Minister for Justice and Equality v Lipinski

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 04 July 2016
• Neutral Citation: [2016] IESCDET 96
• Court: Supreme Court
• Date: 04 July 2016

[2016] IESCDET 96

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

THE MINISTER FOR JUSTICE & EQUALITY

RESPONDENT

-V-

ARKADIUSZ PIOTR LIPINSKI

APPLICANT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court will grant the application by the applicant, Piotr Lipinski, whereby he seeks to appeal against a judgment of the Court of Appeal, delivered herein on the 15th December, 2015, which order was perfected on the 12th May, 2016.

REASONS GIVEN:

Jurisdiction

1 This Determination relates to an application by the applicant, Piotr Lipinski, who was the respondent in the High Court, and appellant in the Court of Appeal, for leave to appeal under Article 34.5.3 of the Constitution, from a judgment of the Court of Appeal delivered herein on the 20th April, 2016. The order was perfected on the 20th April, 2016.

2 As is clear from the terms of the Constitution, and the many determinations made by this Court since the enactment of the 33rd Amendment to the Constitution, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

3 The Court considers it desirable to point out that a Determination of the Court on an application for leave, while it is final and conclusive as far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will, in due course, be disposed of in the substantive decision of the Court.

4 The Application and the Response are set out herewith on the Courts Website.

The Application

5 The surrender of the applicant is sought by the Republic of Poland, pursuant to a European Arrest Warrant dated the 15th December, 2009. A central issue in this application is whether the applicant's surrender is prohibited, either by s.45 or s.37 of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’), on the grounds that his suspended sentence was re-activated in his absence by the domestic court.

6 In the High Court, Donnelly J. directed that the applicant be surrendered. However, she certified one point of law of exceptional public importance, which it was desirable that an appeal should be taken to the Court of Appeal. The question was:

‘Are the provisions of s.45, as amended by the European Arrest Warrant (Application to Third Countries and Amendment), and Extradition (Amendment) Act, 2012, engaged in circumstances where the person was present for the hearing of his guilt or innocence, and the imposition of his sentence of the offence, but not present for, or notified of, the application to activate the suspended sentence.’

7 The appellant submits s.45 of the European Arrest Warrant Act, 2003 (‘the 2003 Act’) was substituted by s.23 of the European Arrest Warrant Act (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012 (‘the 2012 Act’). This amendment was made by the 2012 Act, and, it is said, was enacted predominantly for the purpose of transposing Framework Decision 2009/229 into Irish domestic law. It is said, the amendment to s.45 by the 2012 Act has been deemed retrospective as per the High Court judgment of Minister for Justice v. Pawel Surma, Unreported, High Court, 3rd December, 2013.

Background

8 The applicant was, on the 7th December, 1998, sentenced in Poland to 15 years imprisonment, following conviction on fifteen offences. He was present for the trial, conviction and sentence. On appeal the sentence was reduced to 10 years imprisonment. The applicant was aware of the appeal, and represented by his lawyers there.

9 On 20th September, 2004, having completed part of the sentence, the Polish courts made an order for the applicant's conditional release, and suspended the remainder of the sentence. The remaining 11 months and 8 days imprisonment were then suspended for 3 years, on the condition that the applicant was to remain under the supervision of a probation officer. The applicant left Poland and came to Ireland in 2006.

10 On the 29th December, 2006, the Polish courts made an order revoking the suspension of the sentence, which order became final and un-appealable on the 16th January, 2007. It is said the applicant did not receive any actual notification of the hearing to revoke the suspended sentence, and was not present at the hearing on the 29th December, 2006 aforesaid. It is further said, the applicant was not aware of that hearing, or the consequent order, revoking the suspended sentence until his arrest in Ireland pursuant to a European Arrest Warrant in June, 2014.

The High Court

11 The High Court directed the applicant to return to Poland.

The Court of Appeal

12 The Court of Appeal found that the provisions of the amended s.45 were not engaged in circumstances where a person was not present for, or notified of, the application to amend the balance of the sentence, which had been suspended.

13 The Court of Appeal also found that the amendments were procedural, rather than substantive, and if the in absentia arrangements were...