Minister for Justice and Equality v Slawomir Wiktur Palonka

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 08 July 2021
• Neutral Citation: [2021] IEHC 840
• Docket Number: [2019 No. 195 EXT.]
• Year: 2021
• Court: High Court

Between

Minister for Justice and Equality

Applicant

and

Sławomir Wiktur Palonka

Respondent

[2021] IEHC 840

[2019 No. 195 EXT.]

SUPREME COURT APPEAL NO. 2019/222

THE HIGH COURT

Findings of Mr. Justice Paul Burns delivered on the 8th day of July, 2021

1 By Order of the High Court, Binchy J., dated 29th November, 2019, the surrender of the respondent to the Republic of Poland (“Poland”) was ordered pursuant to a European arrest warrant dated 29th January, 2019 (“the EAW”). That Order is the subject of an appeal pending before the Supreme Court, which has remitted the matter back to the High Court in order to seek additional information from the issuing state and to make such further findings of fact as seem appropriate. This rather unusual procedure arises in circumstances where the Supreme Court was of the opinion that it did not have sufficient information before it to determine the issues on appeal and where the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), provides that it is for the High Court to request additional information from the Polish authorities. The role of this Court at this stage is limited to seeking additional information and making findings of fact, but not to determine any question of law or to make any order granting or refusing the requested surrender. The High Court Order of 29th November, 2019, remains a valid Order, although subject to a stay, unless set aside or varied by the Supreme Court.

2 The surrender of the respondent is sought to enforce a sentence of ten months' deprivation of liberty imposed on 23rd August, 2002, by the Regional Court in Hrubieszów (case reference number II K 415/02) in relation to an offence concerning the illegal importation of cannabis in July 1999.

3 The respondent had been the subject of an earlier European arrest warrant dated 6 November, 2012, seeking surrender in order to enforce a sentence of ten months' imprisonment imposed on 30th June, 2003 by the District Court in Nowy Tomysl, as amended by the Regional Court in Poznan on 29th January, 2004. That sentence and warrant related to an offence concerning the illegal importation of cannabis in March 2003. Surrender pursuant to that warrant was refused by the Court of Appeal on 18th May, 2015. ( Minister for Justice v Palonka [2015] IEHC 69.)

4 At part F of the EAW in these proceedings, it is indicated that the respondent had been present on 23rd August, 2002 when the sentence of ten months' deprivation of liberty was imposed, that the said sentence was conditionally suspended for 3 years and that “ In connection with the fact that Slawomir Wiktor Palonka, in the period of trial, committed another offence”, the Regional Court in Hrubieszow by decision dated 16th January, 2006 ruled that the sentence of 10 months' deprivation of liberty was to be executed.

5 The respondent was not present for any hearing in respect of the decision to order execution of the previously suspended sentence and it was argued on his behalf that surrender was precluded as the requirements of Article 4a of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), as incorporated into Irish law by s. 45 of the Act of 2003, had not been met. The High Court dismissed this objection on the grounds that the issue had been determined against the respondent by the Court of Justice of the European Union (“the CJEU”) in Ardic (Case C-571/17 PPU) which, in general terms, ruled that Article 4a of the Framework Decision did not apply to a hearing involving the revocation of conditional suspension of a sentence on grounds of infringement of the conditions, provided the revocation decision did not change the nature or level of the penalty initially imposed.

6 The respondent had also argued, inter alia, that surrender was precluded on grounds of estoppel or as amounting to an abuse of process. The respondent relied upon the previous proceedings in which surrender had been refused and on the lapse of time between the commission of the offence and the issue of the EAW herein. These objections were also dismissed by the High Court.

7 The Supreme Court granted leave to appeal the High Court Order by a determination in Minister for Justice and Equality v. Palonka [2020] IESCDET 54, dated 24th April, 2020, in which the Supreme Court identified two points of law of general public importance:-

“1. whether on the facts of this case the issue of the second EAW, seven years after the issue of a warrant in this jurisdiction in relation to a separate offence, and four years after the refusal of surrender in that case, may be seen as an abuse of process, justifying refusal of surrender; and

2. whether surrender may be ordered in respect of the in absentia activation of a suspended sentence if such activation was triggered by an in absentia conviction for which surrender has been refused.”

