Minister for Justice and Equality v Sergejs Radionovs

• Jurisdiction: Ireland
• Judge: Ms. Justice Elizabeth Dunne
• Judgment Date: 14 December 2023
• Neutral Citation: [2023] IESC 37
• Court: Supreme Court
• Docket Number: S:AP:IE:2022:000116

Between

Minister for Justice and Equality

Appellant

and

Sergejs Radionovs

Respondent

[2023] IESC 37

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

Collins J.

S:AP:IE:2022:000116

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of Ms. Justice Elizabeth Dunne delivered on the 14th day of December 2023

Introduction

1 . This appeal raises net, but important, questions as to the proper construction and application of Article 4a of Council Framework Decision 2002/584/JHA of 13 ^th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States 1 (“the Framework Decision”) to which effect is given in the State by s. 45 of the European Arrest Warrant Act 2003 (as amended) (“the 2003 Act”).

2 . Article 4a provides as follows:

“ The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the

European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:”

3 . Article 4a(1) then sets out four alternative conditions. For present purposes, it appears necessary only to set out that at (a):

“(a) in due time:

(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;

and

(ii) was informed that a decision may be handed down if he or she does not appear for the trial;”

4 . There is a substantial body of jurisprudence of the Court of Justice of the European Union (CJEU) addressing the meaning and scope of the expression “ trial which resulted in the decision” in Article 4a, including the recent decision of that Court in Joined Cases C-514/21 & C-515/21 LU & PH (“ LU”). The decision in LU, which arose from references made by the Court of Appeal, was handed down after the decision of the High Court in these proceedings. 2

Background

5 . The material facts can be briefly stated. Mr. Radionovs was convicted of two offences in 2014 resulting in each case in a sentence of imprisonment and a period of placement under police supervision. On 27 ^th October, 2015, a court in Riga consolidated these sentences resulting in a cumulative custodial sentence of four years and nine months and placement under police supervision for three years. No issue arises as to the 2014 convictions or the order of 27 ^th October, 2015.

6 . Police supervision “is an additional sentence, which a court may adjudge as a compulsory measure, in order to supervise the behaviour of the person released from a place of deprivation of liberty and so that this person may be subjected to the limitations prescribed by the police institution” (s. 45 of the Latvian Criminal Law, cited at para 12(ii) of the High Court judgment, [2022] IEHC 614). The period of police supervision commences when the custodial sentence is complete.

7 . Whilst in prison, Mr. Radionovs was notified orally and in writing that as a condition of police supervision he was required to report to Jekabpils police station (Mr. Radionovs' place of residence was in Jekabpils) within three working days of his release from custody (which was scheduled for 22 ^nd August, 2019). He was also notified that failure to attend the requisite police station could lead to an administrative penalty being imposed on him pursuant to s. 177 of the Administrative Violations Code of Latvia. He signed a copy of the written notification to confirm his understanding of it.

8 . Mr. Radionovs was released from custody on 22 ^nd August, 2019. He failed to report to Jekabpils police station. As a result, he was found guilty of committing an “ administrative violation” of s. 177 by the Zemgale District Court on 11 ^th May, 2020 and again on 27 ^th May, 2020, resulting, respectively, in fines of €30 and €40 being imposed on him.

9 . Latvian law provides that if a person subject to police supervision violates its provisions in bad faith, a court “may replace the terms of an additional sentence that has not been served with the deprivation of liberty, counting two police supervision days as one liberty deprivation day”. A bad faith violation is established if the person has been administratively sentenced twice within a one-year period for such a violation (s. 45(5) and (6) of the Latvian Criminal Law). The making of such an order is not mandatory even where a violation in bad faith is established: “ in case of relevant circumstances (if there exist any circumstances justifying the avoidance of convict from the sentence served) the Court has a possibility to reject the application” (letter from the Zemgale District Court dated 17 ^th March, 2022).

