Minister for Justice v Palonka

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 22 September 2019
• Neutral Citation: [2019] IEHC 803
• Docket Number: [2019 No. 195 EXT]
• Court: High Court
• Date: 22 September 2019

[2019] IEHC 803

THE HIGH COURT

Justice Binchy

[2019 No. 195 EXT]

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

SLAWOMIR WIKTUR PALONKA

RESPONDENT

European arrest warrant – Surrender – Proportionality – Applicant seeking an order for the surrender of the respondent – Whether the surrender of the respondent was proportionate

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Palonka, to Poland pursuant to a European Arrest Warrant dated 29th January, 2019 (the EAW). The EAW was issued by a Judge of the District Court in Zamość. The EAW was endorsed by the High Court on 20th June, 2019. The respondent was arrested and brought before the Court on 31st October, 2019, and this application proceeded on 19th November, 2019. While raising a variety of points, ultimately the case as argued on behalf of the respondent revolved around the question of proportionality of his surrender having regard to all of the factors in the case and in particular: (1) the antiquity of the offences; (2) the relatively minor nature of the offences as reflected in the sentence imposed and the suspension thereof; (3) the lapse in time since the conviction of the respondent; (4) the fact that the suspension of his sentence occurred without notice to him, and appeared to have followed a conviction in absentia for another offence; (5) the unexplained delay in the issue of the EAW, not least having regard to the fact that he was the subject of an earlier EAW, the first EAW, and that surrender for same was refused in 2015; and (6) in the meantime the respondent had “moved on with his life”. He was 18 when he committed the offence referred to in the EAW. He had been living in Ireland since 2005. He had a dependent 8-year-old child and was in employment.

Held by Binchy J that trafficking in drugs at any level is treated seriously, and even if the respondent’s activities were at the lower end of that particular scale, the offences could not be regarded as trivial or such as to diminish the public interest in enforcing the penalty imposed on him for his conviction of those offences, in circumstances where the impact on the respondent and his family was that which typically flows from surrender and detention. Binchy J held that it is well settled that delay in and of itself does not constitute a basis for refusal to surrender. Binchy J noted that it was not in dispute that the decision to revoke the suspension of sentence in this case did not change the nature or the level of the sentence initially imposed upon the respondent; accordingly, the argument that the respondent’s surrender would be contrary to s. 45 of the European Arrest Warrant Act 2003 was rejected.

Binchy J ordered the surrender of the respondent.

Order granted.

JUDGMENT of Mr. Justice Binchy delivered on the 22nd day of November, 2019

1 By this application, the applicant seeks an order for the surrender of the respondent to Poland to a European Arrest Warrant dated 29th January, 2019, (“the EAW”). The EAW was issued by a Judge of the District Court in Zamość.

2 The EAW was endorsed by the High Court on 20th June, 2019. The respondent was arrested and brought before the Court on 31st October, 2019, and this application proceeded on 19th November, 2019.

3 At the opening of this application, I was satisfied that the person before the Court is the person in respect of whom the EAW was issued, and counsel for the respondent confirmed that the identity of the respondent was not in dispute. Counsel for both parties also affirmed that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003 (“the Act of 2003”) arose, and that the surrender of the respondent was not prohibited for any of the reasons set forth in any of those sections. In the interests of clarity however, I should say that in the points of objection filed on behalf of the respondent, it was pleaded that the surrender of the respondent was prohibited by reason of s. 22 of the Act of 2003, specifically by reason of the breach of the rule of speciality, but this objection was not pursued.

4 At para. B of the EAW it is stated that the warrant is based on an enforceable order, specifically a sentence of imprisonment imposed on the respondent by the Regional Court in Hrubieszów of 23rd August, 2002, which became legally valid on 30th August, 2002. Implicitly, this followed the conviction of the respondent of the offences described in the EAW. At para. D of the EAW it is stated that the respondent appeared in person at the trial resulting in the decision.

5 At para. E of the EAW it is stated that it relates to one offence. That is described in the following terms:-

“Slawomir Wiktur Palonka was convicted for committing the following offence: in July 1999 in Hrubieszów, he persuaded Leszek Palonka to bring from abroad, against the law, the intoxicants such as weed of cannabis in unestablished amount, however not lesser than 39.25 grams net.”

The Court was informed during the hearing that Leszek Palonka is the brother of the respondent.

6 Particulars of the provisions of Polish law whereby these actions constitute an offence are briefly provided at para. E.3 of the EAW. It is stated that: “Article 18 § 2 of the penal code in connection with Article 42 section 1 Act of 24.04.1997 on counteracting of drug addiction/Journal of Law no 75 from 1997, position 468/.” At para. E.1 the issuing judicial authority has ticked the box relating to illicit trafficking in narcotic drugs and psychotropic substances. An issue was raised by counsel for the respondent as to whether or not requesting his brother to bring a small quantity of cannabis into Poland could constitute illicit trafficking, but this line of argument was not pursued on the basis that even if it did not, the actions of the respondent as described in the EAW would correspond to an offence in this jurisdiction.

7 At para. C of the EAW, it is stated that the offence attracts a maximum penalty of five years' imprisonment, and that the respondent was sentenced to a term imprisonment of 10 months. Accordingly, minimum gravity is established.

8 At para. F of the EAW it is stated that the sentence imposed on the respondent was conditionally stayed for a period of three years “of trial”. This might imply three years from the date of the trial which was 23rd August, 2002, but it is then followed by a statement that the sentence was legally valid on 30th August, 2022 (which is clearly an error, and should state 2002). It is likely that the stay of execution of the sentence therefore was stayed for a period of three years from the latter date, but nothing of significance turns on this point.

9 Para. F then proceeds to state, in effect, that during the period when the sentence of imprisonment was stayed, the respondent was, on 16th January, 2006, convicted of another offence, giving rise to the execution of the sentence of 10 months. The EAW then goes on to state that the respondent did not voluntarily present himself to serve the sentence, hence a warrant for his arrest issued.

10 At this juncture it is necessary to mention that the respondent was the subject of an earlier arrest warrant dated 6th November, 2012 ( “the first EAW”). That warrant was stated to relate to a judgment of the District Court in Nowy Tomysl of 30th June, 2003, which became final on 29th January, 2004. The respondent was also sentenced to 10 months' imprisonment in connection with that offence, but at the date of the first EAW there was 6 months and 27 days' imprisonment outstanding. The first EAW states that the respondent appeared in person at the trial resulting in the decision. The offence is similar in kind to the offence referred to in the EAW save that on this occasion it is stated that the respondent himself transported into Poland dry leaves of cannabis weighing 101.3 grams.

11 While the High Court ordered the surrender of the respondent pursuant to the first EAW, the Court of Appeal upheld his appeal against that order, on the grounds that the first EAW did not contain the information required by s. 45 of the Act of 2003. The issuing judicial authority had ticked the box corresponding to box D.3.2 of the standard form of EAW, but had failed to provide the additional information required by para. D.4. It is unclear if the conviction of 29th January, 2004, is the same conviction as that referred to in the EAW as giving rise to the revocation of the sentence imposed on the respondent in connection with the offence that is the subject of the EAW, but again I do not believe that anything of significance turns on this point. It was however necessary to record the history of the first EAW in order to understand fully one of the objections raised on behalf of the respondent. I turn now to address those objections.

Objections

12 In his notice of objection dated 14th November, 2019, the respondent objected to his surrender on the following grounds:-

(1) That his surrender is...