Min for Justice v Slonski

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 25 March 2010
• Neutral Citation: [2010] IESC 19
• Court: Supreme Court
• Date: 25 March 2010

[2010] IESC 19

THE SUPREME COURT

Macken, J.

Finnegan, J.

O'Donnell, J.

[S.C. No. 123 of 2009]

Min for Justice v Slonski

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003

BETWEEN

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

AND

DOMINIK SLONSKI

RESPONDENT/APPELLANT

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 PART III

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

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S5

EUROPEAN ARREST WARRANT ACT 2003 S20

MIN FOR JUSTICE v TOBIN 2008 4 IR 42 2008/42/9105 2008 IESC 3

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

EXTRADITION

European arrest warrant

Surrender - Suspended sentence - Conditions - Whether evidence before court to permit finding that respondent had 'fled' - Minister for Justice, Equality and Law Reform v Sliczynski [2008] IESC 73 (Unrep, SC, 19/12/2008) followed - European Arrest Warrant Act 2003 (No 45), ss 5, 10, 16 & 20 - Appeal allowed (123/2009 - SC - 25/3/2010) [2010] IESC 19

Minister for Justice Equality and Law Reform v Slonski

Facts: An order had been made by the High Court ordering the surrender of the appellant to Poland. The surrender of the appellant was sought to serve a sentence of imprisonment which had been conditionally suspended, pursuant to a "curators supervision". He had left Poland, which was a breach of the suspension condition, and was arrested and sentenced in Ireland for drug smuggling. The appellant raised three objections to his surrender, namely, that the appellant had not fled Poland within the meaning of s. 10 of the European arrest warrant Act 2003, the description of the offence in the arrest warrant was not a "corresponding offence" and that the appellant had already served all the required penalty during the course of his imprisonment in the State. The appellant contended that insufficient evidence was before the Court as to the suspension conditions allegedly breached.

Held by the Supreme Court per Macken J. (Finnegan & O'Donnell JJ.) that there was no information before the High Court that the terms of the suspension had been imposed in the presence of the appellant such that would have permitted the High Court to conclude that he knew them. Insufficient evidence had been provided to the trial judge that leaving Poland was breach of a supervision condition. Certain judgments of the Court were not brought to the attention of the trial judge possibly on account of the timescale. There was wholly inadequate material before the trial judge to reach the conclusion that the appellant was a person who had fled Poland. The appellant could not be surrendered pursuant to s. 16 of the Act of 2003 on the basis of the information presented. The appeal would be allowed and the order of the High Court set aside directing the surrender of the appellant.

Reporter: E.F.

1 JUDGMENT delivered on the 25th day of March, 2010 by Macken, J.

2 Judgment delivered by Macken J. [nem diss]

3 This is an appeal from the judgment of the High Court (Peart, J.) delivered on the 10 ^th March, 2009 and the Order made thereon by which the High Court directed the surrender of the appellant to Poland, pursuant to s.16 of the European Arrest Warrant Act, 2003 ("the Act of 2003").

4 The warrant in question, dated the 17 ^th March, 2008, issued from a judicial authority in Poland in respect of the appellant and was duly endorsed by the High Court. The appellant was thereafter arrested. In the usual way, when the person sought to be surrendered pursuant to a European arrest warrant does not consent to the same, as the appellant did not, a Notice of Objection was filed on his behalf, the revised version of which, dated the 11 ^th November, 2008, contained three objections to surrender, namely:

5 (i) That the appellant did not come within the provisions of s.10 of the Act of 2003 on the basis that he had not "fled" Poland after the imposition of a sentence of imprisonment;

6 (ii) The surrender was prohibited by part 3 of the Act of 2003 because the description of the offence contained in the European arrest warrant was not one to which Article 2.2 of the Framework Decision applied and was not either an offence which corresponds to an offence within the State, as required by s.38, and is not "a corresponding offence" as defined by s.5, of the Act of 2003;

7 (iii) The appellant should not be surrendered to Poland because he had already served all the required penalty during the course of his imprisonment in the State, he having been arrested, pursuant to the provisions of the Act of 2003. It would, therefore, be futile to surrender him to Poland.

8 Affidavits were filed, both on behalf of the appellant and also on behalf of the Minister, and it is common case that additional information was sought on behalf of the Minister from the Polish judicial authority pursuant to s.20 of the Act of 2003, and certain additional information was thereupon made available. I will refer to these matters further in the course of my judgment, where necessary.

Decision

9 Having regard to the findings which I propose to make, it is appropriate to commence with the first issue raised on behalf of the appellant in this appeal, namely, whether the learned High Court judge was correct in law, and the appellant says he was not, to direct the surrender of the appellant pursuant to s.16 of the Act of 2003, having regard to the appellant's claim that he was not a person who comes within s.10 of the Act of 2003, he not having fled Poland, or more correctly, as it developed in the course of argument, on the basis that there was no evidence before the learned High Court judge upon which the judge could have properly found that the appellant had fled Poland within the meaning of the section.

10 Section 10 of the Act of 2003 provides as follows:

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

(a) …

(b) …

(c) …

(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-

(i) commenced serving that sentence, or

(ii) completed serving that sentence,

11 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."(emphasis added)

12 In his affidavit, sworn on the 17 ^th December, 2008, the appellant, in its material part, averred as follows:

13 2 " (3) I have been in Ireland since 2005 and I have been in custody here since March, 2005 when I was arrested for a drugs offence and subsequently sentenced to seven years imprisonment. Whereas I have been in different prisons, I have been in the Midlands prison since August, 2008. I was arrested on the extradition warrant on 25 ^th December, 2008 and I have been in custody on that since then.

14 …

15 (5) I was not present in court in Poland on 4 ^th November, 2005 when I was ordered to serve a period of imprisonment. I was in custody in Ireland. In the circumstances, I believe I cannot be regarded as having fled Poland before I commenced or completed serving that sentence.

16 (6) I believe the details specified in the European Arrest Warrant are inadequate and incomplete."

17 It is helpful to set this issue in context by indicating what it is the learned trial judge said in relation to the issue of s.10 of the Act before dealing further with the issue. He stated as follows:

"The surrender of the respondent is sought by a judicial authority in Poland on foot of a European arrest warrant dated 17 ^th March 2008 so that he can serve a sentence of 12 months imprisonment which was imposed upon him there on the 21 ^st November 2003. That sentence satisfies the minimum gravity requirement, being a sentence of more than four months.

…

The sentence of imprisonment was conditionally suspended, the condition being that described in the warrant as "a curator's supervision". It appears that by the 4 ^th November 2005 it had become known by the Polish court that the respondent had left Poland, which was a breach of the supervision condition, and on that date the court lifted the suspension and ordered execution of the sentence. The warrant discloses also that on the 4 ^th April 2005 the respondent had landed at Dublin Airport and was detained there "while smuggling 500g of cocaine". He was sentenced here in respect of that offence and sentenced to a term of seven years' imprisonment which he is currently serving here."

18 Insofar as the learned High Court judge's finding is concerned, vis a vis fleeing, he stated as follows:

"I am satisfied firstly that the date on which this...