Minister for Justice v Szlachikowski
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stack |
| Judgment Date | 24 May 2023 |
| Neutral Citation | [2023] IEHC 294 |
| Court | High Court |
| Docket Number | [2021 No. 202 EXT] |
[2023] IEHC 294
[2021 No. 202 EXT]
THE HIGH COURT
JUDGMENT of Ms. Justice Stack delivered on 24 May, 2023 .
. This is a Request pursuant to Article 27.4 of Council Framework Decision of 13 June, 2002 on the European Arrest Warrant and the surrender procedures between member states (“the Framework Decision”), implemented in Irish law by s. 22 (7) of the European Arrest Warrant Act, 2003, as amended, for the consent of this court to proceedings being brought against the respondent for the purpose of executing two sentences of imprisonment which were imposed on him in Poland in 2009.
. The two sentences in question are judgements of the District Court in Sosnowiec, Poland of 21 January, 2009 (File reference XI K 596/08) and 20 November, 2009 (File reference XI K 21/09), which imposed sentences of six months and one year, respectively.
. The respondent has already consented to his surrender to Poland in respect of 77 fraud offences and that surrender took place on 27 October, 2021.
. The respondent originally objected on four bases to the granting of consent to the enforcement of these two sentences: first, that the matters to which the request relates did not correspond to offences in this jurisdiction, secondly, that compliance with s. 45 of the Act could not be shown, and thirdly that the delay involved in seeking surrender to serve sentences imposed in 2009 was such as to amount to an abuse of process. The fourth objection was based on the issue of law which was rejected by the Supreme Court in Minister for Justice v. Kairys [2022] IESC 531, in a judgment delivered on 22 December, 2022, and therefore after the initial hearing of the application for consent.
. In an ex tempore judgment delivered on 27 January, 2023, I indicated that I was satisfied that correspondence could be shown, that there was no evidence of abuse of process and, of course, that the Kairys point had been rejected by the Supreme Court. However, I sought further information pursuant to s. 20 of the Act for the purposes of considering compliance with s. 45 of the Act.
. As already stated in my ex tempore judgment, the Article 27 Request is in a form similar to the prescribed form of a European Arrest Warrant as originally set out in the Annex to the Framework Decision, but with some differences, most significantly omitting point (d) of the prescribed form of European Arrest Warrant which deals with decisions rendered in absentia.
. While it is not necessary that a request pursuant to Article 27.4 be in any particular form ( Minister for Justice v. Fassih [2021] IECA 159), in circumstances where the issuing judicial authority chose to draft the Request more or less in the form prescribed in the Annex to the Framework Decision for European Arrest Warrants, the removal of point (d) of that form was a significant omission. The substance of what must be considered on an application of this kind is not materially different from the matters which must be considered on an application for surrender.
. It follows perhaps as a matter of logic and common sense that if a court would not have approved surrender in respect of particular offences, then neither would it grant consent to the subsequent prosecution or enforcement of a sentence imposed for those offences. Otherwise, the safeguards in the Framework Decision could easily be evaded by the simple expedient of withholding any reference in the European Arrest Warrant to those further criminal proceedings, and then simply prosecuting for that offence or requiring the service of a sentence for such an offence after the surrender had taken place.
. Article 27.4 of the Framework Decision makes this clear. It provides:
“A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. …. For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.” [Emphasis added.]
. As initially adopted, Article 5 of the Framework Decision required the giving of give additional guarantees in three circumstances, one of which related to situations of the imposition of sentences after trials in absentia. The guarantees required in the event of a decision rendered in absentia were set out in Article 5.1. However, Article 5.1 was removed by Council Framework Decision, 2009/JHA of 26 February, 2009, (“the 2009 Framework Decision”) and was replaced by a new Article 4a.
. Article 27.4 must therefore now be read as referring to Article 4a, as well as Articles 3, 4 and the remaining provisions of Article 5. In other words, consent pursuant to Article 27.4 may be refused in the case of a decision rendered in absentia unless the information required by Article 4a is given. Any other reading of the Framework Decision would be inconsistent with its purposes which are, not only to provide for a mutual system of surrender but that such a system should be operated in conformity with the right of an accused to a fair trial: see recitals (1), (9) and (15) to the 2009 Framework Decision.
. In addition to deleting Article 5.1 and replacing it with Article 4a, the 2009 Framework Decision also amended the Annex to the Framework Decision so as to replace the old point (d), which provided for the guarantees to be given where the decision on which the Warrant was based was one which had been made in absentia, with a much more elaborate Table. This Table was designed to oblige issuing judicial authorities to indicate which of the circumstances identified by Article 4a was relied upon for the purpose of enforcing a decision rendered in absentia and the basis on which it was claimed such circumstances existed.
. In this case, there was nothing on the face of the Request which gave any hint that the two sentences in respect of which it issued had been imposed after a trial in absentia. It is of course the case that there is no prescribed form for a request pursuant to Article 27.4 and, in particular, it need not be in the form prescribed in the Annex to the Framework Decision for European Arrest Warrants. However, having chosen to use that form, a conscious decision to remove point (d) of that form was, in the circumstances of this case where both of the relevant decisions were rendered in absentia, inappropriate.
. By letter dated 6 October, 2022, the Minister, on behalf of this court, asked the issuing judicial authority to complete a Table in the form set out at point (d) of the prescribed form European Arrest Warrant.
. The information received in response to that request was not, as had been requested, in the form of the Table at point (d) of the prescribed form European Arrest Warrant. This does not, in itself, pose a difficulty. As already stated, no prescribed form applies to a request and the matter must be considered from the point of view of substance, not form. But neither, might I add, was there anything improper in the request sent by the Minister: in fact, the Table attached to point (d) of the Warrant provides a convenient method of eliciting the information which would be necessary to permit this Court to review the Request in accordance with the requirements of Article 4a of the Framework Decision.
. The information sought in the Table at point (d) of a European Arrest Warrant is designed to ensure that the executing judicial authority can be satisfied that the recognition of the decision made in the course of the criminal proceedings conducted in the issuing respect the fundamental rights of a person who has been convicted in absentia. While those rights are protected as a matter of Union law by Article 5 of the Charter of Fundamental Rights, that provision is of course based on Article 6 of the European Convention on Human Rights which guarantees the right to a fair trial and on which there is extensive jurisprudence of the European Court of Human Rights.
. The question of what information is required before surrender will be ordered in respect of a decision rendered in absentia was considered in Minister for Justice v. Palonka [2015] IECA 69, where it was submitted that it was not fatal to an application for surrender under s. 16 that para. 4 of the Table in point (d) of the European Arrest Warrant had not been completed. In that case, the box had been ticked to invoke the condition at para. 3.2, but no factual information to demonstrate satisfaction with the necessary condition had been given.
. It was held that s. 45 of the 2003 Act explicitly required the giving of information within the meaning of paragraph 4 of point (d) in the standard form European arrest Warrant whenever paragraph 3.1b, 3. 2 or 3.3 of point (d) was relied upon, and surrender was therefore prohibited by Part 3 of the Warrant and had to be refused.
. In my view, the same requirement applies to a request for consent pursuant to Article 27.4. Where the request is based on a decision rendered in...
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