Minister for Justice Equality and Law Reform v Stankiewicz

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 December 2009
• Neutral Citation: [2009] IESC 79
• Date: 01 December 2009
• Court: Supreme Court

[2009] IESC 79

THE SUPREME COURT

Denham J.

Geoghegan J.

Finnegan J.

Record No. 139/2008

Min for Justice v Stankiewicz

[2009] IESC 79

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Respondent

and

JAROSLAV STANKIEWICZ

Respondent/Appellant

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

MIN FOR JUSTICE v TOBIN 2008 4 IR 42 2008/42/9105 2008 IESC 3

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

MIN FOR JUSTICE v GHEORGHE UNREP SUPREME 18.11.2009 2009 IESC 76

EXTRADITION

European arrest warrant

Points of objection - Fleeing - Whether respondents "fled" from issuing state - Suspended sentence imposed - Alleged bona fide departure from issuing state - Subsequent conviction in absentia - Breach of condition of suspension - Whether conviction in absentia should be ignored - Onus of proof on applicant - Mere assertions - Whether any knowledge of later proceedings - Presumption that issuing state complied with Framework Decision - Mutual trust and confidence - Minister for Justice v Tobin [2008] IESC 3, [2008] 4 IR 42 distinguished; Minister for Justice v Sliczynski [2008] IESC 73, (Unrep, SC, 19/12/2008) and Minister for Justice v Gheorghe [2009] IESC 76, (Unrep, SC, 18/11/2009) considered- European Arrest Warrant Act 2003 (No 45), ss 10 and 45 - Criminal Justice (Terrorist Offences) Act 2005 (No 2), s 71, Appeal dismissed; order of High Court affirmed (139/2008 - SC - 1/12/2009) [2009] IESC 79

Minister for Justice v Stankiewicz

Facts The appellant received a suspended sentence in Poland in respect of convictions on two offences.

The sentences were imposed by a Polish court on the 15th January, 2001 with a sentence of one year and four months but suspended for five years. The appellant alleged that there were no conditions attaching to the suspension, that he was free to leave the country any time he wished and that to the knowledge of the authorities he worked in Germany for three days in the week for a substantial time. On the alleged basis that he wanted to improve himself he emigrated to Ireland in March, 2005. He says that this was a bona fide departure from Poland and that he could not have been characterised as having "fled" within the meaning of section 10. The appellant is appealing against an order of the High Court (Peart J.) made on the 6th May, 2008 and ordering, pursuant to a European arrest warrant that the appellant be surrendered to such person duly authorised by the Republic of Poland to receive him. The appellant contended that the only legal point for appeal is the question of whether the appellant can be said to have "fled" within the meaning of section 10 of the European Arrest Warrant Act, 2003 as amended by section 71 of the Criminal Justice (Terrorist Offences) Act, 2005 and as interpreted by this court in Minister for Justice, Equality and Law Reform v. Tobin [2008] 4 I.R. 42.

Held by the Supreme Court (Geogeghan J. delivering the judgment of the court) in dismissing the appeal; that the trial judge correctly distinguished the case before him from the Tobin case. The Tobin case was based on "the very particular facts of that case"; there was not a fleeing from justice at the relevant time, rather there was a departure from Hungary with the consent of the authorities that there need be no return for the trial.

Reporter: C. O'C

1 JUDGMENT of Mr. Justice Geoghegan delivered the 1st day of December 2009

2 Judgment delivered by Geoghegan J. [nem diss]

3 This is an appeal from an order of the High Court (Peart J.) made on the 6 ^th May, 2008 and ordering, pursuant to a European arrest warrant that the above-named appellant be surrendered to such person duly authorised by the Republic of Poland to receive him.

4 There is only one legal point at issue on this appeal and that is the question of whether the appellant can be said to have "fled" within the meaning of section 10 of the European Arrest Warrant Act, 2003as amended by section 71 of the Criminal Justice (Terrorist Offences) Act, 2005 and as interpreted by this court in Minister for Justice, Equality and Law Reform v. Tobin [2008] 4 I.R. 42.

