Min for Justice v Palonka

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan,Mr. Justice Peart
• Judgment Date: 18 May 2015
• Neutral Citation: [2015] IECA 69
• Court: Court of Appeal (Ireland)
• Date: 18 May 2015

Min for Justice v Palonka

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACTS 2003 AS AMENDED

BETWEEN:

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

SLAWOMIR PALONKA

APPELLANT

[2015] IECA 69

Finlay Geoghegan J.

Peart J.

Mahon J.

60/2014

THE COURT OF APPEAL

Crime & sentencing – Extradition – European Arrest Warrant –Appeal against High Court decision or order surrender –Ss 16& 45 European Arrest Warrant Act 2003

Facts: The respondent was the subject of a European Arrest Warrant from Poland. The High Court had ordered his surrender, and the appellant now sought to appeal by invoking s 16 of the 2003 Act. The appellant contended there was a point of public importance in relation to s 45 of the Act and the Annex of the Warrant itself

Held by Finlay Geoghegan J, Peart J also giving a judgment, that the appeal would be allowed. The Court was satisfied that the Annex required the provision of information as to how the conditions applicable were met where the issuing body had ticked a certain box. In the instant case, this had not been done and the Court would discharge the respondent

1 Judgment of Ms. Justice Finlay Geoghegan delivered on the 18th day of May 2015

2 Judgment of Mr. Justice Peart delivered on the 18th day of May 2015

3 1. I agree with the judgment to be delivered by Mr. Justice Peart and wish to add some comments of my own in relation to the question of interpretation raised by the questions certified by the trial judge (Edwards J.) in the order made on the 20 ^th November, 2014, for this Court's determination:

"In light of the correlation between sections 16(1)(c) and section 45 of the European Arrest Warrant Act, 2003, as amended, and having regard to the form of the European Arrest Warrant as provided for in the Annex to the Framework Decision, as amended by Council Framework Decision 2009/299/JHA, and as set out in the Table to section 45 of the 2003 Act, as amended, is an Order for surrender under section 16(1) permitted in circumstances where the issuing judicial authority has purported to indicate the applicability of point 3.2 of section (d) of the European arrest warrant but has not provided any information at point no. 4 of the said section (d) where the Respondent has not raised any issue concerning the correctness of the matter certified at point 3.2?"

4 2. On the 4 ^th November, 2014, the trial judge had made an order pursuant to s. 16 of the European Arrest Warrant Act 2003, (as amended) (the Act of 2003) for the surrender of the appellant pursuant to a European Arrest Warrant issued by the Republic of Poland dated the 6 ^th November, 2012. The reasons for the making of the order are set out in the written judgment delivered by the trial judge on the 4 ^th November, 2014. As appears therefrom, the appellant was not present before the court at the hearing resulting in the sentence in respect of which the European Arrest Warrant issued. The issuing judicial authority from which the Annex to the European Arrest issued had ticked the box equivalent to point 3.2 in the form of warrant in the Annex to the Framework Decision, but had not provided any information at point 4.

5 3. The issue in controversy in the High Court in such circumstances was as to whether the High Court was precluded by s. 16(1) of the Act of 2003 as amended, from making an order for the surrender of the appellant.

6 4. The trial judge determined that he was not so precluded. Following a consideration of the statutory provisions referred to below and the Framework Decision, the trial judge accepted submissions made on behalf of the Minister and concluded that s. 16(1)(c) and s. 45 of the Act of 2003 as amended, do not oblige an issuing judicial authority to provide information at point 4 of point (d) of the form of warrant in the Annex to the Framework Decision as set out in the table to s. 45 of the Act of 2003. Further that on the facts of this application as the appellant had not raised any issue concerning the correctness of the matters certified at the paragraph corresponding to para. 3.2, in the said form of warrant that the paragraph corresponding 2.4 was redundant and no supplementary information was required in the circumstances of the case.

7 5. The numbering used by the issuing judicial authority in Poland differed from that in the form of warrant in the Annex to the Framework Decision and the trial judge determined that such irregularity represented a defect in a non substantial detail and that no injustice would be caused to the respondent by forgiving it. He made such determinations pursuant to s. 45C of the Act of 2003 and there is no appeal from that determination. This judgment uses the numbering in the Annex in the form of warrant to the Framework Decision as set out in the table to s. 45.

8 6. The submissions made on behalf of the parties on appeal are set out in the judgment of Peart J. and I do not propose repeating same. I have taken them folly into account in the conclusions which I have reached.

Conclusions

9 7. The question which was certified by the trial judge and requires determination by this Court is dependent upon the proper construction of ss. 16(1)(c) and 45, including its Table, of the European Arrest Warrant Act 2003, as amended by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012. Section 16(1)(e) is also relevant. These provide respectively:

10 2 "16.-(1) Where a person does not consent to his or her surrender to the issuing state the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that-

11 (a) ...;

12 (b) ...;

13 (c) the European arrest warrant states, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012);

14 (d) ... and

15 (e) the surrender of the person is not prohibited by Part 3."

16 2 "45. A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued, unless the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA, as set out in the table to this section.

17 TABLE

18 (d) Indicate if the person appeared in person at the trial resulting in the decision:

19 1. Yes, the person appeared in person at the trial resulting in the decision.

20 2. No, the person did not appear in person at the trial resulting in the decision.

21 3. If you have ticked the box under point 2, please confirm the existence of one of the following:

22 2 3.1a. the person was summoned in person on ... (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial;

23 OR

24 3 3.1b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial;

25 OR

26 4 3.2. 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;

27 OR

28 5 3.3. the person was served with the decision on ... (day/month/year) and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

29 6 the person expressly stated that he or she does not contest this decision,

30 OR

31 7 the person did not request a retrial or appeal within the applicable time frame;

32 OR

33 8 3.4. the person was not personally served with the decision, but

34 · - the person will be personally served with this decision without delay after the surrender, and

35 · - when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

36 · - the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be ... days.

37 4. If you have ticked the box under points 3.1b, 3. 2 or 3.3 above, please provide information about how the relevant condition has been met:

38 ............

39 ............

40 8. The above sections are amongst the sections of the Act of 2003, as amended by the Act of 2012 which had been enacted to give effect to the Council Framework Decisions adopted under the Treaty on European Union insofar as is relevant last amended by Council Framework Decision 2009/299/JHA of 26 ^th February, 2009. The principles to be applied in interpreting s. 16(1) and s. 45 are not in dispute. The starting point is the well established principle that Acts of the Oireachtas should be construed according to the...