Minister for Justice and Equality v Lipinski

JurisdictionIreland
JudgeMR JUSTICE MICHAEL PEART
Judgment Date12 May 2016
Neutral Citation[2016] IECA 145
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2015 No. 342
Date12 May 2016
[2016] IECA 145

THE COURT OF APPEAL

CIVIL

Peart J.

Record Number: 2015 No. 342

Ryan P.

Kelly J.

Peart J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

BETWEEN:
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT/RESPONDENT
- AND -
ARKADIUSZ PIOTR LIPINSKI
RESPONDENT/APPELLANT

Extradition – European arrest warrant – Revocation order – Appellant seeking to resist an order for his surrender – Whether the right to a retrial includes the right to a rehearing of a subsequent application to revoke the suspension of the balance of a sentence where the person had been present when that sentence was imposed

Facts: The appellant, Mr Lipinski, was sentenced on the 7th December, 1998 to 15 years imprisonment following his conviction in Poland on 15 charges of assault causing harm. On appeal that sentence was reduced to 10 years. On the 20th September, 2004, after he had completed part of his sentence, the Polish court made an order for his conditional release, and the suspension for a period of 3 years of the balance of his sentence. One condition of his conditional release was that he should remain under the supervision of his probation officer. Another was that any change of address must be notified to his probation officer. On the date of his conditional release some eleven months of his sentence remained to be served after time spent in pre–trial detention was taken into account. He failed to comply with the conditions stated and instead left Poland and came to Ireland in July, 2006. The Polish court made an order quashing his parole on the 29th December, 2006, thereby rendering him liable to serve the remaining part of the sentence imposed on the 7th December, 1998, as reduced on appeal. Following the revocation of his conditional release the authorities were unable to locate him, and proceeded to issue a European arrest warrant on the 15th December, 2009. The decision on which the warrant was based was the sentence imposed on the 7th December 1998 as varied, a date he was legally represented having been aware of the date of the hearing, not the order made on the 29th December, 2009 revoking the conditional release at which he was not present due to his absconding. The appellant?s reliance on non–compliance with the provisions of s. 45 of the European Arrest Warrant Act 2003 for his resistance to an order for his surrender was predicated upon a failure by the Polish authority to notify him of its intention to seek an order for the revocation of his conditional release after he had breached his supervision condition having absconded to Ireland in July 2006, and the fact that he was therefore not present when that particular order was made on the 29th December 2006. On the 24th June, 2015, Donnelly J made an order for the surrender of the appellant to Poland. The appellant appealed to the Court of Appeal against that decision. The question on appeal was whether the right to a retrial, as contemplated by new Article 4a of the 2002 Framework Decision, and therefore new?s. 45 of the 2003 Act includes the right to a rehearing of a subsequent application to revoke the suspension of the balance of a sentence where the person had been present when that sentence was imposed, the argument of the appellant in that regard being that s. 45 applies because it is nonetheless an application within the proceedings as such, at which he was not present, and it has resulted in an order for his return to custody.

Held by Peart J that the provisions of s. 45 are not engaged in circumstances where a person was present for the hearing of his guilt or innocence and the imposition of his sentence but was not present for, or notified of, the application to activate the balance of the sentence which was in effect suspended when he was given conditional early release. Peart J held that the appellant was incorrect in his view that the changes wrought by the 2009 Framework Decision and specifically the insertion of new Article 4a into the 2002 Framework Decision were substantive in nature and not merely procedural; there was nothing in the wording to indicate an enlargement of the type of decisions for which the assurance of a retrial upon surrender is required.

Peart J held that the trial judge was correct to order the surrender of the appellant, and dismissed the appeal.

Appeal dismissed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 12TH DAY OF MAY 2016
1

A single issue arises on this appeal as certified by the trial judge (Donnelly J.), after she made her order dated 24th June 2015 for the surrender of the appellant to Poland. That issue is whether the provisions of s. 45 of the European Arrest Warrant Act 2003, as amended, (?the Act?) apply where the appellant was present for his trial and sentence in the requesting state, was conditionally released from prison prior to the expiration of his sentence, absconded from that state in breach of the conditions attaching to his conditional release, and was therefore not present in court when an order was made thereafter revoking his conditional release since he left no address to which correspondence should be sent, and the authorities were therefore unable to notify him of the date on which it intended to make that revocation application.

2

The resolution of that issue is a matter of statutory interpretation against the background of Council Framework Decision 2009/299/JHA (the 2009 Framework Decision) which amended the ?trial in absentia? provisions contained in Council Framework Decision 2002/584/JHA (the 2002 Framework Decision) by inserting a new Article 4a into the latter, replacing Article 5(1). Section 45 of the Act of 2003 as originally enacted gave effect to Article 5.1 of the 2002 Framework Decision in as far as ?in absentia? matters were concerned, but was replaced by new s. 45 as substituted by s. 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012 in order to give effect to new Article 4a.

3

As originally enacted s. 45 of the Act of 2003 provided as follows:-

?A person shall not be surrendered under this Act if:-

(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and

(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or

(ii) he or she was not permitted to attend the trial in respect of the offence concerned,

unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered:-

(I) be retried for that offence or be given the opportunity of a retrial in respect of that offence,

(II) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and

(III) be permitted to be present when any such retrial takes place.? [underlining added]

4

Following its amendment by substitution, s. 45 now provides:

?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.

TABLE

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

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

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

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

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;

OR

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;

OR

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;

OR

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

OR

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

OR

3.4 the person was not personally served with the decision, but

** the person will be personally served with this decision without delay after the surrender, and

** 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

** the person will be informed of the time frame within which he or she has to request a retrial or...

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6 cases
  • Minister for Justice and Equality v Zielinski
    • Ireland
    • High Court
    • 8 May 2017
    ...residence in Ireland, might raise a so-called Lipinski point pursuant to the case of Minister for Justice and Equality v. Lipinski [2016] IECA 145. The Court made a request for information pursuant to the provisions of s. 20 of Act of 2003, in particular requesting information about the re......
  • Minister for Justice and Equality v Horvath
    • Ireland
    • Supreme Court
    • 2 March 2017
    ...this appeal. It was submitted that having regard to the Surma judgment and the judgment of Peart J. in Minister for Justice v. Lipinski [2016] IECA 145, that s. 45 should apply, as substituted by s. 23 of the European arrest warrant (Application to Third Countries) and Extradition (Amendme......
  • Minister for Justice and Equality v Skwierczynski
    • Ireland
    • High Court
    • 24 October 2016
    ...at first instance. 64 Counsel also made reference to the Court of Appeal decision in Minister for Justice and Equality v. Lipinski [2016] IECA 145 where at para. 27 that court stressed that the 2009 Framework Decision had not introduced any additional scenarios where a guarantee of a retria......
  • The Minister for Justice & Equality v Lipinski
    • Ireland
    • Supreme Court
    • 13 February 2018
    ...appealed from that decision to the Court of Appeal. By a judgment delivered on the 12th May, 2016 by Peart J the appeal was dismissed ([2016] IECA 145). Mr Lipinski applied for and was granted leave to appeal to the Supreme Court by a determination dated the 4th July, 2016 ([2016] IESCDET 9......
  • Request a trial to view additional results

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