Minister for Justice v Gelo
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 19 June 2023 |
| Neutral Citation | [2023] IEHC 357 |
| Court | High Court |
| Docket Number | [2022 No. 31 EXT] |
In the Matter of an Application Under S. 16 of the European Arrest Warrant Act 2003, as Amended.
[2023] IEHC 357
[2022 No. 31 EXT]
THE HIGH COURT
AN ARD-CHÚIRT
JUDGMENT of Mr Justice David Keane delivered on the 19th June 2023
The Minister for Justice (‘the Minister’) applies under s. 16(2) of the European Arrest Warrant Act 2003, as amended (‘the Act of 2003’), for an order directing the surrender of Marcin Miroslaw Gelo to the Republic of Poland, pursuant to a European Arrest Warrant (‘the EAW’) issued by the District Court in Krakow, as the issuing judicial authority in that Member State, on 4 July 2018.
The EAW seeks the surrender of Mr Gelo to serve the sentence of three years imprisonment (less credit for 569 days of that sentence already served) imposed upon him the District Court in Krakow on 6 August 2009 and affirmed by the Appellate Court in Krakow on 15 December 2009 for an offence of robbery and an offence of armed robbery, that are the subject of case file III K 278/08. The EAW recites that one year, five months and ten days of that sentence remain to be served.
Shortly summarised, the particulars of the offence of robbery provided are that, on various unknown dates during the period between May and September 2007, Mr Gelo forced an identified minor victim to give him a sum of money, a mobile phone and a watch by assaulting and threatening to kill that person. The particulars of the offence of armed robbery provided are that, on 16 September 2007, Mr Gelo robbed the same identified minor victim of a sum of money by putting a knife to his chest.
Mr Gelo was arrested on 11 February 2022 on foot of an alert (‘the SIS II alert’) issued under the second generation of the Schengen Information System, established by Council Decision 2007/533/JHA (‘the SIS II Decision’), and was brought before the High Court where, having heard the evidence of Detective Garda Eoin Kane, the Court (in the person of Biggs J) was satisfied in accordance with the relevant requirement under s. 14(3)(b) of the Act of 2003 that the person before it was the person named in the SIS II alert. The EAW was provided to the High Court when Mr Gelo was brought before it again on 24 February 2022. I am satisfied that the person before the court is the person in respect of whom the EAW was issued. Mr Gelo raises no issue in that regard.
By letters dated 2 March, 22 and 26 April 2022, the High Court requested the issuing judicial authority to provide it with certain specified additional information. The issuing judicial authority provided responses to those requests by letters dated 3 March, 17 May and 2 June 2022.
The points of objection originally delivered on Mr Gelo's behalf, pursuant to Order 98, rule 5 of the Rules of the Superior Courts (‘RSC’), were undated – or at least those provided to the Court for the purpose of the hearing were. Mr Gelo's solicitor swore an affidavit on 22 April 2022, exhibiting certain material in support of them. Mr Gelo's written legal submissions on those points of objection were delivered on 22 April 2022. Mr Gelo himself swore an affidavit on 25 April 2022. Supplemental points of objection were delivered on his behalf on the same date. The Minister's written legal submissions in support of the application were delivered on 27 April 2022. Mr Gelo swore a supplemental affidavit on 24 June 2022. The Minister delivered supplemental legal submissions on 14 October 2022 in response to Mr Gelo's objection that his surrender is prohibited under s. 45 of the Act of 2003.
While Mr Gelo puts the Minister on strict proof of the matters that it is necessary to establish under s. 16(2) of the Act of 2003 and while a wide range of objections to surrender are raised in his original and supplemental points of objection, at the hearing of the application before me on the 27 March 2023, counsel expressly abandoned all but two of them.
The two specific objections upon which Mr Gelo continues to rely are the following.
