Min for Justice v Fiszer
 IEHC 664
THE HIGH COURT
2015/52EXT - Donnelly - High - 27/10/2015 - 2015 IEHC 664
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.
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...
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