Minister for Justice v Szamota

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 19 April 2024
• Neutral Citation: [2024] IEHC 274
• Court: High Court
• Docket Number: [2019 No. 227 EXT]

In the Matter of An Application Under S. 16 of the European Arrest Warrant Act 2003, As Amended.

Between

The Minister for Justice

Applicant

and

Dorian Szamota

Respondent

[2024] IEHC 274

[2019 No. 227 EXT]

THE HIGH COURT

AN ARD-CHÚIRT

JUDGMENT of Mr Justice David Keane delivered on the 19 April 2024

Introduction

1 The Minister for Justice (‘the Minister’) applies under s. 16(1) of the European Arrest Warrant Act 2003, as amended (‘the 2003 Act’), for an order directing the surrender of Dorian Szamota to the Republic of Poland, pursuant to a European Arrest Warrant (‘the EAW’) issued by the District Court in Wroclaw, as the issuing judicial authority (‘IJA’) in that Member State, on 26 February 2019.

2 The application has already been the subject of a judgment of this Court ( per Binchy J), given on 16 November 2020, directing the surrender of the applicant; Minister for Justice and Equality v Szamota [2020] IEHC 666. However, pursuant to s. 16(11) of the 2003 Act, Binchy J allowed an appeal to the Court of Appeal, which in turn delivered a judgment on 21 July 2021 ( per Collins J, Birmingham P and Edwards J concurring), making a preliminary reference to the Court of Justice of the European Union (‘CJEU’), pursuant to Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’); Minister for Justice and Equality v Szamota [2021] IECA 209. The CJEU delivered its preliminary ruling on 23 March 2023; Joined Cases C-514/21 and C-515/21, sub nom LU (Case 514/21) and PH (Case C-515/21), EU:C:2023:235 ( LU & PH). On considering that ruling, the Court of Appeal gave judgment on the appeal, setting aside the order for surrender and remitting the application to this Court for further consideration in accordance with the terms of that judgment; Minister for Justice and Equality v Szamota [2023] IECA 143.

3 I heard the application on 19 January 2024. The Minister was represented by Ronan Kennedy SC with Joanne Williams BL, instructed by the Office of the Chief State Solicitor. Mr Szamota was represented by Ronan Munro SC with Eoin Lawlor BL, instructed by Damien Rudden, Solicitor. Each side provided concise and helpful written legal submissions, for which I am grateful.

The background

4 The EAW seeks the surrender of Mr Szamota to serve a sentence of one year's imprisonment imposed upon him the District Court for Wroclaw-Sródmiescie on 29 May 2015 for an offence of carrying out a denial-of service (‘DoS’) attack on the host computer servers of a commercial business, accompanied by threats to continue the attack unless he received a monetary payment to desist (referred to in this judgment as the ‘ first offence’). Mr Szamota was sentenced to one year's imprisonment for that offence, with execution of that sentence being conditionally suspended for a probation period of 5 years.

5 On 21 February 2017, Mr Szamota was convicted in absentia by the Regional Court in Bydgoszcz of an offence of breaking into a caravan and stealing a number of items from it (“ the second offence”). He was sentenced to a term of imprisonment of 14 months for that offence.

6 The second offence was committed within the probation period in respect of the first offence and, as a result, on 16 May 2017 the District Court for Wroclow-Sródmiescie made an order pursuant to the Polish Code for the enforcement of the first sentence. It is for the purpose of serving that sentence (the sentence of one year's imprisonment imposed for the first offence) that Mr Szamota's surrender is sought.

The sole remaining issue on the application

7 In circumstances more fully described below, the parties acknowledge that the sole remaining issue on the application is that stated at paragraph 17 of the second judgment of the Court of Appeal in the following terms:

‘[W]hether any of the conditions of [Article 4a(1) of Council Framework Decision 2002/584/JHA (‘ the Framework Decision’)] is satisfied in respect of the second offence or, if not, whether it can be demonstrated that the surrender of Mr Szamota would not entail a breach of his “ rights of the defence” so that it may nonetheless be appropriate to surrender him in accordance with the Warrant.’

8 Indeed, the issue is narrower still because the Minister expressly concedes that none of the conditions of Article 4a (1) is satisfied on any view of the facts of this case. Thus, the sole remaining issue is whether the surrender of Mr Szamota would entail a breach of his ‘ rights of the defence’.

