his surrender he will not receive the medical care that he is currently receiving. He avers that he has no medical facilities in Poland sufficient to deal with his undoubted cardiac condition. Furthermore the respondent avers that he has difficulties with his spine as a result of an assault on him on 26th October 2011 in Palmerstown, Dublin 20. He avers that his spinal condition is reviewed by the spinal unit in the Mater Hospital regularly and that he has ongoing physiotherapy with the Health Service. He says that in the event of his surrender he will not be able to stay with his elderly mother and sister who live together in Poland. He avers that having nowhere to stay will make it difficult for him to get bail pending any hearing. 15. At paragraph 11 of his affidavit he avers that he has met with the prosecutor in the case but he does not give a date for that meeting. However, given his averment that he came to Ireland in February 2008 one can reasonably draw the inference that it was prior to that date. He avers that the prosecutor showed him a document which outlined that he is a suspect. He avers that he has not been presented with any charges and it is his belief that he is still a suspect. A supplemental affidavit was filed on 25th July 2014 in which the respondent gave an update in relation to his medical condition, in particular his cardiac difficulties. The respondent exhibited a letter confirming that he is on a cardiac rehabilitation program with the Mater Cardiology Unit which was due to commence in August and last until September 25th. 16. The section 16 hearing commenced on 3rd July 2014 and the Court requested pursuant to s. 20(1) of the European Arrest Warrant Act, 2003 and Article 15.2 of the Framework Decision that the issuing judicial authority be asked to provide the following additional information. The question asked by the Court was “what is to happen to the respondent if the High Court surrenders him to the Polish authorities? Please set out the process following his surrender.” A reply, dated 9th July 2014, was received from the issuing judicial authority. It states:
18. Correspondence In relation to offence number 1 on the warrant which is described in the warrant as an offence against credibility of documents under article 270§1 of the penal code and article 271§1 of the penal code, counsel for the applicant submitted that the actions described would constitute an offence in this jurisdiction under s. 6 of the Criminal Justice (Theft and Fraud Offences Act), 2001 or, alternatively, that such actions correspond to the offence of forgery provided for by s. 25 of the same Act. Section 6 of the Criminal Justice (Theft and Fraud Offences Act), 2001 provides:-
19. On behalf of the respondent it was contended that correspondence with s. 6 would require the establishment of an element of dishonesty and an intention of making a gain for himself or another or causing loss to another. It was further submitted that the use of the word ‘by’ in s.6(1) renders the offence a results based offence, therefore the applicant must show on the facts outlined in the offence that there has been a loss or a gain. While the Court does not accept that a loss or gain has to be established in order to constitute an offence under s. 6 of the Criminal Justice (Theft and Frauds Offences Act), 2001 the intent to do so is a necessary ingredient. The Court was concerned that on the facts set out in offence number 1 in the warrant, that correspondence was not established either with s. 6 or s. 25 of the Criminal Justice (Theft and Frauds Offences Act), 2001. The description of the offence in the warrant is as follows:-
He ordered Pawel Kowalczyk, being a person entitled to issue documents in form of records of scrap metal purchase from natural persons, to attest an untruth via filling in the following records with untrue details as to quantities and kinds of bought up scrap metals and purchase prices which were of legal meaning for the determination of the scope of business, and he ordered him, (Pawel Kowalczyk) to forge signatures of persons described as scrap metal sellers, and which documents are enumerated in pages 1232-1238. 21. It initially appeared to the Court both from the description of the offence and indeed the name of the offence, which is an offence against credibility of documents, that there is in Poland a legal requirement for the completion of documents for the purpose of determining the scope of a business. The filling of those documents untruthfully is in itself an offence without proof of an intention of making a gain for himself or of causing loss to another. The false entry results in a false impression of the scope of the business. It appears to the Court from the description of the circumstances of the offence that under Polish law the giving of a false impression of the scope of a business is an offence simpliciter. The offence stipulates the documents which were falsified. 22. It appears to the Court that the facts alleged most closely correspond with s. 10 of the Criminal Justice (Theft and Fraud Offences Act), 2001 in this jurisdiction which deals with false accounting and provides:-
(a) destroys, defaces, conceals or falsifies any account or any document made or required for any accounting purposes, (b) fails to make or complete any account or any such document, or (c) in furnishing information for any purpose produces or makes use of an account, or any such document, which to his or her knowledge is or may be misleading, false or deceptive in a material particular. 24. Offences 2 and 3