10 . In June 2020 an application was made by the Public Order Police Division of Jekabpils Station to the Zemgale District Court to convert Mr. Radionovs' remaining period of police supervision into a “ deprivation of liberty”. On 25 ^th June, 2020 a court summons was sent by registered post to Mr. Radionovs' notified place of residence in Jekabpils. The summons was not collected and was returned on 31 ^st July, 2020.

11 . On 19 ^th August, 2020, a hearing took place at Zemgale District Court. Mr. Radionovs was not present and the hearing proceeded in his absence. On that date, the court issued a written decision ordering that the remaining period of police supervision – two years and two days — should be converted into a custodial sentence of one year and one day in accordance with the 2:1 ratio prescribed by s. 45(5) of the Criminal Law.

12 . A transcript of the Court's decision was sent to Mr. Radionovs but it was returned unclaimed. It was open to Mr. Radionovs to appeal the decision of the Zemgale District Court but no such appeal was brought by him.

13 . On 26 ^th February, 2021, a European arrest warrant issued for Mr. Radionovs to enforce the custodial sentence was imposed by the Zemgale District Court. The warrant was endorsed by the High Court on 21 ^st December, 2021 and Mr. Radionovs was arrested on the same day.

High Court Judgment

14 . The sole ground of objection to surrender advanced in the High Court related to Article 4a of the Framework Directive/s. 45 of the 2003 Act. Mr. Radionovs contended that the order of the Zemgale District Court of 19 ^th August, 2020 altered the nature and quantum of the sentence previously imposed on him. On that basis and having regard also to the fact that the District Court order was a discretionary order, Mr. Radionovs contended that the hearing on 19 ^th August, 2020 was the “ trial which resulted in the decision” for the purposes of Article 4a (or, in terms of s. 45, “the proceedings resulting in the sentence or detention order”). That trial had been conducted in his absence and there was no evidence (so it was said) that he had received notice of the hearing or that he had waived his right to attend. The Minister disputed the contention that the hearing on 19 ^th August, 2020 came within Article 4a or s. 45 and also maintained, in the alternative, that Mr. Radionovs had waived his right to attend in any event.

15 . In her judgment, Biggs J. referred to the relevant CJEU jurisprudence and in particular the decisions of the CJEU in Case C-270/17 PPU Tupikas, Case C-271/17 PPU Zdziaszek and Case C-571/17 PPU Ardic. She also referred to a number of decisions of the Irish courts, including Minister for Justice and Equality v. Lipinski [2018] IESC 8, Minister for Justice and Equality v. Fafrowicz [2020] IEHC 680, Minister for Justice and Equality v. Szamota [2021] IECA 209 (which had resulted in one of the two references determined in LU), and Minister for Justice and Equality v. Lukaszka [2021] IEHC 631.

16 . Tupikas, Zdziaszek and Ardic were considered at length by the Court of Appeal (Collins J.; Birmingham P. and Edwards J. concurring)) in Szamota and Biggs J. referred extensively to his analysis.

17 . In Tupikas, the CJEU stated that “ trial which resulted in the decision” was to be regarded as an autonomous concept of EU law and was to be understood as “ referring to the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European Arrest Warrant”. Where there were successive judicial decisions, what was decisive was “ the judicial decision finally disposing of the case on the merits, in the sense that there are no further avenues of ordinary appeal available”. The focus of Article 4a was on that final stage.

18 . In Zdziaszek, Mr. Zdziaszek had been sentenced following a number of convictions. Following a change in the law, his sentences had been combined into one cumulative sentence in a manner which resulted in an overall reduction in his custodial sentence. An issue was referred to the CJEU as to whether the hearing which resulted in the reduction of his sentence – which proceeded in Mr. Zdziaszek's absence – was to be regarded as the “ trial which resulted in the decision”. The CJEU noted that, while the decision to amend the sentence previously imposed did not affect the finding of guilt made at his earlier trials, it did modify the quantum of the penalty imposed. Crucially, the level of the cumulative sentence was not prescribed and depended on the court's assessment of the facts. Thus, it was possible that, if Mr. Zdziaszek had been present or represented, he would have obtained a greater reduction. That position was different, in the court's view, to measures that simply related to the methods of execution of a custodial sentence. The concept of a “...