Min for Justice v Laks

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael Peart
• Judgment Date: 14 January 2009
• Neutral Citation: [2009] IEHC 3
• Court: High Court
• Date: 14 January 2009

[2009] IEHC 3

THE HIGH COURT

Record Number: No. 156 Ext/2007

Min for Justice v Laks

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Tomasz Laks

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

EUROPEAN ARREST WARRANT ACT 2003 S37

BAKSYS v MINISTRY OF JUSTICE OF THE REPUBLIC OF LITHUANIA 2007 EWHC 2838 (ADMIN)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

PENAL CODE OF THE REPUBLIC OF POLAND ART 286

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

EUROPEAN ARREST WARRANT ACT 2003 S5

EUROPEAN ARREST WARRANT ACT 2003 S20

EUROPEAN ARREST WARRANT ACT 2003 S16

EXTRADITION

European arrest warrant

Sentence - Suspended sentence - Non-compliance with conditions - Lifting of suspension - Points of objection - Claim that respondent did not flee - Breach of constitutional rights - Breach of convention rights - Absence of notification of hearing following which suspension lifted - Right to be heard - Right to fair trial - Presence at trial - Awareness of conditions - Failure to comply with conditions - Claim that denied adequate time for preparation of defence - Attempts to mislead court - Correspondence - âÇÿSwindling money' - Writing of cheques causing illegal debit - Whether correspondence with offence of making gain or causing loss by deception - Whether warrant failed to disclose dishonesty - Possibility of innocent, negligent or mistaken misrepresentation - Existence of overdraft facility -Whether ingredients of offence sufficiently made out - Baksys v Ministry of Justice of the Republic of Lithuania [2007] EWHC 2838 (Admin) (Unrep, 78/11/07) considered - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), s 6 - European Arrest Warrant Act 2003 (No 45), s 5 - Surrender refused (2007/156EXT - Peart J - 14/1/2009) [2009] IEHC 3

Minister for Justice, Equality and Law Reform v Laks

Facts: Section 10 of the European Arrest Warrant Act 2003 provides, inter alia, that “[w]here a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person…on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she commenced serving that sentence…that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.” The respondent had been convicted of an offence described as “being the holder of a savings account in the [bank], he swindled money…in such a way that having no cover on the account he cashed 13 cheques…acting to the detriment of the…bank” in Poland and given a suspended sentence therefor. The suspension of the sentence was lifted in 2004 for breach of conditions. A European arrest warrant was issued in 2007 for his return to serve the sentence. He resisted the application for his surrender, inter alia, on the basis:- 1. that he was not a person to whom section 10 of the Act of 2003 applied on the basis that he had not fled from the issuing state since he had left that jurisdiction in order to obtain employment before he had been made aware that the conditions of the suspension had been breached; 2. that he had never been informed of the hearing of the application which resulted in the lifting of the suspension of sentence and his constitutional right to a fair hearing had been breached thereby; 3. that correspondence had not been made out. The applicant sought to argue, inter alia, that the facts set out in the warrant corresponded to the offence of making a gain or causing a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

Held by Peart J in refusing the application for an order of surrender of the respondent:- 1. that there was a presumption that the respondent had been aware of the conditions of the suspended sentence and that he was in breach of them.

2. That when the sentence was suspended on certain conditions, the respondent’s constitutional and Convention rights to a fair trial had been afforded to him at that time and the hearing of the application for the lifting of the suspension of the sentence was merely procedural.

3. That, to correspond with an offence under section 6 of the Act of 2001, the offence described on the warrant had to contain a number of ingredients namely, acting dishonestly, an intention of making a gain for himself or another and deception which induced another person to do or not to do something. As the offence under Polish law was significantly different to the offence created by section 6 of the Act of 2001, correspondence had not been made out.

Reporter: P.C.