5 At the risk of oversimplification, the appellant's case is that he received a suspended sentence in Poland in respect of convictions on two offences. The sentences were imposed by a Polish court on the 15 ^th January, 2001 with a sentence of one year and four months but suspended for five years. The appellant alleges that there were no conditions attaching to the suspension, that he was free to leave the country any time he wished and that to the knowledge of the authorities he worked in Germany for three days in the week for a substantial time. On the alleged basis that he wanted to improve himself he emigrated to Ireland in March, 2005. He says that this was a bona fide departure from Poland and that he could not have been characterised as having "fled" within the meaning of section 10. The respondent disputes this argument and claims that the appellant "fled" within the meaning of the section.

6 The context in which this issue arises is that according to the documentation before the Irish courts coming from the judicial authorities of Poland, the appellant was again convicted of an offence in a Polish District Court in November, 2004. It is to be noted that that conviction occurred before the appellant left for Ireland.

7 The appellant denies that he ever committed the offence for which he was convicted in November, 2004 and that he was allegedly tried in absentia. It is perfectly clear from the documentation that under the law of Poland, if a person on a suspended sentence commits a further offence a suspension on an earlier sentence may be lifted. Indeed on one interpretation of the documentation before us the lifting may be mandatory. That being so it is irrelevant and somewhat of a "red herring" whether there were particular express conditions imposed or not. All that matters is that there was a jurisdiction to activate the original sentence into a custodial sentence if there was a conviction on a later offence committed during the period of suspension. It would seem to me that even if a court had the benefit of much less information on this it could, on the facts, draw a reasonable inference that that would be so. It is a perfectly normal procedure in virtually every jurisdiction and a natural consequence of suspension.

8 The appellant denies that he ever committed the later offence and complains that he was tried in absentia. In this connection, the appellant indirectly invokes section 45 of the Act of 2003. That section reads as follows:

9 2 "45.- A person shall not be surrendered under this Act if -

10 (a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant and

11 (b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or

12 (ii) he or she was not permitted to attend the trial in respect of the offence concerned,

13 unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered -

14 (i) be retried for that offence or be given the opportunity of a retrial in respect of that offence,

15 (ii) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and

16 (iii) be permitted to be present when any such retrial takes place."

17 The appellant accepts that that section applies to an offence in respect of which the extradition proceedings relate and not, as in this case, to a subsequent offence which is not the subject of the extradition proceedings but the conviction for which has had the effect of lifting a suspension of earlier sentences. The appellant's argument, however, is that the court should view the contents of section 45 as representing a public policy which should equally be applied when, what I might describe as a sparking off conviction leading to the lifting of a suspension of a previous sentence arises from a trial in absentia. This is an important submission but, in my view, its correctness or otherwise is not relevant to this particular case and I would postpone expressing any opinion on it until such a case arises. As I will be explaining later in this judgment, the facts surrounding the trial leading to the subsequent offence which caused the lifting of the suspension on the earlier offences are not analogous to the facts postulated in section 45. In summary, therefore, the appellant has argued before this court that the alleged later conviction should be ignored both on the basis that he has asserted on affidavit that he did not commit the latter offence and secondly, or alternatively on the basis that no account should be taken of it having regard to an alleged trial in absentia. More importantly, the appellant argues that the later conviction is wholly irrelevant in that he lawfully left Poland for Ireland in circumstances which could not be regarded as fleeing.

18 The main plank of the respondent's case is that this court must recognise the later conviction and must accept that by the law of Poland the suspension of sentences in respect of the earlier offences may as a consequence of the later conviction be lifted by the court and that that did in fact lawfully happen. Furthermore, the respondent refutes the allegation that the trial in respect of the later conviction should be characterised as a trial in absentia. Alternatively, the respondent argues...