Minister for Justice and Equality v Tomczak Slawomir

• Jurisdiction: Ireland
• Judge: Ms. Justice Caroline Biggs
• Judgment Date: 06 December 2021
• Neutral Citation: [2021] IEHC 838
• Court: High Court
• Docket Number: [2021 No.201 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Tomczak Slawomir

Respondent

[2021] IEHC 838

[2021 No.201 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to the Republic of Poland pursuant to a European arrest warrant – Whether surrender was prohibited pursuant to s. 38 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 Slawomir, to the Republic of Poland pursuant to a European Arrest Warrant dated 12th of January 2015 (the EAW). The EAW was issued by the Vice-President of the District Court, Torun, as the issuing judicial authority. The EAW sought the surrender of the respondent in order to enforce a sentence of imprisonment imposed upon the respondent on the 20th of January 2009, of which two hundred and nine days remained to be served. The respondent objected to surrender on a number of grounds, submitting that the court was prohibited from surrendering him pursuant to ss. 45, 37 and 38 of the European Arrest Warrant Act 2003, as amended.

Held by Biggs J that the rights of the defence had not been breached in the circumstances. Biggs J was satisfied that the requirements of s. 45 had been complied with and the court was disposed to dismiss that ground of objection. Biggs J was satisfied that surrender of the respondent would not be incompatible with the obligations of the State under the European Convention on Human Rights, the protocols thereto or the Constitution and she dismissed the respondent’s objection to surrender based on s. 37 of the 2003 Act. The court did not find correspondence with offences under the law of the State.

Biggs J held that, as severance was not possible in the circumstances by reason of the composite or aggregate sentence having regard to the decision in Minister for Justice Equality and Law Reform v Ferenca [2008] IESC 52, the court would refuse to surrender the respondent.

Application refused.

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 06th day of December 2021

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 12th of January 2015 (“the EAW”). The EAW was issued by Elzbieta Makolus, Vice-President of the District Court, Torun, as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent in order to enforce a sentence of imprisonment imposed upon the respondent on the 20th day of January 2009, of which two hundred and nine days remains to be served.

3 The EAW was endorsed by the High Court on the 19th day of July 2021 and the respondent was arrested and brought before the High Court on the 28th day of October 2021 on foot of same.

4 I am satisfied that the person before the court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

5 I am satisfied that 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”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.

7 Part E of the warrant sets out the number and the circumstances in which the offences were committed. Part E reads as follows:

“E. Offence(s):

1. This warrant related to in total: 2 offences

2. Description of the circumstances in which the offence(s) was (were) committed:

□ an offence committed on 27 September 2007 in Torun – perpetration, case number X K 1617/07

□ an offence committed on 27 September 2007 in Torun – perpetration, case number X K 1617/07

3. Nature and legal classification of the offence(s):

— an offence under article 62 section 3 in connection with article 62 section 1 of Anti-Drug Abuse Act of 29 July 2005 – possession of intoxicants, act of a lesser significance court file No X K 1617/07

— an offence under of 178 a paragraph 2 of Penal Code and article 244 of Penal Code – riding a bicycle being drunken and not complying with the prohibition imposed by the court to drive mechanical vehicle or bicycles X K 1617/07.”

The latter offence is described in part E as follows:

“4. On 27 September 2007 in Torun he was riding a bicycle on the public road being drunken, i.e. I test – 0,58 milligram/ litre breath alcohol, II test – 0,54 milligram / litre of breath alcohol, and by which he did not comply to the prohibition imposed by the court in Torun by the verdict of 28 September 2005, court file number XK 967/05 to drive mechanical vehicles and bicycles for the period of 2 years.”

8 The respondent objected to surrender on a number of grounds, he submits that the court is prohibited from surrendering him pursuant to Section 45, 37 and 38 of the Act of 2003.

Whether surrender is prohibited by Section 45?

Section 45 of the 2003 Act sets out the following:

“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 or the Trade and Cooperation Agreement arrest warrant, as the case may be, was issued, unless in the case of a European arrest warrant, the 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 and in the case of a Trade and Cooperation Agreement arrest warrant, the warrant indicates the matters required by paragraph 1(i) of Article LAW.SURR.81 of the Cooperation and Trade Agreement, as set out in the table to this section.”

9 Part D of the warrant states that Mr Tomczak appeared in person at the trial resulting in the decision, that being the decision on which the warrant is based, on the 1st of April 2008. It was unclear however from the warrant if Mr Tomczak was present on the 20th of January 2009 when an appeal took place and the actual sentence was imposed. The respondent swore an affidavit dated the 25th of November 2021, wherein he indicated that he had no recollection of the first instance hearing, but he does not contest that he was present, however he denies undertaking to furnish any address. Clarification was sought on this issue by way of Section 20 request on the 20th of July 2021. The reply dated the 7th of September 2021 stated as follows:

“Slawomir Tomczak failed to appear at the sitting of the Court on 20th January 2009.

The notification on the date of the sitting had been correctly delivered to the only address the Court was aware of. The convict twice failed to collect the letter which has been adviced [sic], that was why, the notification on the day of the sitting was assumed as delivered. At the same time, the probation officer established at that time, that the then current residence address of Slawomir Tomczak was not known to him, as he learnt, from the step brother of the convict that Slawomir Tomczak had been already staying outside the territory of Poland.

During the proceedings relating to the change of the non-executed penalty of limitation of freedom into the replacement penalty of imprisonment, the convict did not avail himself from the assistance of the defence attorney.

The copy of the decision, together with the instructions relating to the manner and date of filing the appeal was delivered to the convict by a registered letter. Slawomir Tomczak, again failed to collect the letter which had been adviced [sic], twice, and that was why, in accordance with the provisions in force, the notification on the day of the sitting was assumed as delivered. The letter was returned to the Court with the note: “addressee unknown”.

Slawomir Tomczak did not submit any complaint against the decision of 20th January 2009.”

On foot of this information the court sent a further section 20 request dated the 1st of November 2021, wherein the court asked:

The reply was dated the 15th of November 2021 and states:

In Minister for Justice and Equality v. Zarnescu [2020] IESC 59 (“ Zarnescu”), the Supreme Court indicated that s. 45 of the Act of 2003 is to be given a purposive interpretation and that even though a particular set of circumstances may not fit neatly into one of the scenarios set out in Table D, it may nevertheless be permissible for the court to order surrender if satisfied that the requirements of s. 45 have been substantively met. However, as Baker J. pointed out in Zarnescu, the court, before making an order for surrender in such circumstances, must take a step back and satisfy itself that the defence rights of the respondent have not been breached and will not be breached.

• “1. On the 1st April 2008, when the court imposed a limitation of liberty, was Mr Tomczak informed that if he failed to comply with the terms of that penalty, he would receive a penalty of 209 days in default?

• 2. With regard to his address can you please clarify if Mr Tomczak provided authorities with an address that he would be contactable at in advance of his trial in relation to case reference number XK 1617/07 if so, please provide details of same?

• 3. If Mr Tomczak provided you with a pre-trial address, was he informed of any obligation on him to inform authorities of a change of address and to provide them with an updated address?

• 4. Did Mr Tomczak provide you with an updated address?

  Can you please complete a new Part D in relation to the court appearance on the 20th January 2009?”

• “1. On 1st April 2008, i.e. on the day the sentence was adjudicated, the...