The circumstances of the remittal

9 The EAW was endorsed by the High Court on 1 July 2019. Mr Szamota was arrested and brought before the Court on 23 October 2019.

10 The application first proceeded before Binchy J on 8 November 2019. The Court was satisfied that the person before it was the person in respect of whom the EAW was issued, and Mr Szamota did not, and does not, raise any issue in that regard.

11 Counsel for both sides acknowledged that none of the matters referred to in ss. 21A, 22, 23 and 24 of the 2003 Act are germane to the facts of this case, so that the Mr Szamota's surrender was not, and is not, prohibited for any of the reasons set forth in any of those sections.

12 In the circumstances described at paragraphs 6 to 11 of his judgment, Binchy J was satisfied, as am I, that the criminal acts described in the EAW would, if those acts had been committed in the State on the date of issue of the EAW, constitute any one of four different specified offences under the law of the State. Further, it is common case that a term of imprisonment of not less than 4 months (specifically, 12 months) has been imposed in respect of the offence in the issuing State and that Mr Szamota is now required under the law of the issuing State to serve all or part of that sentence. Thus, Mr Szamota's surrender was not, and is not, prohibited under s. 38 of the 2003 Act.

13 There was one remaining issue on the application. In an affidavit sworn on 6 November 2019, (‘ the first Szamota affidavit’), Mr Szamota tersely averred that he was unaware of the proceedings for the second offence and consequently did not have an opportunity to attend or instruct legal counsel to represent him in his defence. Thus, he submitted, his surrender is prohibited by s. 37 of the 2003 Act, on the ground that it would be a violation of his fair trial rights under Article 6 of the European Convention on Human Rights (‘ the Convention’) and, perhaps also, under Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘ the Charter’). Mr Szamota also averred, without elaboration, that he had come to Ireland approximately 10 years earlier with his family; had returned to Poland in 2014 to live with his girlfriend; had come back to Ireland in 2016; and had not left Ireland since.

14 In accordance with the obligation upon it under s. 20 of the 2003 Act to request the provision of additional information or documentation to enable it to perform it functions under the Act, the High Court requested the IJA to provide it with certain specified additional information, by letters dated 16 December 2019, and 14 and 27 January 2020 (‘ the first, second and third s. 20 requests’). The IJA provided responses dated 27 December 2019, 21 January 2020, and 3 February 2020 (‘ the first, second and third s. 20 responses’). A fourth s. 20 request was made, by letter dated 2 March 2020, and a response provided, by letter dated 6 March 2020 but the information concerned is not relevant to the sole remaining issue I must decide.

15 In material part, those responses included the following information:

• (i) The 5-year probation period for which the penalty of 1 year's imprisonment for the first offence, imposed on 29 May 2015, was suspended ran from the expiration of another sentence of 2 years and 3 months' imprisonment, imposed for another offence on 4 July 2014, that Mr Szamota had served between 11 March 2014 and 7 June 2016.

• (ii) There was a criminal investigation into the second offence, culminating in court proceedings involving hearings on 8 and 21 February 2017. The investigation had concluded with the bringing of an indictment against Mr Szamota (first response).

• (iii) Mr Szamota did not take part in the main court sessions for the second offence when those sessions took place on 8 February and 21 February 2017, although he had been notified of them. During a hearing as part of the preliminary proceedings Mr Szamota was instructed about his obligation to provide the court with his correspondence address, otherwise the court sessions could take place in his absence, and he might be prevented from submitting a complaint or appeal due to the expiry of deadlines. Mr Szamota was not informed about the dates of the court sessions in any other way (second response).

• (iv) Mr Szamota was not instructed directly during the proceedings for the second offence that they could result in the enforcement of the sentence that has been imposed but conditionally suspended in the proceedings for the first offence. However, the judgment in the proceedings for the first offence stated that a breach of the law within the specified probation period, including the commission of a further similar criminal offence, might result in the enforcement of that sentence (third response).

• (v) Mr Szamota failed to collect the summons to his trial, which took place on 8 February 2017. The notification had been sent to the address provided by Mr Szamota as his correspondence address and the court assumed that he had been correctly notified of that court date. Mr Szamota was not sent a notification about the subsequent 21 February 2017 court date.

16 Mr Szamota swore an affidavit on 24 February 2020 (‘ the second Szamota affidavit’). In it, he repeated his averment that he was unaware of the proceedings for the second offence. He then acknowledged for the first time that,...