Minister for Justice, Equality and Law Reform v Sliczynski

JurisdictionIreland
JudgeMurray C.J.,Macken, J.
Judgment Date19 December 2008
Neutral Citation[2008] IESC 73
CourtSupreme Court
Date19 December 2008

[2008] IESC 73

THE SUPREME COURT

Murray C.J.

Macken J.

Finnegan J.

283/07
Min for Justice v Sliczynski

Between

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Applicant / RESPONDENT
-v-
PIOTR SLICZYNSKI
RESPONDENT/APPELLANT

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

EUROPEAN ARREST WARRANT ACT 2003 S20(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 7.2

EUROPEAN ARREST WARRANT ACT 2003 S6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 15

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 15.3

EUROPEAN ARREST WARRANT ACT 2003 S20

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 15.2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 15.3

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148

EUROPEAN ARREST WARRANT ACT 2003 S20(3)

EUROPEAN ARREST WARRANT ACT 2003 S20(4)

EUROPEAN ARREST WARRANT ACT 2003 S12(8)

EUROPEAN ARREST WARRANT ACT 2003 S11(2A)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72(b)

MIN FOR JUSTICE v TOBIN UNREP SUPREME 25.2.2008 2008 IESC 3

AG v ABINBOLA (ORSE ABIMBOLA) UNREP MCMENAMIN 1.11.2006 2006 IEHC 325 2006/4/602

R v GOVERNOR OF BRIXTON PRISON & ANOR (EX PARTE LEVIN) 1997 AC 741

AG v PARKE UNREP SUPREME MURRAY DENHAM 6.12.2004 2004/3/577

CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF POLAND ART 132

CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF POLAND ART 132.2

EUROPEAN ARREST WARRANT ACT 2003 S45(b)(i)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.1

EUROPEAN ARREST WARRANT ACT 2003 S4A

EUROPEAN ARREST WARRANT ACT 2003 S37

ABIMBOLA v MIN FOR JUSTICE UNREP HIGH 26.7.2005 (EX TEMPORE)

EUROPEAN ARREST WARRANT ACT 2003 S9

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 9

EXTRADITION

European arrest warrant

Surrender for serving of multiple prison sentences - Trial of one offence in absentia - Whether trial judge erred in relying on correspondence from requesting authority - Whether rule against hearsay offended - Objectives of process of surrender - High level of confidence between members states - Entitlement to receive and rely on information emanating from judicial authority of requesting state - Exchanges between judicial authorities to be accorded mutual respect - Entitlement of respondent to call evidence to contrary - Onus of proof - Finding that appellant fled - Relevance of subjective reasons for leaving issuing state - Consideration of objective circumstances - Nature of extradition proceedings - Whether criminal rules of evidence applicable - Inquisitorial nature of proceedings - Obligation on applicant to make case - Necessity for undertaking regarding retrial or opportunity for retrial - Notification of trial - Requirement of actual notification - Absence of undertaking - Minister for Justice v Altaravicius [2006] IESC 23 [2006] 3 IR 148, Minister for Justice v Tobin [2008] IESC 3 (Unrep, SC, 25/2/2008), Minister for Justice v Abimbola [2006] IEHC 325 (Unrep, MacMenamin J, 1/11/2006), R (Levin) v Governor of Brixton Prison [1997] 1 AC 741 and AG v Park (Unrep, SC, 6/12/2004) considered - European Arrest Warrant Act 2003 (No 45), ss 6, 10, 12, 20 and 45 - Appeal allowed in respect of offence tried in absentia and order for surrender affirmed in respect of other offences (283/2007- SC - 19/12/2008) [2008] IESC 73

Minister for Justice, Equality and Law Reform v Sliczynski

The appellant appealed against an order of the High Court directing that he be surrendered to Poland to serve four terms of imprisonment imposed on him by Polish courts in respect of four offences. On one offence he was tried in absentia and sentenced. The appellant alleged that the High Court erred in admitting inadmissible hearsay evidence comprised of correspondence from the Polish Judicial Authority. He alleged that the trial judge erred in applying the onus of proof pursuant to s. 10 of the Act of 2003 and in finding that the appellant had fled Poland. In addition, the appellant alleged that the High Court had erred in deciding that the Polish authorities were not obliged to provide an undertaking pursuant to s. 45 of the European arrest warrant Act 2003.

