Minister for Justice and Equality v Sedzik

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 24 February 2020
• Neutral Citation: [2020] IEHC 98
• Docket Number: [2019 No. 322 EXT]
• Court: High Court
• Date: 24 February 2020

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

MAREK ADAM SEDZIK

RESPONDENT

[2020] IEHC 98

Binchy J.

[2019 No. 322 EXT]

THE HIGH COURT

Crime & sentencing – Extradition – European Arrest Warrant – Polish request for surrender of respondent – S 45 European Arrest Warrant Act 2003

Facts: The applicant Minister sought an order for surrender of the respondent on the foot of a European Arrest Warrant issued by the Krakow District Court. Whilst it was not disputed the respondent was aware of many of the convictions/proceedings detailed in the warrant, it was submitted that he could be surrendered as s 45 of the European Arrest Warrant Act 2003 had not been complied with. The matter now came before the High Court

Held by Binchy J that the order for surrender would not be granted. Notwithstanding the clear engagement of the respondent with various proceedings in the Polish Courts, the Court was satisfied that the requirements of s 45 had not been complied with. On that basis the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Binchy delivered on the 24th day of February, 2020

1 By this application the applicant seeks an order for the surrender of the respondent to the Republic of Poland pursuant to a European Arrest Warrant dated 26th May, 2017, (“the EAW”). The EAW was issued by a District Judge of the District Court in Krakow, the issuing judicial authority named in the EAW.

2 The EAW was endorsed by the High Court on 7th October, 2019. The respondent was arrested and brought before the Court on 20th November, 2017. This application first opened before the Court on 11th December, 2019, and was then adjourned until 27th January, 2020, following upon a direction by this Court, on 11th December, 2019, pursuant to s. 20 of the European Arrest Warrant Act 2003 (as amended) (“the Act of 2003”) to the Central Authority in this jurisdiction, to request certain information of the issuing state which the Court considered essential in order to arrive at a decision on the application.

3 At the opening of the application, I was satisfied that the person before the Court is the person to whom the EAW refers. This was confirmed by counsel for the respondent at the opening of the application.

4 I was further satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the Act of 2003 arise for consideration on this application, and that the surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.

5 At para. B of the EAW, it is stated that the EAW is based upon a consolidated judgment of the Regional Court in Olkusz, Second Criminal Division, dated 24th March, 2006, which became final on 11th April, 2006, combining the following convictions:

i. A judgment handed down in absentia by the Regional Court in Olkusz Seventh Division – Magistrates' Court – dated 15th September, 2003, which became final on 27th October, 2003.

ii. A judgement of the same court dated 25th November, 2003, which became final on 20th December, 2003;

iii. A judgment of the same court, Second Division, dated 13th January, 2004, which became final on 21st January, 2004, and

iv. A judgment of the same court dated 22nd April, 2004, which became final on 30th April, 2004.

6 At para. D of the EAW, the relevant box is ticked to indicate that the respondent appeared in person at the trial resulting in the decision. The decision concerned is the consolidated judgment dated 24th March, 2006, which became final on 11th April, 2006, combining the sentences imposed following upon the convictions referred to at para. 5 (i) – (iv) above, under case file reference II K 16/06.

7 At para. E of the EAW, it is stated that it relates to four offences. Particulars of each offence are provided. In summary, these are;

i. On 29th April, 2003, the respondent stole a cell phone from a named person, by running up to her, pulling it out of her hand and running away.

ii. On 27th July, 2003, the respondent vandalised a Mercedes car causing damage totalling 1,000 Polish Zlotys.

iii. On 3rd February, 2003, the respondent entered an unlocked apartment and stole two televisions, a watch and an ID card, causing a loss of 1,700 Zlotys.

iv. On 18th August, 2003, he and others spent 660 Zlotys with the knowledge that the sum had been stolen from two persons who are named.

8 It is clear in each case the acts described in the EAW would, if committed in this jurisdiction, constitute an offence under Irish law, and no argument to the contrary was presented on behalf of the respondent.

9 At para. E of the EAW, particulars are provided of the penalties applicable under Polish law in relation to each of the offences. The offences of theft are subject to a penalty of up to five years, the offence of damaging the property of another is subject to the same maximum penalty, and the offence of receiving stolen property is subject to a maximum term of imprisonment of up to five years. As stated above, the respondent received a consolidated sentence in respect of all offences of two years and eight months' imprisonment, of which one year eleven months and twenty-seven days remain to be served. Accordingly, minimum gravity is established.

10 As stated above, at para. D of the EAW, the box is ticked to indicate that the respondent was present at the trial resulting in the decision. However, this refers to the judgment on the consolidated sentence only, handed down on 24th March, 2006, (and which became final on 11th April, 2006) under case reference II K 16/06. Those proceedings did not address the innocence or guilt of the respondent, but were concerned only with an application advanced by the respondent himself (according to the EAW) to consolidate his sentences with the intent that, under the provisions of Polish law, he would receive a single sentence that is less severe than the total of all four sentences previously imposed.

11 Since no information was provided as regards the attendance of the respondent at the trials which resulted in a final decision regarding the guilt or innocence of the respondent in respect of the charges brought against him, the Central Authority here sought further information in this regard by letter dated 2nd August, 2019, whereby it requested a completed section D table in respect of each of the judgments handed down in absentia. At para. E.3 of the EAW, it was indicated that just one of these judgments had been handed down in absentia, that being the judgment of 29th April, 2013, under reference K 218/03.

12 The issuing judicial authority responded by providing a completed section D in connection with all of offences. In the cases of offences reference numbers K 102/03 and K 479/03, it ticked box 1, indicating that the respondent appeared in person at the trial resulting in the decision in each case. However, in case reference numbers 218/03 and 388/03, it ticked box number 2 indicating that the respondent did not appear at the trial resulting in the decision. In each case, having ticked the box at point 2, the issuing judicial authority then proceeded to cross out all boxes at point 3, contrary to the direction in point 3 which states: “If you have ticked the box under point 2, please confirm the existence of one of the following: …”

13 However, information was provided at point 4, even though it is conditional on the ticking of one of the boxes under points 3.1b, 3. 2 or 3.3. In case reference K 218/03 it is stated that the respondent knew about the criminal proceedings because he was interviewed as a suspect on 27th May, 2003, and was informed as to the decision to bring charges against him. It is further stated that during the interview he admitted the charges. It further states that the first hearing was scheduled for 15th September, 2003, and the respondent did not attend court in person. Almost identical information is provided in relation to case file reference K 388/03.

14 Following upon the opening of this application before this Court on 11th December, 2019, this Court directed that further information should be sought from the issuing judicial authority. Included in the information request was an enquiry as to whether or not the respondent was afforded the opportunity to reopen the question of his guilt or innocence at the hearing of the application for a consolidated judgment. This resulted in a reply dated 10th January, 2020. In answer to that question, the issuing judicial authority stated that in an application for a consolidated judgment, “the court does not re-examine the case or give a guilty or not guilty verdict”. The response (to the request for further information) also stated that, as regards case reference 218/03, a notice of hearing was personally served on the respondent on 27th July, 2003. Accordingly, on the face of it this indicates that the issuing judicial authority...