Minister for Justice and Equality v Szamota

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 16 November 2020
• Neutral Citation: [2020] IEHC 606
• Docket Number: [2019 No. 227 EXT]
• Court: High Court
• Date: 16 November 2020

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

DORIAN SZAMOTA

RESPONDENT

[2020] IEHC 606

Binchy

[2019 No. 227 EXT]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 37 – Applicant seeking an order for the surrender of the respondent to Poland pursuant to a European arrest warrant – Whether the surrender of the respondent was prohibited by s. 37 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Szamota, to Poland pursuant to a European arrest warrant dated 26th February, 2019 (the EAW). The EAW was issued by a judge of the District Court in Wroclaw, as issuing judicial authority. The resolution of the objections raised by the respondent requires the determination of two questions: (i) Is the surrender of the respondent prohibited by s. 37 of the European Arrest Warrant Act 2003 (as amended) on the grounds that his surrender would be incompatible with the obligations of the State under the European Convention on Human Rights? (ii) Are the circumstances in which the suspended sentence imposed upon the respondent on 29th May, 2015, by the District Court of Wroclaw-Śródmieście, was activated by reason of his subsequent conviction, in absentia, by the Regional Court of Bydgoszcz on 21st February, 2017, distinguishable from the circumstances applicable in the case of Samet Ardic (Case C-571/17 PPU), such that in this case the trial resulting in the decision for the purposes of Article 4a(1) of Framework Decision 2002/584/s. 45 of the 2003 Act is the revocation hearing, and not the trial resulting in his conviction of 29th May, 2015?

Held by Binchy J that the surrender of the respondent was not incompatible with the State’s obligations under the Convention, and was not therefore prohibited by s. 37 of the 2003 Act. Binchy J did not consider there to be any distinguishing factors in this case so as to depart from the test identified by the CJEU in Ardic. Binchy J held that the revocation hearing could not be regarded as a trial resulting in the decision for the purposes of Article 4a(1) of the Framework Decision. Binchy J was satisfied that the trial resulting in the decision for the purpose of this application was the trial that took place before the District Court of Wroclaw-Śródmieście on 29th May, 2015, at which the respondent’s fair trial rights were fully respected, and about which there was no dispute as to compliance with s. 45 of the 2003 Act.

Binchy J held that the requirements of the 2003 Act in relation to this application had been satisfied, and he would make an order for the surrender of the respondent for the purpose described in the EAW.

Application granted.

JUDGMENT of Mr. Justice Binchy delivered on the 16th day of November, 2020

1 By this application, the applicant seeks an order for the surrender of the respondent to Poland pursuant to a European arrest warrant dated 26th February, 2019 (the “EAW”). The EAW was issued by a judge of the District Court in Wroclaw, as issuing judicial authority (“IJA”).

2 The EAW was endorsed by the High Court on 1st July, 2019. The respondent was arrested and brought before the Court on 23rd October, 2019, and this application proceeded on 8th November, 2019.

3 At the opening of this application, I was satisfied that the person before the Court is the person in respect of whom the EAW was issued, and counsel for the respondent confirmed that the identity of the respondent was not in dispute.

4 Counsel for both parties also affirmed that the none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003 (as amended) (the “Act of 2003”) arose, and that the surrender of the respondent was not prohibited for any of the reasons set forth in any of those sections.

5 The basis for the issue of the EAW is stated at para. B of the same to be a “ valid verdict issued by the District Court for Wroclaw-Śródmieście dated 29 May 2015.” At para. D of the EAW it is stated that the respondent appeared personally at the court that handed down the decision.

6 At para. E of the EAW it is stated that it relates to one crime. That is described in the following terms:

“[A]cting in short time intervals with a deliberate plan, in order to obtain a financial profit in a period from 16 January 2014 to 17 January 2014 in Starogard Gdański, he unlawfully made it impossible to process computer (IT) data by causing an Internet Ddos attack on the server of the company Headway sp. z o.o. owned by Jaroslaw Gasiorek with its seat in Wroclaw by means of a computer network botnet (malware) configured in a way so that it sent a large number of queries onto the said server by overloading it and thus causing its blockade on the Internet and afterwards using the Internet communicator he sent illegal threats to Jaroslaw Gasiorek saying that he will continue threatening him with the Dos attack resulting in stopping the possibility to process the computer (IT) data in order to force his victim to make a money transfer of 200 PLN to his bank account of the following number…, which act was detrimental to the company Headway… owned by Jaroslaw Gasiorek”.

