Min for Justice v Fiszer
 IEHC 664
THE HIGH COURT
International Law – Extradition – S. 45 of the European Arrest Warrant Act, 2003, as amended – Appearance at trial – Sentence – Prohibition of surrender – Whether the respondent was aware of the ongoing trial.
2015/52EXT - Donnelly - High - 27/10/2015 - 2015 IEHC 664
Facts: The applicant sought an order for surrender of the respondent under s. 16 of the European Arrest Warrant Act, 2003, as amended. The respondent claimed quashing of the sought order under s. 16 of the European Arrest Warrant Act, 2003, as amended. The respondent claimed that the lawyer representing the respondent lacked instructions to act on behalf of the respondent. The respondent contended that the respondent lacked knowledge of the ongoing trial. The respondent claimed that the surrender would be prohibited under s. 38 and s. 45 of the European Arrest Warrant Act, 2003, as amended.
Ms. Justice Donnelly held that the application seeking an order for surrender of the respondent under s. 16 of the European Arrest Warrant Act, 2003, as amended, would be granted. The Court found that the respondent had awareness of the ongoing trial. The Court held that the surrender would not be prohibited under s. 38 and s. 45 of the European Arrest Warrant Act, 2003, as amended. The Court would be satisfied that the respondent had given a mandate at the outset of the trial to the lawyer.
1. The respondent is sought by Poland to serve a sentence of three years imprisonment imposed upon him on 25 th August, 2008 in respect of ten offences. The only contentious issue in the case is whether his surrender is prohibited under s. 45 of the European Arrest Warrant Act, 2003, as amended ("the Act of 2003").
2. The European arrest warrant ("EAW") in this case was dated 28 th September, 2010. Point (d) of the EAW was drafted in accordance with the style of warrant annexed to the Framework Decision of 13 th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States ("the 2002 Framework Decision"). At point (d) of the EAW, the issuing judicial authority had crossed out the two available options. I am satisfied that this is usually intended to indicate, and did indicate in this case, the view of the issuing judicial authority that the respondent had appeared in person at his trial.
3. The Framework Decision of 26 th February, 2009 (2009/299/JHA) on the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial ("the 2009 Framework Decision") amended the form of the EAW to provide for the completion of a new point (d). The central authority, on receipt of the EAW, sent a request that point (d) be completed in the new format. In reply, the issuing judicial authority forwarded a completed point (d) in the new format required by the 2009 Framework Decision. The completed point (d) utilised a slightly different paragraph numbering system from that contained in s. 45 of the Act of 2003 as amended. This makes no substantive difference to these proceedings, but for ease of comprehension, I will use the numbering system set out in section 45.
4. Point (d) as forwarded by the issuing judicial authority indicates "[n]o, the person did not appear in person at the trial resulting in the decision." Under point (d) 3, in answer to the question "[i]f you have ticked the answer 'No', please confirm the existence of one of the following:", the issuing judicial authority indicates as follows:
a "c. being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;"
5. Somewhat confusingly, under part 3.3 of point (d), the issuing judicial authority crossed out virtually everything except one of the alternative explanations, namely that the person did not request a retrial or appeal within the applicable time frame. In other words, the condition precedent, namely that the person was served with the decision, which triggers the alternatives was not ticked.
6. The condition precedent within 3.3 having been crossed out, the remainder of that part has no standalone meaning. Without the condition precedent being ticked, I am satisfied that the issuing judicial authority did not intend to rely on point 3.3 to establish that the conditions under point (d) have been met as regards trial in absentia. I am satisfied that the reference to the lack of a request for a retrial or appeal is simply a statement of fact by the issuing judicial authority, i.e. it is making the point that the respondent did not request a retrial or an appeal.
7. At part 4 of point (d), the issuing judicial authority provided the following information:
"The convicted person was advised during the proceedings on the duty to inform about any change of whereabouts. During the proceedings he was represented by a court-appointed counsel and knew who was his defence counsel. Damian Fiszer appeared for the trial on 20 March 2007 and gave his correspondence address. He also appeared for the trial on 14 April 2008 and was summoned in person on 16 June 2008, when he did not appear. When summoned for the next trial on 18 August 2008, the convicted person did not collect the summons, yet due to it being sent properly with an advice note, it was deemed properly served. He did not appear for that trial, yet his defence counsel did. The date of issuing the decision was adjourned then, of which he knew due to having been properly summoned for the trial and having a defence counsel. On 25 August 2008 the verdict was pronounced, against which neither the convicted person nor his defence counsel appealed."
8. The central authority engaged in further correspondence apparently with a view to gaining an understanding as to which dates were being indicated as trial dates. By the completion of the correspondence, the issuing judicial authority had confirmed that the court proceedings were commenced at a trial on 20 th March, 2007 at which the indictment was read and the respondent was present. The next trial was held on 12 th April, 2007 at which the respondent was present and provided a brief explanation in respect of certain matters. This included an admission to one of the offences but a denial of other acts, together with a refusal to provide any explanation. The issuing judicial authority confirmed that subsequent trials were held on 13 th June, 2007, 22 nd August, 2007, 5 th September, 2007, 9 th November, 2007, 14 th January, 2008, 11 th February, 2008, and 14 th April, 2008, on each occasion at which the respondent was present. The issuing judicial authority then stated that the trials of 16 th June, 2008 and 18 th August, 2008 were held in the absence of the respondent who had, according to Polish law, been properly notified. The verdict was given on 25 th August, 2008, and neither the respondent nor his counsel was present on that date as presence is not compulsory and notification of the trial date had been sufficient. There is an express statement that the respondent's defence counsel was present at all trials between 20 th March, 2007 up to and including 18 th August, 2008.
9. On affidavit, the respondent stated that he left the Republic of Poland in May 2008 and initially spent a number of months in Belfast. He did not indicate when he headed south of the border, but it appears he has been living in this jurisdiction for some time. Of particular note is that at para. 4 of his affidavit, he stated: "I say that a lawyer was appointed by the Court to represent me in the proceedings the subject matter of the European Arrest Warrant. I say that once I left Poland I did not keep in touch with this lawyer who did not have any instructions to act after this date."
10. Counsel for the minister relied upon the interpretation of s. 45 set out by this court in Minister for Justice and Equality v. A.P.L.  IEHC 458. She submitted that under s. 45, a person has appeared in person at the proceedings resulting in the sentence or detention order in respect of which the EAW was issued, where he or she was present at the trial at which his or her guilt or innocence has been determined.
11. Counsel for the minister submitted that in line with the decision in Minister for Justice and Equality v. Surma  IEHC 618, as applied in A.P.L., the court was entitled to go behind the indication given by the issuing judicial authority that the respondent had not appeared at the trial. She referred in particular to para. 36 of Surma and the approval of that passage by the Court of Appeal in Minister for Justice and Equality v. Palonka  IECA 69.
12. Counsel submitted there was cogent evidence to show that the issuing judicial authority was in error in saying that the respondent did not appear at the trial. Section 45 required presence at the proceedings at which guilt or innocence was to be determined. It was submitted that the entirety of the information showed that the trial...
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