Minister for Justice and Equality v Fafrowicz

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 15 December 2020
• Neutral Citation: [2020] IEHC 680
• Court: High Court
• Docket Number: [2018 NO. 316 EXT.]

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

DARIUS TADEUSZ FĄFROWICZ

RESPONDENT

[2020] IEHC 680

Paul Burns

[2018 NO. 316 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking an order for the surrender of the respondent to the Republic of Poland pursuant to a European arrest warrant – Whether surrender was precluded under s. 45 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 Fąfrowicz, to the Republic of Poland pursuant to a European Arrest Warrant dated 9th September, 2018 (the EAW) issued by Judge Hevler of the Regional Court in Nowy Sącz, Poland, as the issuing judicial authority. The EAW indicated that the surrender of the respondent was sought to enforce a sentence of 3 years’ imprisonment, of which 2 years, 1 month and 25 days remained to be served. A notice of objection to surrender dated 24th January, 2020 was delivered but at hearing, counsel for the respondent confirmed that only one point of objection was being pursued, namely that surrender was precluded under s. 45 of the European Arrest Warrant Act 2003, as amended.

Held by Burns J that, having decided that the hearing on 4th June, 2014, conducted in the absence of the respondent, was a hearing in respect of which the respondent had a right to be present and participate in, it fell upon the issuing state to demonstrate compliance with the requirements of article 4a of the Framework Decision as enacted in s. 45 of the 2003 Act, or alternatively to unequivocally establish a waiver of the right to be present. Burns J held that the issuing state had failed to unequivocally establish a waiver of the right to be present and had also failed to demonstrate compliance with the requirements of s. 45 of the 2003 Act. Burns J held that in such circumstances, surrender was precluded.

Burns J held that the Court would make an order refusing surrender.

Application refused.

JUDGMENT of Mr. Justice Paul Burns delivered on the 15th day of December, 2020

1 By this application the applicant seeks an order for the surrender of the respondent to the Republic of Poland (“Poland”) pursuant to a European Arrest Warrant dated 9th September, 2018 (“the EAW”) issued by Judge Anna Hevler of the Regional Court in Nowy Sącz, Poland, as the issuing judicial authority. The EAW indicates that the surrender of the respondent is sought to enforce a sentence of 3 years' imprisonment, of which 2 years, 1 month and 25 days remains to be served.

2 The EAW was endorsed by the High Court on 19th November, 2018 and the respondent was arrested and brought before the High Court on 14th January, 2020.

3 I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. This was not put in issue by the respondent.

4 I am further 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 and that the surrender of the respondent is not prohibited for the reasons set forth therein.

5 I am satisfied that the minimum gravity requirements of the Act of 2003 are met. The sentence in respect of which surrender is sought is in excess of 4 months' imprisonment.

6 I am satisfied that correspondence exists between the offences set out in the EAW and offences under the law of the State, namely theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, as amended (“the Act of 2001”), burglary contrary to s. 12 of the Act of 2001 and criminal damage contrary to s. 2 of the Criminal Damage Act, 1991. No issue was taken in respect of correspondence.

7 A notice of objection to surrender dated 24th January, 2020 was delivered but at hearing, counsel for the respondent confirmed that only one point of objection was being pursued, namely that surrender was precluded under s. 45 of the Act of 2003.

8 At part B of the EAW, the enforceable judgment is stated as:-

“A cumulative judgement of Sąd Rejonowy [District Court] in Nowy Targ dated 4 June 2014, case ref. no. II K 285/14.”

9 At part D of the EAW, the relevant sections are highlighted to indicate as follows:-

“No, the person did not appear in person at the trial resulting in the decision in the case II K 285/14 ….

the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial in the case ref. no. II K 285/14 which resulted in the decision, in such a manner that it was unequivocally established that he was aware of the scheduled trial, and was informed that a decision may be handed down if he does not appear for the trial.”