8 In a decision dated 14 July, 2020, ( The Minister for Justice v. Palonka [2020] IESC 40), the Supreme Court indicated that it did not have sufficient clarity as to the relevant facts in order to dispose of the appeal before it. As stated earlier herein, the matter was remitted to the High Court to seek further information, if persuaded of the necessity to do so, and the Supreme Court suggested some possible queries that could be raised as follows:-

“1. Was the suspension of the July 1999 sentence of 10 months lifted, and thus became operative, due to the commission of another offence in March 2003?

2. When and why did that happen?

3. There was a hearing for the offence of March 2003. That happened in June 2003 and January 2004. Why were there two hearings?

4. Was the appellant present for either or both hearings? If he was absent, was he served with legal notice of the hearing, and if so, how? Was he represented and if so on the basis of what instructions given to a lawyer representing him?

5. In January 2006, the suspended sentence for the July 1999 offence appears to have been lifted, thus becoming a jail sentence of 10 months instead of a suspended sentence. Was the appellant present for the hearing? If he was absent, was he served with legal notice of the hearing, and if so, how? Was he represented and if so on the basis of what instructions given to a lawyer representing him?

6. In May 2015, the application for surrender of the appellant on the March 2003 offence was refused in Ireland. The Polish authorities then sought surrender on the basis of the July 1999 offence by request dated January 2019 for the July 1999 offence. Why did the authorities in Poland wait until after the failure of the surrender request in respect of the March 2003 offence to seek surrender on the July 1999 offence?”

9 The Supreme Court also indicated that:-

“It is to be emphasised, however, that the High Court should make such additional findings of fact as appeared to that court to be appropriate on the basis of the evidence, including such additional information as may come from the Polish authorities. Insofar as findings may be required they should relate to such facts as might reasonably be necessary to enable an assessment to be made of the legal issues, including the possible necessity for a reference to the Court of Justice of the European Union on the imposition of a sentence, or activation of a sentence, in absentia and on the issue of abuse of process.”

10 When the matter was remitted to the High Court as aforesaid, Binchy J. had been elevated to the Court of Appeal and so it fell to this Court to deal with the matter. Having heard substantial submissions from the parties over a number of dates, the Court engaged in a lengthy process of seeking additional information. The correspondence was as follows:-

Regional Court Hrubieszów (RCH); Issuing judicial authority, District Court in Zamosc (IJA);

23/09/20 Request for additional information;

12/10/20 Reply from Regional Court Hrubieszów;

16/10/20 reply from District Court in Zamosc;

11/12/20 Request for additional information;

30/12/20 Reply from Regional Court Hrubieszów;

08/01/21 Reply from District Court in Zamosc;

10/02/21 Request for additional information;

16/02/21 Reply from Regional Court Hrubieszów;

18/02/21 Reply from District Court in Zamosc;

04/03/21 Request for additional information;

10/03/21 Reply from Regional Court Hrubieszów;

12/03/21 Reply from District Court in Zamosc;

14/04/21 Request for additional information;

16/04/21 Reply from District Court in Zamosc;

07/05/21 Request for additional information;

11/05/21 Reply from District Court in Zamosc;

21/05/21 Request for additional information;

26/05/21 reply from District Court in Zamosc.

11 I do not propose to go through the details of each request and reply as these documents will be available to the Supreme Court when it recommences hearing the appeal.

12 In terms of additional pleadings since the matter was remitted from the Supreme Court, the respondent swore an affidavit dated 17th November, 2020 and the solicitor for the respondent, Mr. Shane McMahon, swore an affidavit dated 8th December, 2020.

The Questions Proposed by the Supreme Court

13 Turning to the questions proposed by the Supreme Court, on foot of the additional information received, I answer same as follows:-

Q. 1. Was the suspension of the July 1999 sentence of 10...