First, Mr Gelo submits that his surrender must be refused under s. 45 of the Act of 2003 because he was not present in person at the hearing that resulted in the affirmation of his conviction and sentence by the Appellate Court in Krakow on 15 December 2009 and none of the matters required in the alternative under point 3 of paragraph (d) of the form of warrant in the Annex to Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (Council Framework Decision 2002/584/JHA), as amended by Council Framework Decision 2009/2999/JHA (‘the EAW Framework Decision’), was invoked by the issuing judicial authority on the face of the EAW or is applicable on the evidence before the court (‘the trial in absentia objection’). This objection is set out at paragraph 2 of Mr Gelo's supplemental points of objection.
Second, Mr Gelo submits that his surrender is prohibited under s. 37 of the Act of 2003 as a disproportionate interference with his right to respect for his private and family life under Article 8 of the European Convention on Human Rights (‘the ECHR’) and Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (‘the family life objection’). This objection appears to have been pursued under paragraph 5 of Mr Gelo's original points of objection, which contained the umbrella plea that his surrender may be prohibited under s. 37 of the Act of 2003 on ‘such further grounds as may arise on receipt of further documentation.’ While that seems a doubtful proposition, the Minister did not take any point on the issue.
I will deal with each of those arguments in turn.
Section 45 of the Act of 2003 stipulates that a person shall not be surrendered under the Act if he or she did not appear in person at the proceedings resulting in the sentence unless the warrant confirms the existence of at least one of the matters required by points 2, 3, and 4 of paragraph (d) of the standard form of European arrest warrant set out in the Annex to the EAW Framework Decision, as amended.
Those matters set out at point 3 of paragraph (d) of the standard form of European arrest warrant that are relevant to this case are the following:
‘3.1a. the person was summoned in person on … (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial;
OR
3.1b the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled, and was informed that a decision may be handed down if he or she does not appear for the trial;
OR
3.2 being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial….’
Article 4a(1)(a) and (b) of the EAW Framework Decision identify broadly the same circumstances as among those in which the executing judicial authority may not refuse to execute a European arrest warrant where a custodial sentence was imposed on a requested person who did not appear at trial.
In its judgment of 10 August 2017, Tupikas, (C-270/17 PPU, EU:C:2017:628), the Court of Justice ruled:
‘Where the issuing Member State has provided for a criminal procedure involving several degrees of jurisdiction which may thus give rise to successive judicial decisions, at least one of which has been handed down in absentia, the concept of ‘trial resulting in the decisions’, within the meaning of Article 4a(1) of Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as relating only to the instance at the end of which the decision is handed down which finally rules on the guilt of the person concerned and imposes a penalty on him, such as a custodial sentence, following a re-examination, in fact and in law, of the merits of the case.’
In the material part of the affidavit that he swore on 25 April 2022, Mr Gelo tersely avers:
‘I was not notified or otherwise aware of the appeal hearing which took place in 2009…. I had no idea an appeal was being pursued and I was not aware of the date of the in absentia appeal hearing. I did not mandate a lawyer to pursue an appeal. I have served the index sentence which resulted from the relevant Court of Appeal orders. I believe that I have always provided my mother's address for the delivery of court summonses and other similar important documents. My mother, Ms Miroslava Gelo, has a permanent address at Krakow-Now Huta, Os. Drzy (sic) Arce 22/68, 31845, Poland. I say and believe that my mother did not receive any relevant summonses at her home address.’
At paragraph D of the EAW in this case, the issuing judicial authority ticked the box at point 1 of paragraph (d), confirming that Mr Gelo appeared in person at the trial resulting in the decision.
On 2 March 2022, the Court requested the issuing judicial authority to confirm that Mr Gelo appeared in person at both the trial at first instance in the District Court in Krakow in August 2009 and in the Appellate Court in Krakow in December 2009.
The following day, the issuing judicial authority provided the following extensive additional information in response:
‘A criminal complaint was lodged by the underage victims (sic) on 10 September 2007. Already at the stage of investigation the requested person fled from law enforcement for over a year,...
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