(a) knowingly or wilfully delivers any incorrect return, statement or accounts or knowingly or wifully furnishes any incorrect information in connection with any tax, (b) knowingly aids, abets, assists, incites or induces another person to make or deliver knowingly or wilfully any incorrect return, statement or accounts in connection with any tax, (c) claims or obtains relief or exemption from, or repayment of, any tax being a relief, exemption or repayment to which, to the persons knowledge, the person is not entitled, (d) knowingly or wilfully issues or produces any incorrect invoice, receipt, instrument or other document in connection with any tax. 26. Offence number 3 again alleges fraudulent activity in relation to taxes. It alleges that in order to hide the fact that he was running a particular business in the purchase of scrap metal and wooden palettes, that the respondent ordered the issue of 57 sales invoices in the name of a company which did not discharge a tax liability of PLN 136,690.48. This appears to the Court to correspond with an offence under s. 1078 of the Taxes Consolidation Act and in particular s. 2(a) and or (d). 27. Section 21 (A) Objection 28. Section 21A(2) creates a presumption that a decision has been made to charge and try the respondent for the offences in the warrant. That presumption can only be rebutted by cogent evidence that no decision to charge and to try has been made. In seeking to discharge the burden on him of rebutting the presumption, counsel for the respondent has fixed on one phrase in the correspondence, namely the phrase used in a letter from the issuing authority on the 15th April: “Piotr Antkiewitz is not requested to participate in a trial”. Secondly, he relies on the averment in the respondent’s affidavit at paragraph 11 that he has met with the prosecutor in the case that the prosecutor showed him a document which outlined that he is a suspect. 29. The Court is not persuaded that the presumption in s. 21A(2) is rebutted. While the Court had an initial concern arising from the use of that phrase and sought from the issuing authority further information, the Court, on the totality of the information furnished, is not persuaded that no decision to charge and try Mr. Antkiewicz has been made. The isolation of one phrase from a number of letters leads to a misunderstanding of the evidence. When the full response to the question posed and the answer given is considered, it is clear that the issuing authority is providing information on the Polish criminal process. The question posed was “Please confirm that Piotr Antkiewicz is being sought for trial”. The answer given was “Piotr Antkiewicz is not requested to participate in a trial”. It then goes on to say: “Within the applicable procedure, it is necessary to perform actions involving his participation, namely to present charges (emphasis added) to his (sic) and to question him”. 30. The totality of the evidence indicates that the respondent is already the subject of criminal proceedings in Poland. The case file contained in VI Ds. 3/10 was placed before the Regional Court in Legnica on the 15th October 2009. That court ordered pre-trial detention of fourteen days. Thereafter, the prosecutor on the 5th November 2009 issued a wanted notice which is described in the warrant at B as “final verdict”. This suggests that he is wanted for charge, not investigation. There is also the excerpt from the letter from the issuing authority dated the 17th June 2014, which makes the position clear:
The European arrest warrant in respect of Piotr Antkiewicz was issued for detention of the named and his remand (pre-trial detention) for a period of 14 days since detention and surrender of the named for conducting penal proceedings against him (emphasis added). In event when Piotr Antkiewicz has been detained and surrendered to Poland, a public prosecutor shall make a decision within 14 days on possible extension of the pre-trial detention period. 32. The averment in the respondent’s affidavit does not bring the matter any further. The evidence is that the respondent, Mr. Antkiewicz, has been in Ireland since 2008. His meeting with the prosecutor is undated but perforce must have been before February 2008. At that juncture, the offences for which his surrender is sought were in all likelihood still under investigation. The Court notes that the decision upon which the warrant is based which was a judicial decision to impose pre-trial detention on the respondent, is dated 15th October 2009, more than one year and a half after Mr. Antkiewicz left Poland. 33. The Court is satisfied on the particular facts of this case, that the presumption contained in s. 21A(2) that a decision has been made to charge and try the respondent has not been rebutted. 34. Section 11 Objection
37. The warrant is clear at B that the decision upon which the warrant is based is the decision of the Regional Court in Legnica of the 15th October 2009 on file VI Ds. 3/10. The warrant at C sets out the maximum sentences for the three offences involved and at E sets out the details of the three offences involved. The Court therefore holds that there is no want of compliance with s. 11(1)A(e) of the 2003 Act. 38. Counsel for the respondent also submitted at paragraph 1 of the notice of objection that the warrant fails to comply with Article 8(1)(e) of the Framework Decision and/or section 11(1A)(f) of the 2003 Act. Section 11(1A)(f) of the 2003 Act provides that an EAW shall specify:
40. The Court disagrees. In the Court’s view, while the language used may appear a little unwieldy, the clear import of the particulars is that the respondent, between January and April 2007, sought to hide the fact that he was dealing in the purchase of scrap metal and wooden palettes by issuing invoices in the name of a company Konglomerat GPP Witold Szymczak. During the period he ordered the issue of 57 such invoices. The company didn’t pay the tax liability on those invoices and a tax loss of PLN 136,690.48 resulted. The 57 sales invoices are particularised in the file at pages 1248 and 1249. In the circumstances the respondent cannot be in any doubt as to the allegation against him. 41. Article 8 Issue 42. Counsel on behalf of the respondent made a rolled up plea that having regard to the respondent’s state of health and the delay in issuing and prosecuting the EAW, surrender would constitute a disproportionate interference with the respondent’s human rights. 43. The Court is in no doubt that the respondent suffers from a serious heart condition, the effects of which were manifest during the course of the s.16 hearing. As recently as 6th October 2014, a hearing had to be adjourned while the respondent was taken by ambulance to the Mater Hospital where he has been a patient of the Cardiology Department since he first suffered a heart attack in the precincts of this Court in January 2014. However ill health of itself is not a reason to refuse surrender. The Court must presume that the issuing state will comply with the requirements of the Framework Decision unless the contrary is shown. The respondent has asserted that he will not receive appropriate treatment for his condition in Poland in the event that he is given bail on his surrender. It seems to the Court that mere assertion, without further proof is not sufficient to displace the presumption contained in s. 4A of the 2003 Act. 44. The respondent’s ties to this jurisdiction are relatively tenuous. By reason of his medical condition, he is unable to work. He does not appear to be in a relationship. He doesn’t appear to have anyone in this jurisdiction who is dependent on him either financially or emotionally. He avers that his son and grandchild live here, but gives no further detail of his involvement with them. His elderly mother and sister live in Poland and while he states that he would not be able to live with them, he would clearly not be without support in his home state. 45. Delay 46. The alleged offences occurred between January 2005 and April 2007. The offences were under investigation when the respondent left Poland in February 2008. He had a meeting with the prosecutor who informed him at that time that he was a suspect. His co-accused in offence 1, Marek Sękowski and Pawel Kowalczyk, were convicted and were sentenced on the 30th April 2009. The warrant for the respondent’s pre-trial detention was issued on the 15th October 2009 and a wanted notice issued on the 5th November 2009. It was almost three and a half years before the EAW issued on the 14th March 2013. This delay is unexplained, however the respondent who absented himself from Poland in 2008, has offered nothing to the Court to suggest that the Polish authorities should have found him sooner. It does not appear to the Court to be unreasonable that it might take up to three and a half years to locate someone in the European Union. 47. Counsel referred the Court to the judgment of Edwards J. in Minister for Justice and Equality v Wieslaw Ciecko (unreported, High Court, Edwards J., 18th December 2013). The circumstances of that case are entirely distinguishable from those of this case. In that case there was an unexplained delay of twelve years and in addition there was a failure to explain why the sentence in respect of which surrender was sought had not been imposed when the respondent had appeared before the issuing state’s court four years after that sentence had first been imposed. It appears to the Court that the effect of surrender of this respondent is such as would normally flow from arrest, detention or surrender. As stated by Edwards J in Minister for Justice and Equality v T.E. ([2013] IEHC 323) at principle 15: “Reliance on matters which could be said to typically flow from arrest detention or surrender, without more, will little avail the affected person.” 48. While the surrender of this respondent creates additional difficulties for him by reason of his poor health, surrender could not in his circumstances be said to be a “measure giving rise to exceptionally injurious and harmful consequences for an affected individual”, as stated by Edwards J. in T.E. at principle 16. The onus is on the respondent to demonstrate that surrender would result in a disproportionate interference with his Article 8 rights. Unfortunately for Mr. Antkiewicz, the onus is not discharged by the evidence before the Court. 49. The Court being satisfied that the requirements of s. 16 have been met and further being satisfied that there are no grounds upon which his surrender is prohibited orders that the respondent be surrendered to such person as is duly authorised to receive him. 50. The Court will now hear submissions on its powers under section 18. |