1 Mr. Justice Michael Peartdelivered on the 14th day of January 2009:

2 The surrender of the respondent is sought by a judicial authority in Poland so that he can be returned to that state in order to serve a sentence of 10 months imprisonment which has been imposed upon him there.

3 The European Arrest Warrant on foot of which surrender is sought is dated 10 ^th May 2007. Having been transmitted to this jurisdiction it was endorsed here by the High Court on 26 ^th September 2007. The respondent was duly arrested on foot of same on the 28 ^th September 2007 and, as required, was brought before the Court immediately thereafter. He has been remanded from time to time thereafter pending the hearing of the present application.

4 There is no issue raised by the respondent as to his identity, and the court is satisfied in any event from the affidavit of Sergeant Martin O'Neill, the arresting officer, that the person who is before the court on this application following arrest is the person in respect of whom this European Arrest Warrant has been issued.

5 On this application, the respondent raises a number of objections to an order for surrender being made in this case.

Section 10 - 'fleeing':

6 Firstly, he submits that he is not a person to whom section 10 of the European Arrest Warrant Act, 2003 applies since he did not "flee" Poland, but left in order to obtain employment, firstly in the Netherlands, and later in this jurisdiction, where he arrived on the 2 ^nd November 2004. He has lived and worked here since that date.

7 It appears from the warrant that on the occasion on which the respondent was convicted and sentenced on the 29 ^th June 2001 to a period of 10 months imprisonment, this sentence of imprisonment was suspended on certain conditions. Paragraph F of the warrant states the following:

"By its decision of the 25 ^th June 2004, the court ordered the execution of the convict's sentence which had been conditionally suspended. [The respondent] did not report voluntarily to serve the penalty of deprivation of liberty. The order to bring him to the penitentiary by the police also turned out to be inefficient. As the convict was hiding away, his search by a decision of the 8 ^th November 2004 was ordered and by the decision of 8 ^th December 2004, the executory proceedings were suspended…"

8 A letter dated 8 ^th January 2000 which has been sent to the Central Authority here by the judicial authority in Poland provides further information as to the sentencewhich was imposed, and the background to the lifting of the suspended sentence. This letter states that following the imposition of the conditional suspension of 10 months imprisonment for a period of three years on the 29 ^th June 2001, the respondent was " obliged to redress the damage caused by his misconduct as an amount of 2189.32 PLN within a time frameof one year from the day the judgment became on force of the law. He was also obliged to undertake a job and a probation officer was to supervise him" These conditions were not fulfilled by the respondent. This letter goes on to say that this judgment became enforceable on the 1 ^st February 2002 so that the probation period of three years lasted until the 1 ^st February 2005. The letter goes on:

"During the probation period, the convict did not fulfil that duty to redress the damage in spite of the fact he was earning money except for a short period between December 2002 February 2003. The effect of having the money was evidenced by the convict's supporting his mother, however, he did not transfer the money to the injured subject. This resulted in issuing on the 25 ^th of June 2004 an order to resume the conditionally stayed penalty. The order became of force of law on the 29 ^th July 2004."

9 In an affidavit the respondent says that since coming to Ireland he has lived openly here. He states also that following the conviction on the 29 ^th June 2001 in Poland, he resided there until his departure on the 22 ^nd July 2004 and did not at any time conceal, or attempt to conceal, his whereabouts, and he says that he did not flee that state. He says that in the period between the 29 ^th June 2001 and his departure from Poland he received no communication from either the bank referred to in the offence, or the court which convicted him, regarding these proceedings against him. He also says that he was not notified of any hearing relating to the decision on the 25 ^th June 2004 by which his suspension was lifted. These are the facts upon which he relies to say that by leaving Poland when he did in July 2004, he did not "flee".

10 Section 10 (d) of the Act is the relevant provision to this case. It provides:

"Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-"

11 ....

12 (d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she-

13 (i) commenced serving that sentence, or

14 (ii) completed serving that sentence,

15 that person...