Minister for Justice and Equality v Tokarsk

 
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[2012] IESC 61

THE SUPREME COURT

Denham C.J.

Murray J.

O'Donnell J.

Clarke J.

MacMenamin J.

[Appeal No. 135/12]
Min for Justice v Tokarski
Between/
MINISTER FOR JUSTICE & EQUALITY
Applicant/Appellant

and

ARKADIUSZ TOKARSKI
Respondent

135/2012 - Denham Murray O'Donnell Clarke MacMenamin - Supreme - 6/12/2012 - 2012 29 8376 2012 IESC 61

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

EUROPEAN ARREST WARRANT ACT 2003 S45(A)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S20

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5(1)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(I)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(II)

GOODMAN INTERNATIONAL v HAMILTON 1992 2 IR 542

DPP, PEOPLE v O'SHEA 1982 IR 384

MIN FOR JUSTICE v MCCAGUE 2010 IR 456

MIN FOR JUSTICE v CIECHANOWICZ UNREP EDWARDS 8.3.2011 2011 IEHC 106

MIN FOR JUSTICE v ZACHWEIJA UNREP EDWARDS 23.11.2011 2011/38/10712 2011 IEHC 513

FARRELL & HANARAHAN THE EUROPEAN ARREST WARRANT IN IRELAND 2011 209

CRIMINAL PROCEEDINGS AGAINST PUPINO, IN RE 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142 2005 ECR I-5285 2005 2 CMLR 63

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

EXTRADITION LAW

European Arrest Warrant

Appeal - Refusal of surrender - Point of law of exceptional public importance - Guilt agreed in advance of hearing - Convicted and sentenced in absence without proper notification - Whether trial and conviction where guilt and sentence agreed to in advance - Absence of proper notification - Absence of undertaking that retrial available - Whether judicial adjudication that respondent ought be convicted - Possibility of refusal to convict - Issues tried by court - Construction of section - Framework Decision - Goodman International v Hamilton [1992] 2 IR 542; The People v O'Shea [1982] IR 384; Minister for Justice, Equality and Law Reform v Ciechanowicz [2011] IEHC 106, (Unrep, Edwards J, 8/3/2011); Minister for Justice, Equality and Law Reform v Zachweija [2011] IEHC 513, (Unrep, Edwards J, 23/11/2011); Criminal Proceedings against Pupino (Case C-105/103) and Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16, (Unrep, SC, 1/3/2012) considered - Minister for Justice, Equality and Law Reform v McCague [2010] IR 456 distinguished - Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA), art 26 - European Arrest Warrant Act 2003 (No 45), s 45 - Finding that section applied where âÇÿplea bargaining' existed and appeal dismissed (135/12 - SC - 6/12/2012) [2012] IESC 61

Minister for Justice and Equality v Tokarski

1

Judgment of Murray, J. delivered on the 6th day of December, 2012

2

JUDGMENT DELIVERED BY MURRAY J [NEM DISS]

3

This is an appeal by the Minister against the refusal of the High Court to grant an order for the surrender of the respondent to the Republic of Poland pursuant to the provisions of the European Arrest Warrant Act, 2003, as amended,(hereinafter the Act of 2003).

4

There is no right of appeal against an order of the High Court in a case such as this unless the court that makes the order certifies, pursuant to s. 16 of the Act of 2003, as amended, that its own decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal against that decision should be taken to this Court. This is a severe limitation on the scope of judicial remedies available to those seeking to assert rights in matters arising within the scope of European Union law. Unlike at least some of the other areas of the law where there are similar restrictions on an appeal, such as in asylum and planning and development law, there is no prior independent administrative process. The process in those other areas is quasi judicial and intended to be a complete and definitive determination of the interests of the parties concerned, subject only to judicial review of that process. Although even then it is the court which has made the decision that decides whether there should be an appeal from its own decision. In matters arising under the European Arrest Warrant Act there is just one judicial determination at first instance with no right of appeal, as such, except insofar as it is granted by the same court on the basis of the criteria set out in section 16. In this instance the learned High Court judge has, it would seem, and in my view correctly, taken a broad approach to the interpretation of that section and granted leave to appeal even though, since s.45 has been amended by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition Act, 2012, the issue is unlikely to arise again.

5

The point of law certified for the purposes of appeal to this Court by the High Court in this case was as follows:

"To what extent, if any, does section 45 of the European Arrest Warrant Act 2003, as amended, (which refers to a person who was "not present when he or she was tried for and convicted of the offence specified in the European arrest warrant") apply in circumstances where the domestic law of the issuing State allows for plea bargaining and the issue of the accused's guilt has been agreed between an accused person and the Police/State Prosecutor in advance of the matter coming before any court?"

6

Subsequently a Notice of Appeal was lodged by the Minister setting out thirteen grounds of appeal, virtually all of which related to the point of law which had been certified by the learned trial judge. One ground of appeal asserted that the learned trial judge erred in law in refusing to accede to an application on behalf of the Minister to seek further information from the issuing state pursuant to s.20(1) of the Act of 2003. In fact, subsequent to the High Court decision and before this appeal came up for hearing, the Minister sought and obtained further information and material from the Polish authorities and then brought a Motion seeking liberty to place that material before this Court as part of the appeal. That Motion was dealt with by this Court at the beginning of the hearing of the appeal and the Court decided to admit the material de bene esse.

7

That further material does not significantly add to the facts of the case as found in the High Court, although it bore out the narrative according to which the respondent, on two separate occasions when interrogated by the police in Poland, had admitted or "pleaded" to the offences which were alleged against him, and agreed to a penalty by way of imprisonment which could be imposed on him. That narrative is referred to in greater detail below, but the Court, in admitting the material de bene esse, did not have to address any particular issues concerning the admissibility of the material in question or what the material may be deemed to prove. Accordingly, the only issue before the Court in the appeal is that referred to in the certificate of the High Court.

8

It may be convenient, at this point, to specify that the net issue in this case arises by virtue of the fact that the respondent was convicted and sentenced by a Polish court on the 1st December, 2009. This was the first and only occasion on which the criminal proceedings were dealt with by a court in Poland. The respondent was not present in court, nor was he legally represented. For the reason that the respondent had admitted or "pleaded," as it is put in the English translation of the Polish documentation, to the offences and agreed to the prison sentence which could be imposed, in the course of interrogation conducted by the police and prior to the preparation of an indictment, Polish law did not render the respondent's subsequent conviction and sentence to be one which is "in default", as it was put. It should be noted, however, that the fact that the Polish court's decision was given in absentia, without proper notification to the respondent within the meaning of s.45 of the Act of 2003, is not at issue between the parties.

9

In general terms the Minister does argue that, in the light of Polish criminal procedures, and in particular the "plea bargaining" that he engaged in, the respondent cannot maintain that he was "tried for and convicted of an offence" before the Polish court within the meaning of s.45(a) of the Act of 2003, and therefore the finding of the learned trial judge that he had been tried and convicted in absentia was wrong in law.

10

Again stating the position of the respondent in general terms, it is his contention that, as the High Court concluded, there was objectively speaking a trial and conviction within the meaning of s.45 which took place in his absence. Accordingly, he submits that he was objectively, and in law, "tried and convicted" within the meaning of s.45(a) of the Act of 2003 and therefore the High Court, in finding that he had been tried and convicted in absentia, properly refused to make an order for surrender by reason of the provisions of section 45.

11

Before setting out in detail the background facts and circumstances surrounding this particular case, I think it...

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