Minister for Justice Equality and Law Reform v Robert Szall
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 03 June 2015 |
| Neutral Citation | [2015] IEHC 374 |
| Court | High Court |
| Date | 03 June 2015 |
[2015] IEHC 374
THE HIGH COURT
BETWEEN
AND
Crime & Sentencing – Extradition – European Arrest Warrant Act 2003 – Whether fleeing a jurisdiction prior to imposition of sentence covered by S. 10 of the European Arrest Warrant Act 2003
Facts: Following the order of the Supreme Court to whom the case had been certified on the issue of correspondence of offence of not returning to a place of detention with provisions in s. 6 (2) of the Criminal Justice Act 1960, the case now had been remitted to the Court for deciding whether the respondent had fled Poland within the ambit of s. 10 of the European Arrest Warrant Act 2003
Mr. Justice McDermott held that the respondent had fled Poland within the meaning of s. 10 of the European Arrest Warrant Act 2003 and that the surrender of the respondent was in accordance with s. 16 of the said Act. The Court observed that in deciding the issue of a person fleeing a jurisdiction, regards must be had to all the surrounding factors such as subjective motivation of the accused, service of notice and knowledge of the fact that a sentence would likely be imposed in the near future. The Court found that the respondent had committed breach of the Polish criminal system by leaving the country even though he was fully aware of the fact that his sentence was being pronounced and he was adequately served the summons for the same. The Court held that in case there was a conflict of the version of the accused and the judicial authority of a state, the Court must have regard and recognition and inculcate trust in relation to the information supplied by the judicial system of another state.
JUDGMENT of Mr. Justice McDermott delivered on the 3rd day of June, 2015.
1. On the 17 th December, 2009 the High Court endorsed a European Arrest Warrant for the arrest of the respondent which had been received from the Polish authorities and issued by Judge Miroslaw Brzozowski, Provincial Court Judge of the Lublin Provincial Court in respect of file number IV Kop 34/09 on the 27 th April, 2009.
2. The Polish authorities seek the respondent's surrender to serve a sentence of three years imprisonment imposed by the Lublin District Court on the 4 th September, 2008 in respect of six offences set out at para. E2 of the warrant.
3. On the 25 th April, 2011 the respondent was arrested by Garda Matt Lennon and evidence was given in relation to his identification as the person named in the warrant. No issue now arises in respect of that identification. The court is satisfied that the respondent is the same person as the Robert Szall named in the warrant.
4. Following his arrest the respondent was conveyed to the High Court pursuant to s. 13 of the European Arrest Warrant Act 2003 (the 2003 Act). At the s. 13 hearing the court fixed a date for the purpose of s. 16 and the respondent was admitted to bail pending his surrender hearing. This initially proceeded on the 14 th February, 2011.
The Court (Edwards J.) in a judgment delivered on the 17 th February, 2012 declined to make an order under s. 16(1) surrendering the respondent to the issuing state. The Court was not satisfied that the sixth offence nominated in the warrant at para. E2 in respect of which the respondent was convicted of failing to return to a nominated prison without justification following a period of temporary release, corresponded with the offence of being unlawfully at large contrary to s. 6(2) of the Criminal Justice Act 1960. The Court found that because a composite sentence was imposed in respect of all six offences to which the European Arrest Warrant related the non-corresponding offence could not be severed. In those circumstances the court was obliged to refuse the respondent's surrender as requested in the warrant.
5. On the 9 th March, 2012, the learned judge certified that his order of the 17 th February involved two points of law of exceptional public importance in respect of which it was desirable in the public interest that an appeal should be taken to the Supreme Court. These concerned the correspondence of the offence of not returning to a place of detention with the provisions in s. 6(2) of the Criminal Justice Act 1960. The Supreme Court was satisfied that correspondence was established between the two offences [2013] IESC 7 and allowed the applicant's appeal. The court then remitted the case to the High Court for the determination of the remaining issue of whether the applicant had fled Poland within the meaning of s. 10 of the 2003 Act.
