Minister for Justice & Equality v Wade
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kerida Naidoo |
| Judgment Date | 23 June 2023 |
| Neutral Citation | [2023] IEHC 469 |
| Court | High Court |
| Docket Number | [2022 No. 170 EXT.] |
[2023] IEHC 469
[2022 No. 170 EXT.]
THE HIGH COURT
Judgment of Mr. Justice Kerida Naidoo delivered on the 23 rd day of June, 2023 .
By this application, the applicant seeks an order for the surrender of the respondent to The Republic of Portugal pursuant to a European Arrest Warrant dated 25 th August 2022 (“the EAW”). The EAW was issued by a named individual as the Issuing Judicial Authority (“the IJA”). No issue is raised in that regard.
The EAW seeks the surrender of the respondent to enforce a sentence of 2 years and 4 months' imprisonment imposed upon him on 16 th June 2009 that became final on 6 th November 2009, of which the entirety remains to be served.
The IJA has certified that the offences to which the EAW relates are contrary to the following provisions of Portuguese law, namely:
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a. Aggravated theft contrary to Article 204, paragraph 2, sub-paragraph e) with reference to Article 202, sub-paragraph f) II) of the Penal Code.
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b. Petty theft contrary to Article 203 of the Penal Code.
The respondent was arrested on 24 th August 2022, on foot of a Schengen Information System II alert and brought before the High Court on the same day. The EAW was produced to the High Court on 6 th September 2022.
I am satisfied that the person before the court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.
I am satisfied that none of the matters referred to in section 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003, as amended (“the Act of 2003”), arise for consideration in the application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.
In his notice of objection the respondent objects to surrender under section 11(1) of the Act of 2003 on the basis that the warrant is described as a “ European Detention Warrant”.
By letter dated 5 th December 2022, in reply to a request for additional information, the IJA confirmed that the warrant is a European arrest warrant for executing a custodial sentence. The point was not pursued at the hearing. For the avoidance of doubt, based on the totality of the information, I am satisfied that the warrant before me is a European arrest warrant.
In his notice of objection the respondent raised an objection to surrender under section 11(1A)(g) of the Act of 2003 on the basis that the description of the outstanding sentence is one of 2 years and 4 months' imprisonment for two offences. The respondent says it is therefore unclear if it is a composite sentence and there is uncertainty as to whether the minimum gravity requirement has been satisfied in respect of each offence.
I understand the respondent is no longer relying on that point. For the avoidance of doubt, in the additional information the IJA explained that there are two offences which were tried together and therefore one sentence for both was imposed. The respondent was sentenced to 2 years and 2 months' imprisonment in respect of the aggravated theft offence and 6 months' imprisonment in respect of the petty theft offence. A single penalty of 2 years and 4 months' imprisonment was then imposed.
I am satisfied that no issue arises under section 11 of the Act of 2003.
I am satisfied that the minimum gravity requirements of the Act of 2003 have been met in respect of each offence.
I am satisfied that correspondence can be established between the offences referred to in the EAW and offences under the law of the State, namely, theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and/or burglary contrary to section 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
The respondent objects to surrender on the basis that it is prohibited by section 45 of the Act of 2003 because notification of the date and place of trial was served on him at a time when he was a prisoner serving a sentence of imprisonment in Ireland. The respondent was still serving that sentence when the trial took place in Portugal for the offences to which the warrant relates. He says he could not meaningfully have attended the trial.
The judicial decision on which the warrant is based is the decision of 16 th June 2009. On that date the respondent was convicted and sentenced. That decision became final on 6 th November 2009.
At Part D of the warrant, it is indicated that the respondent did not appear in person at the hearing that resulted in the decision which is sought to be enforced. The Issuing Judicial Authority relies on Part D.3.1.b of the EAW to satisfy the requirements of Section 45 of the Act of 2003, which states:
“The person was not notified personally, but received through other means an official information of the date and place for the trial that led to the decision, in a manner that made it unequivocally established that he was aware of the intended trial, and was informed that a decision could be made even if he was not present at the trial.”
The IJA provided additional details at Part D.4.1 which says:
“The person was notified of the day and time of trial on 21.04.2009 at Mountjoy prison by [a named Constable] in person, by way of a rogatory letter sent to the Irish authorities, the defendant was defended by a Court appointed Defender Officious.”
Additional information was provided by letter dated 5 th December 2022. The decision of the court in Portimão of 16 th June 2009 was attached, which includes the following statement:
“ The defendant was not heard due to not being present, having authorised the trial in his absence.”
In the reply of 22 nd December 2022, the IJA says the respondent was served with the verdict on 7 th October 2009, which was not appealed.
It is also apparent from the additional information that the respondent will not have an entitlement to an appeal or retrial in the event he is surrendered.
The applicant swore an affidavit dated 5 th February 2023. In it he avers as follows:
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a. He says he is a prisoner serving a sentence of life imprisonment for murder imposed on 27 th March 2007. He says the murder was committed on 29 th June 2005. He does not say when he left Portugal or whether he was then aware of the circumstances giving rise to the offences to which the warrant relates.
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b. He says he became aware of the Portuguese matters in or around 2022. I understand that to be when he was arrested in relation to the extradition proceedings. He says he was serving a life sentence in Mountjoy prison at that time. He says a police officer gave him a letter but that a number of years passed between that notification and when he was arrested on foot of the EAW. He says he received something in Portuguese and that he never heard anything further. That appears to be a reference to the letter served on him in 2009.
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c. He avers that he did not give instructions to anyone to represent him at the Portuguese trial or have any communication with any Portuguese solicitor or barrister.
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d. He says he would have pleaded not guilty to the offence concerning the camera. I understand that to be the offence of aggravated theft. Implicitly, the respondent appears to be accepting his guilt in respect of the petty theft offence.
At the hearing before me it was accepted that the respondent had received the letter notifying him of the hearing date. No complaint is made that the letter is in the language of the requesting State and that the letter was personally served on him by a Garda, so it was obviously an official document. That being so arrangements could have been made for it to have been translated. Furthermore, the norm for any non-national residing in a requesting State who comes to the attention of the police is that documents served on them will be in the language of that country. Having been served, the respondent did not attempt to engage with the authorities in the requesting State.
The IJA provided a copy of the hearing in Portugal from which it appears that the respondent was found in possession of the items that were the subject of the offences. The contents of his affidavit also suggest that he has some memory of the underlying facts.
Trials in absentia are not prohibited under the EAW regime. However, before ordering surrender, the executing State must be satisfied that the issuing State has fulfilled at least one of a number of preconditions provided for by the Framework Decision and encapsulated by the standard format EAW. In the instant case, the requesting State relies on Part D.3.1.b, that the respondent was notified in person of the day and date of the trial and that a decision could be made even if he was not present at the trial. On the face of the warrant, the requesting State has therefore satisfied one of the preconditions under section 45 the Act of 2003. The respondent was also represented at the hearing by court appointed counsel.
The respondent's argument is to the effect that formal notification is not, in the circumstances, sufficient protection of his fair trial rights because he was in custody when notice was served on him and could not have attended the trial. His submission is therefore that for the requesting State to have proceeded to conduct a trial, convict, and sentence him in his absence amounts to a breach of section 45 of the Act of 2003, or is so fundamentally unfair that surrender should be refused.
In support of his section 45 argument the respondent relies on a number of authorities. Sejdovic v. Italy App No 56581/00 (ECHR, 1 March 2006), Minister for Justice and Equality v. Sipka [2021] IEHC 587, Minister for Justice and Equality v. Torac [2021]...
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