7 Particulars of the provisions of Polish law whereby these actions constitute an offence are set out comprehensively in the EAW. The offences of which the respondent was convicted under Polish law were:

1. An offence contrary to Article 268a § 1 of the Penal Code which, inter alia, makes it an offence to hinder access to a computer or to process computer data, the penalty for which is a sentence of up to three years' imprisonment;

2. An offence contrary to Article 287 § 1 of the Penal Code, which makes it an offence, inter alia, to affect an automatic process of processing, collecting or transferring of computer data, without being entitled to do so, in order to obtain a financial profit or to harm another person, the penalty for which is a sentence of imprisonment ranging from three months to five years;

3. An offence contrary to Article 191 § 1 of the Penal Code which makes it an offence, inter alia, to use an illegal threat in order to force another person to engage in a certain action, the penalty for which is sentence of imprisonment of up to three years.

8 The EAW states at para. C that the respondent was sentenced to a penalty of one year of imprisonment, and that the full sentence remains to be served. It is apparent from all of the foregoing that minimum gravity is established.

9 No box has been ticked in relation to any of the matters set out at para. E of the EAW. Accordingly, it is necessary to establish that the acts as described in the EAW correspond to an offence or offences in this jurisdiction.

10 On 4th November, 2019, the Office of the Chief State Solicitor wrote to the solicitors for the respondent identifying those offences in this jurisdiction which, the applicant claims, correspond to the offences of which the respondent was convicted in Poland, as described in the EAW, as follows:

i. Blackmail, extortion or demanding money with menaces, contrary to s. 17 of the Criminal Justice (Public Order) Act, 1994;

ii. Interference with an information system without lawful authority, contrary to s. 3 of the Criminal Justice (Offences Relating to Information Systems) Act 2017;

iii. Interference with data without lawful authority, contrary to s. 4 of the Criminal Justice (Offences Relating to Information Systems) Act 2017;

iv. Unlawful use of computer, contrary to s. 9 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

11 Section 38 of the Act of 2003 provides that a person shall not be surrendered to an issuing state under the Act of 2003 in respect of an offence unless it is established that the offence corresponds to an offence under the laws of the State. Although in the points of objection filed on behalf of the respondent it is pleaded that his surrender is prohibited by s. 38 of the Act of 2003, no arguments in support of this ground of objection were advanced on behalf of the respondent on the grounds that the acts described in the EAW did not correspond to offences in this jurisdiction. I am satisfied that the acts as described in the EAW correspond to the offences identified by counsel for the applicant.

12 At para. F of the EAW, it is stated that the penalty imposed upon the respondent was conditionally suspended for a probationary period of five years. It is stated that the sentenced person was present at the main court session during which the decision was announced, and that the verdict was not appealed. This decision was handed down on 29th May, 2015. The EAW then goes on to state that on 16th May, 2017, the same District Court ordered the execution of the sentence of imprisonment due to the fact that during the probationary period the sentenced person committed again a similar “ deliberate” crime for which he received a sentence of imprisonment.

13 In an affidavit sworn on 6th November, 2019, in opposition to the application, the respondent avers that while he was present at the proceedings which resulted in his conviction and sentence to one year's imprisonment, suspended for five years, he has only become aware, in the course of these proceedings, that he was subsequently prosecuted for a similar offence alleged to have been committed while he was on probation for the offence in respect of which his surrender is now sought. He says he was not aware of this later prosecution, which resulted in his conviction, in absentia, which in turn gave rise to the decision to activate the suspended sentence. Since he was not aware of this prosecution, he was neither able to attend nor to instruct counsel to represent him in his defence.

14 Counsel for the respondent submitted that, this being the case, the surrender of the respondent...