Held by the Supreme Court per Murray CJ (Macken, Finnegan JJ.) that the receipt of certain information was envisaged by the Act of 2003, which gave effect to the Framework Decision and so the rule against hearsay was rendered inapplicable. It was to be assumed that a statement of facts as provided was correct. It was not to be inferred that the information had to be provided by direct evidence. The trial judge was entitled to be satisfied that in leaving Poland the appellant was seeking to evade the consequences of the three sentences which had been imposed on him prior to leaving Poland. The appeal ground relating to the onus of proof would fail for lack of foundation and the trial judge was entitled to adopt the view taken. It appeared that the appellant was never notified himself of his trial and that his own failure to notify the Probation Officer of his place of residence was at root of his conviction in absentia. S. 45 of the Act of 2003 had to be interpreted in light of Irish law and not Polish law. Actual notification of a trial and not any other form of notification was acceptable. The appellant could not be surrendered for the purpose of serving a sentence in respect of the fourth offence for which he was convicted and sentenced in absentia. He would be surrendered in respect of the three other offences.

1

Murray C.J. delivered on the 19th day of December 2008

2

Judgment delivered by Murray C.J. Finnegan J. concurring.

3

Judgment delivered by Macken J. Finnegan J. concurring

4

In this matter the appellant, Mr. Sliczynski, appeals against an order of the High Court directing that he be surrendered to the appropriate authorities in Poland for the purpose of serving four terms of imprisonment imposed on him by the Polish Courts in respect of four separate offences.

5

Thus the surrender of the appellant has been sought not for the purpose of prosecuting him for any offence but for the purpose of requiring him to serve prison sentences previously imposed upon him after conviction for the offences in question.

The Background Facts
6

Of the four offences in relation to which the appellant's surrender is sought his conviction on one of them occurred when he was tried in absentia and sentenced.

7

His first three convictions occurred on 19 th January 2004, 30 th December 2004 and 24 th March 2005. On each occasion of his conviction a suspended sentence was imposed on the appellant. These were respectively - (a) 1 year 10 months imprisonment, (b) 2 years imprisonment, (c) 2 years imprisonment. The suspension of the sentence in each case was subject to certain conditions with which the appellant was bound to comply. These are referred to later in the judgment.

8

As regards the fourth term of imprisonment for which his surrender is sought, this relates to a conviction on 28 th June 2005 when the appellant was tried and convicted in absentia. On that occasion he was sentenced to two years imprisonment. The sentence was not suspended.

9

Furthermore, as a consequence of that conviction (and the fact that in breach of the conditions of suspension he had, inter alia, absconded and failed to either keep in contact or report to his probation officer) the suspension of the earlier terms of imprisonment which had been imposed was lifted and orders made requiring him to serve those sentences.

Grounds of Appeal
10

The appellant relies on four grounds of appeal they are:-

11

(a) The High Court erred in admitting as evidence and relying upon correspondence from the Polish Judicial Authority which were exhibited in Affidavits sworn on behalf of the applicant/respondent on the grounds that the facts contained in the said correspondence constituted inadmissible hearsay evidence.

12

(b) The High Court, in making an order for the surrender of the appellant pursuant to s. 10 of the Act of 2003 erred in applying the notion of the onus of proof and in particular with regard to the onus imposed on the appellant as a respondent in the application before the High Court.

13

(c) The High Court erred in finding that the appellant had fled Poland within the meaning of s. 10(d) of the Act of 2003, as amended; and,

14

(d) The High Court erred in deciding that the Polish Authorities were not obliged to provide an undertaking pursuant to s. 45 of the Act of 2003.

The Admission of Correspondence in Evidence
15

At the hearing in the High Court the learned High Court Judge relied on two letters that were received from the Requesting Authority, namely the Polish Court and in each case signed by a District Court Judge, which contained information relating to the European Arrest Warrant. The appellants have submitted that the learned trial Judge was incorrect in law in relying on that correspondence because he ought to have excluded it as offending against the rule on hearsay in the absence of direct proof of its contents.

16

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