Minister for Justice v Zarnescu

• Jurisdiction: Ireland
• Judge: Ms Justice Marie Baker
• Judgment Date: 28 September 2020
• Neutral Citation: [2020] IESC 59
• Court: Supreme Court
• Docket Number: S:AP:IE:2020:000021
• Date: 28 September 2020

In The Matter of The European Arrest Warrant Act 2003 (As Amended) And

In The Matter of Marius Bogdan Zarnescu (DOB: 16 ^th March 1979)

Between/

The Minister for Justice and Equality

Applicant/Appellant

-And-

Marius Bogdan Zarnescu

Respondent

[2020] IESC 59

Clarke C.J.

MacMenamin J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2020:000021

AN CHÚIRT UACHTARACH

THE SUPREME COURT

European arrest warrant – Surrender – Waiver of rights – Appellant seeking the surrender of the respondent to Romania pursuant to a European arrest warrant – Whether non-attendance at a hearing was sufficiently informed to amount to an unequivocal waiver of rights

Facts: The appellant, the Minister for Justice and Equality, appealed to the Supreme Court directly from the High Court under Article 34.5.4° of the Constitution against the order of Binchy J of 22 January 2020 refusing to order the surrender of the respondent, Mr Zarnescu, to Romania pursuant to a European arrest warrant dated 23 January 2018 for the reasons set out in his written judgment of 13 January 2020: [2020] IEHC 6. The appellant argued that as the High Court had found on the facts that the respondent had deliberately absented himself from the rescheduled hearing, surrender would not breach his defence rights, and that there was no basis on which this finding could be reversed. The appellant argued that there can be varying circumstances other than those enumerated in article 4a(1)(a) to (d) and the Table to s. 45 of the European Arrest Warrant Act 2003 which could justify a conclusion on the facts that surrender would not breach the rights of defence of the requested person, and that such circumstances could include cases where he or she had sufficient knowledge of the charges and proceedings and either unequivocally waived a right to attend the trial or displayed a lack of diligence in taking proper measures to receive official notifications about the date and place of trial. The respondent accepted that the approach identified by Donnelly J in Minister for Justice v Skwierczynski [2016] IEHC 802 is correct, and did not advocate a literal approach to s. 45 of the 2003 Act and article 4a of Council Framework Decision 2002/584/JHA on the European Arrest Warrant and the Surrender Procedures Between Member States, O.J. L/190, 18.7.2002. It was argued, on the merits, that the rights of defence of the respondent were breached by reason of the fact that the appeal proceeded in his absence and where there was no unequivocal waiver of his rights. It was argued that failure to follow up on the response to the request for an adjournment could not be an unequivocal waiver of rights.

Held by Baker J that Binchy J was correct that service based on a legal fiction, such as in domestic rules of practice which permit service to be deemed good, is not sufficient to establish actual knowledge which in turn is the foundation of the analysis of whether non-attendance at a hearing was sufficiently informed to amount to an unequivocal waiver.

Baker J held that she would uphold the decision of the trial judge, although she considered that his approach to the legal test applicable to the operation of s. 45 was not correct.

Decision of trial judge upheld.

Judgment of Ms Justice Marie Baker delivered the 28 ^th day of September, 2020

1 The right to a fair trial has a prominent place in a democratic society, and the supporting right to be present at a criminal trial or appeal is deeply entrenched in domestic law and in international instruments.

2 The extradition of a person tried and sentenced in absentia can therefore give rise to a concern whether the fundamental rights of defence of the requested person were adequately protected. The European Court of Justice and national case law have evolved a number of principles to meet the understandable reluctance of a requested state to return a person when doubts exist as to the knowledge of the person of the scheduled date for trial or sentence, and an acceptable balance between respect for the legal order of another Member State and mutual cooperation on the one hand and the rights of the requested person is not always easy to achieve.