6. Section 10 of the 2003 Act as substituted by s. 71 of the Criminal Justice (Terrorist) Offences Act 2005 provides:-
2 "10.-Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-
(a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates,
(b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,
(c) who has been convicted of but not yet sentenced in respect of, an offence to which the European arrest warrant relates, or
(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates and who fled from the issuing state before he or she-
(i) commenced serving that sentence, or
(ii) completed serving that sentence,
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state."
The requirement of "flight" was removed by s. 6 of the Criminal Justice (Miscellaneous) Provisions Act 2009. However, the parties accept that having regard to the history of this case, the provisions of s. 10 must be complied with and the applicant must establish that the respondent "fled" Poland.
7. The first point made by the respondent is that the applicant must establish that flight occurred following the imposition of sentence. Though this was the interpretation adopted by Peart J. in the High Court judgment in The Minister for Justice Equality and Law Reform v. Tobin [2008] 4 LR. 42 (para. 33), the Supreme Court, though not expressing a final opinion on the matter, considered that s. 10(d) might equally apply where the sentence has not been imposed at the time the warrant issued (per Fennelly J. at para. 27).
8. In The Minister for Justice Equality and Law Reform v. Gheorghe (Unreported, Supreme Court, 18 th November 2009) Fennelly J. noted that Peart J. had reconsidered his view that it was necessary for the application of s.10 that the sentences should have been imposed before the proposed extraditee left the applicant country:-
2 "20… It …appear(s) to me …that it suffices for the sentence to have been imposed at the time when the surrender of the person is sought. Section 10 … applies… to a person 'on whom a sentence of imprisonment has been imposed..... and who fled from the issuing state before he or she commenced serving that sentence…' …Nothing in the section requires that the sentence (has) been imposed prior to the person leaving the issuing state. Such an interpretation would not be in accordance either with common sense or with the purpose of the European arrest warrant system. Subparagraph (a) applies where the state 'intends to bring proceedings' against a person; subparagraph (b) applies where the person is 'the subject of proceedings;' subparagraph (c) applies where a person 'has been convicted… but not yet sentenced…' The interpretation advanced by the appellants would leave an obvious and pointless gap."
9. The respondent left Poland prior to the imposition of sentence. However, s. 10(d) does not require the sentence to be imposed before he left the country if he is to be surrendered. It would also appear that the respondent was a person to whom subsection (c) applied as a person who had been convicted but not yet sentenced by the Lublin Court. This point fails.
10. The court must also consider whether in fact and in law the respondent "fled" Poland within the meaning of s. 10. The court must be satisfied that the requirements of the 2003 Act (as amended) and where specified, the Framework Decision, have been complied with but if the court is so satisfied it is bound to make the order for surrender.
11. The evidence before the court consisted of an affidavit of Garda Matt Lennon, and affidavits of the respondent sworn on the 1 st June 2011, the 3 rd November 2014 and 30 th April 2015. Further information from the Circuit Court Lublin was received by the applicant on the 13 th November and 4 th December 2009, the 5 th May and 6 th July 2011 and January 2012. The court sought further information from the issuing judicial authority pursuant to s. 20(1) of the Act and received answers to specific questions raised on the 18 th March and 3 rd April 2015.
12. Additional information received pursuant to s. 20( 1) or (2) of the 2003 Act may be taken into account for the purpose of deciding whether an order for surrender should be made. Once the High Court is satisfied that the information communicated emanates from the Judicial Authority of the requesting state it is entitled to rely upon it and to decide what weight to attach to it. The court is entitled to treat that information as prima facie evidence of the facts asserted. In The Minister for Justice Equality and Law Reform v. Piotr Sliczynski [2008] IESC 73, Macken J. described the evidential status of this additional information:-
"In the relationship which may exist between the High Court and/or...
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