10 By way of information as to the matters indicated above, it was further stated in the EAW:-

“Despite being notified twice by the postal services of the correspondence waiting to be collected and containing a notice concerning the date and place of the hearing in the case ref. no. II K 285/14 as well as relevant instructions, Dariusz Fąfrowicz did not collect the correspondence. In accordance with the Polish criminal procedure, such service is considered effective. Furthermore, the appearance of an accused person at a hearing concerning a cumulative judgement is not obligatory unless the court decides otherwise, which did not happen in this particular case. Thus, Dariusz Fąfrowicz's appearance at the hearing in question was not obligatory.”

11 By way of a response to a request for additional information, the issuing judicial authority indicated by letter dated 30th August, 2018 that the respondent had not applied for the cumulative sentence; that the Court had a discretion at the cumulative hearing as to what penalty to impose and that the cumulative penalty related to two separate penalties previously imposed in case reference number II K 613/11 and case reference number II K 814/11, which improved the position of the respondent. The letter set out that the respondent did not appear in person at either of those two underlying trials and referred to a previous European arrest warrant which had been issued in respect of those underlying sentences before the cumulative judgment was imposed. A previous European arrest warrant dated 7th March, 2013 had been issued seeking the respondent's surrender to serve the two underlying sentences but the High Court had declined to endorse same, although neither the applicant nor the respondent were able to say why this had occurred.

12 By letter dated 1st November, 2018, the issuing judicial authority was requested to provide additional information as to how the defence rights of the requested person had not been breached, as the evidence before the Court did not unequivocally establish that he was aware of the scheduled date and place of the trial resulting in the judgment of 4th June, 2014. The issuing judicial authority responded by letter dated 2nd November, 2018, pointing out that the relevant Polish law had been complied with. It pointed out that the respondent had failed to collect the notification in person because he had been hiding from law enforcement since 2012 and so it was out of his own free will that he did not participate in the hearing.

13 The respondent swore an affidavit dated 27th January, 2020 in which he averred, inter alia, that he had come to Ireland in 2012 and had not received any notice concerning the hearing, thus he was unaware of the hearing in case reference number II K 285/14 in which the cumulative sentence was imposed. It is noted that the respondent did not deny knowledge of the underlying sentences imposed upon him in 2011 prior to the cumulative hearing in 2014.

14 By way of a further request for additional information, the Court asked the issuing judicial authority to set out the basis on which it believed the respondent was hiding from law enforcement at the time and any information indicating the respondent had unequivocally waived his entitlement to be informed of the relevant hearing. By letter dated 16th October, 2020, the issuing judicial authority responded as follows:-

“B. in both cases the court imposed on Dariusz Fąfrowicz penalties of imprisonment which were not suspended. He was obliged to inform the judicial authorities of any change of his whereabouts in order to enable the judicial authorities to summon him at prison effectively; ….

D. as was stated in your correspondence, Dariusz Fąfrowicz claims that he moved to Ireland in 2012. His statement is also an evidence that he deliberately moved to another country despite the fact that he was convicted to imprisonment. In case ref. no. II K 814/11 he even agreed with the Public Prosecutor his penalty – which was indicated in the first EAW issued on 07/03/2013; ….

G. as early as prior to his first questionings in cases II K 613/11 and II K 814/11. Dariusz Fąfrowicz had been instructed, inter alia, about his obligation to inform the authority conducting the cases of each change of his residence address and – in the event of the residing abroad – to designate an addressee for the service of documents in Poland. He confirmed the receipt of such instructions with his own signature.

The convicted is still under this obligation.”

15 The response of 16th October, 2020 indicates that as a result of a change in Polish law, the Court was obliged to issue another judgment, namely the cumulative sentence of 4th June, 2014 (case reference number II K 285/14), and to issue a new European arrest warrant based on that judgment.

16 Counsel for the respondent submitted that the relevant hearing for the purposes of s. 45 of the Act of 2003 was the hearing of 4th June, 2014, and that attempting to deliver the notification at the respondent's last known address did not constitute a...