The Framework Decisions

3 Council Framework Decision 2002/584/JHA on the European Arrest Warrant and the Surrender Procedures Between Member States, O.J. L/190. 18.7.2002 provides for the prohibition of surrender where there was a trial in absentia save in certain conditions.

4 The Framework Decision, as appears from recital 7, was issued to replace the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957. Recital 10 and article 1.2 point to its basis in mutual recognition and on a high level of confidence between Member States.

5 The Framework Decision was amended by Council Framework Decision 2009/299/JHA O.J. L/81, 27.3.2009 (“the 2009 Framework Decision”). Recital 4 of the 2009 Framework Decision recognises the importance of having clear and common grounds for non-recognition of decisions obtained in absentia and for that purpose provides:

“This Framework Decision is aimed at refining the definition of such common grounds allowing the executing authority to execute the decision despite the absence of the person at the trial, while fully respecting the person's right of defence.”

6 The Framework Decisions leave to the national laws of Member States the forms and methods, including procedural requirements, required to achieve the results specified in this Framework Decision.

7 The 2009 Framework Decision, in the light of the perceived lack of consistency in decisions to return when the requested person did not appear in person at the hearing, inserted article 4a:

“The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

(a) in due time:

(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial,

and

(ii) was informed that a decision may be handed down if he or she does not appear for the trial”. (emphasis added)

8 The article contains a draft EAW, which is repeated in full in the Irish implementing legislation.

9 The balance of the inserted article is not relevant to this judgment.

10 The European Arrest Warrant Act 2003 (“the 2003 Act”) implements the Framework Decisions, as amended by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012. The amended s. 45 minors precisely the language of the 2009 Framework Decision. It is agreed that the slightly different formulation in the main body of s. 45 which uses the phrase “shall not be surrendered” is not materially different from the language in the 2009 Framework Decision that an executing judicial authority “may also refuse to execute” the warrant.

11 The Framework Decisions afford an interpretive basis for the interpretation of national law in accordance with the principles stated by the Court of Justice in Pupino ( Case C-105/03), EU:C:2005:386, such that the purpose of the Framework Decisions is attained and a conforming interpretation achieved. This is apparent from the decisions of this Court in Minister for Justice and Equality v. Tokarsk [2012] IESC 61, and Minister for Justice v. Bailey [2012] IESC 16, [2012] 4 IR 1.

12 This judgment concerns the correct approach to return of a person who has been convicted in absentia when service has not been effected by one of the means expressly envisaged in the saver provisions in the Table to s. 45 of the Act.

13 It is the appeal of the Minister for Justice and Equality directly from the High Court under Article 34.5.4° of the Constitution against the order of Binchy J. of 22 January 2020 refusing to order the surrender of the respondent to Romania pursuant to a European arrest warrant dated 23 January 2018 (“the EAW”) for the reasons set out in his written judgment of 13 January 2020, Minister for Justice and Equality v. Zarnescu [2020] IEHC 6.

14 The appellant is the executing authority for the purposes of the EAW legislation, and Romania is the requesting Member State.

National discretion

15 The Member States enjoy discretion in the implementation of the Framework Decisions in how national legislation balances the principles of judicial cooperation with respect for rights of defence or to a fair trial. Recital 15 of the 2009 Framework Decision provides that the grounds for refusal in article 4a(1) are optional, but that the rights to a fair trial must be respected:

“The grounds for non-recognition are optional. However, the discretion of Member States for transposing these grounds into national law is particularly governed by the right to a fair trial, while taking into account the overall objective of this Framework Decision to enhance the procedural rights of persons and to facilitate judicial cooperation in criminal matters.”

16 Recital 16 indicates that the discretion to refuse return is not unlimited and that if the conditions in article 4a are met, return should not be refused:

“The provisions of this Framework Decision amending other Framework Decisions set conditions under which the recognition and execution of a decision rendered following a trial at which the person concerned did not appear in person should not be refused. These are alternative conditions; when one...