Minister for Justice & Equality v Lipinski

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 22 May 2017
• Neutral Citation: [2017] IESC 26
• Court: Supreme Court
• Docket Number: [Record No: 66/2016]
• Date: 22 May 2017

[2017] IESC 26

THE SUPREME COURT

Clarke J.

Denham C.J.

O'Donnell Donal J.

Clarke J.

MacMenamin J.

Laffoy J.

Dunne J.

O'Malley Iseult J.

[Record No: 66/2016]

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003

Between/

The Minister for Justice & Equality

Applicant/Respondent

and

Arkadiusz Piotr Lipinski

Respondent/Appellant

European arrest warrant – Surrender – European law – Appellant seeking to appeal against his surrender – Whether, on a proper construction of the relevant legal materials, surrender could be ordered in the particular circumstances

Facts: A sentence imposed by the relevant Polish court, when part-served, was initially suspended but, by a subsequent order, reinstated without notification being effected of the hearing which led to that reinstatement. The issue which arose on this appeal was whether, in all the circumstances, those facts precluded the surrender of the respondent/appellant, Mr. Lipinski, on foot of an otherwise valid European Arrest Warrant. In a judgment delivered on the 17th June, 2015 the High Court (Donnelly J) found in favour of the applicant/respondent, the Minister for Justice and Equality, and ordered the surrender of Mr Lipinski ([2015] IEHC 458). Mr Lipinski appealed from that decision to the Court of Appeal. By a judgment delivered on the 12th May, 2016 by Peart J the appeal was dismissed ([2016] IECA 145). Mr Lipinski applied for and was granted leave to appeal to the Supreme Court by a determination dated the 4th July, 2016 ([2016] IESCDET 96). At the hearing of the appeal it was accepted by counsel on both sides that the issue was whether, on a proper construction of the relevant legal materials, surrender could be ordered in the particular circumstances surrounding various hearings in Poland involving Mr Lipinski.

Held by Clarke J that it did not seem that the material question of the proper interpretation of Article 4a of the Framework Decision is acte clair. The Court, being a court of final appeal, held that there must be a reference of that issue to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union.

Clarke J held that there should be a reference to the Court of Justice of an issue of European law.

Referral to the Court of Justice of the EU.

Judgment of Mr. Justice Clarke delivered the 22nd May, 2017.

1. Introduction

1.1 The net issue which arises on this appeal stems from the fact that a sentence imposed by the relevant Polish court, when part-served, was initially suspended but, by a subsequent order, reinstated without notification being effected of the hearing which led to that reinstatement. The issue is whether, in all the circumstances, those facts preclude the surrender of the respondent/appellant (‘Mr. Lipinski’) on foot of an otherwise valid European Arrest Warrant.

1.2 In a judgment delivered on the 17th June, 2015 the High Court (Donnelly J.) found in favour of the applicant/respondent (‘the Minister’) and ordered the surrender of Mr. Lipinski ( Minister for Justice & Equality v. Lipinski [2015] IEHC 458). Mr. Lipinski appealed from that decision to the Court of Appeal. By a judgment delivered on the 12th May, 2016 by Peart J. (speaking for the Court of Appeal) the appeal was dismissed. See Minister for Justice & Equality v. Lipinski [2016] IECA 145.

1.3 Thereafter Mr. Lipinski applied for and was granted leave to appeal to this Court by a determination dated the 4th July, 2016 ( Minister for Justice & Equality v. Lipinski) [2016] IESCDET 96). As appears from that determination the issues or grounds on which leave to appeal was granted was as follows:

‘(a) That the Court of Appeal erred in deciding that s.45 of the 2003 Act, substituted by s.23 of the 2012 Act, was not engaged where a person, such as the applicant, was present for the hearing concerning his guilt or innocence, and the imposing of his sentence, but was not present for, or notified of, the application to activate the suspended sentence?

(b) In the circumstances set out in para (a), would an order for the surrender of the applicant violate the applicant's rights under Article 38.1 of the Constitution of Ireland; Article 47, 48 and 53 of the Charter of Fundamental Rights & Freedom, and Article 6 ECHR?’

1.4 However, at the hearing of the appeal it was accepted by counsel on both sides that there was, in reality, only one issue being whether, on a proper construction of the relevant legal materials, surrender could be ordered in the particular circumstances surrounding various hearings in Poland involving Mr. Lipinski.

1.5 Against that backdrop it is necessary briefly to outline the facts which were not really in controversy.

2. The Facts

2.1 On the 7th December, 1998 Mr. Lipinski was sentenced to a term of imprisonment of 15 years following his conviction on fifteen charges for offences which appear to broadly correspond to the Irish offence of assault causing harm. Mr. Lipinski was present for that trial and conviction together with the sentencing hearing. The term of fifteen years imposed by the trial court was reduced on appeal to one of ten years. Mr. Lipinski was not physically present for that appeal but was represented and was aware that the appeal was being heard.

2.2 On the 20th September, 2004, the Regional Court in Bydgoszoz V Penal Division made an order for the conditional release of Mr. Lipinski and the suspension for a period of three years of the balance of his sentence which remained then un-served. One of the conditions of that release was that he should remain under the supervision of a probation officer. A second condition related to a requirement to notify any change of address to that probation officer.

2.3 It would appear that Mr. Lipinski failed to comply with those conditions and instead left Poland and came to Ireland in July, 2006. On that basis the matter came before the Regional Court in Warsaw XI Penal Division on the 29th December, 2006 as a result of which an order was made quashing his conditional release or parole. That order had the effect of making him liable to serve the remaining part of his original sentence as reduced on appeal. Mr. Lipinski was not notified of and did not appear at the hearing leading to the quashing of his conditional release. It is against that factual backdrop that the legal issue which this Court has to determine arose.

3. The Legal Issue

3.1 It is necessary briefly to address Council Framework Decision 2002/584/JHA (‘the 2002 Framework Decision’), its amending Framework Decision being Council Framework Decision 2009/299/JHA (‘the 2009 Framework Decision’) together with their Irish implementing measures being s.45 of the European Arrest Warrant Act, 2003 (‘s.45’) together with amendments to s.45 as originally enacted brought about by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012.

3.2 There are some minor differences in the wording of the relevant provisions of the Irish implementing measures, being s.45 in either its original or amended form, as compared with the equivalent provisions of the Framework Decisions (again whether the 2002 Framework Decision or the 2009 amending Framework Decision). Article 4a of the Framework Decision in its current form refers to non-appearance in person at ‘the trial’ whereas s.45 refers to non-appearance ‘at the proceedings’. However, it does not appear to me that any such differences could be material to the proper construction of the legislation as a whole. Having regard to the principle of conforming interpretation it is clear that the Irish implementing measure, being s.45, would require, in any event, to be interpreted in a manner consistent with the Framework Decisions. On that basis the question really turns on the relevant provisions of the current Framework Decision being the 2002 Framework Decision as amended by the 2009 Framework Decision.

3.3 The relevant provision is to be found in Article 4a. It is clear that the Article in question contains what might be described as a substantive provision followed by exceptions. It should also be noted in passing that the measure is not obligatory...