The Minister for Justice and Equality v Zielinski

• Jurisdiction: Ireland
• Judge: Coffey J.
• Judgment Date: 17 February 2020
• Neutral Citation: [2020] IEHC 398
• Docket Number: [2018/131 EXT.]
• Court: High Court
• Date: 17 February 2020

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED

BETWEEN:

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

-AND-

ARTUR JERZY ZIELINSKI

RESPONDENT

[2020] IEHC 398

Coffey J.

[2018/131 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking an order for the surrender of the respondent to Poland pursuant to a European arrest warrant – Whether the surrender of the respondent was prohibited by s. 45 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Zielinski, to Poland pursuant to a European Arrest Warrant (EAW) to serve two sentences of imprisonment arising from his conviction for four offences, designated for the purposes of this application as offences I, 11A, 11B and 11C. At issue was whether the surrender of the respondent was prohibited by s. 45 of the European Arrest Warrant Act 2003, as amended and substituted by s. 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012.

Held by Coffey J that, despite having previously nominated two different periods, namely, two years in the EAW and two years less 37 days in the first tranche of Additional Information, the Issuing Judicial Authority (IJA) stated that it sought the surrender of the respondent in respect of offence I to serve a sentence for which full credit of 201 days would be given. It appeared to Coffey J that there was in fact no underlying sentence or detention order which sanctioned or limited the respondent’s deprivation of liberty for the relevant period of one year and 164 days; instead there were two purported sentencing decisions, the earlier of which failed to give any credit for time spent in custody and the latter of which failed to give due credit as required by Polish law. As it appeared to be accepted that both decisions were erroneous, Coffey J would hear counsel as to whether the miscalculation of credit due in the relevant sentence could be cured whether by appropriate assurances and undertakings being furnished by the IJA or otherwise. If the manifest error in the sentence was not amenable to rectification before the court, Coffey J held that surrender would be refused in respect of Offence I. Coffey J was satisfied on the basis of the assertions made and evidence offered in respect of the trial on the 15th of February 2005 that the respondent was aware of the scheduled trial. Coffey J noted that, although requested by point 4 of point (a) of the form of warrant set out in s. 45 of the Act as amended to provide information as to how condition 3.1b had been met, the IJA had not provided any information in support of its certification that the official information received by the respondent unequivocally established that the respondent was informed that a decision might be handed down on the scheduled trial date if he did not appear at his trial. Coffey J noted that, in MJE v Palonka (2015) IECA 69, the Court of Appeal held that the providing of the information sought by point 4, where applicable, is not optional but mandatory and is therefore a ‘matter’ which requires to be stated by s. 45 if surrender is not to be prohibited by s. 16(1)(c) of the Act. Coffey J held that it was for the IJA to engage with the request for such information and to place it before the Court. Absent such information, Coffey J could not be satisfied that the EAW met the entirety of condition 3.1b. Accordingly, Coffey J refused surrender in respect of Offence IIA. Coffey J held that this conclusion was also dispositive of the application insofar as it related to Offences IIB and C which he also refused.

Coffey J refused surrender in respect of Offences IIA, B and C and further refused surrender in respect of Offence I unless he was persuaded and assured that the error in the underlying sentence could be lawfully rectified before the Court whether by way of undertaking or otherwise.

Surrender refused.

EX TEMPORE JUDGMENT of the HIGH COURT ( Coffey J. ) delivered on the 17th day of February 2020

1 This is a part heard matter in which the applicant seeks an order for the surrender of the respondent to Poland pursuant to a European Arrest Warrant (“EAW”) to serve two sentences of imprisonment arising from his conviction for four offences which have been designated for the purposes of this application as offences I,11A, 11B and 11C. At issue at this stage of the hearing of the application is whether the surrender of the respondent is prohibited by s.45 of the European Arrest Warrant Act 2003, as amended and substituted by s.23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition(Amendment) Act 2012.

2 S.16(1)(c) of the Act of 2003 as substituted by s.10 of the Act of 2012 does not permit surrender unless the EAW under scrutiny has indicated the matters required by S. 45 of the Act of 2003 as amended. S.45 of the Act of 2003 as amended prohibits the surrender of a person if he or she did not appear in person at ‘the proceedings resulting in the sentence or detention order’ in respect of which the EAW was issued unless the EAW indicates, where as appropriate, the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by the Council Framework Decision of 2009 which is set out in full in s.45. The form of warrant set out in the section is commonly known as ‘part D’ and is strikingly similar if not the same in substance as Article 4a of the Framework Decision.

3 It is now proposed to look at the relevant sentences or detention orders seriatim.

4 With regard to Offence I, the Issuing Judicial Authority(‘IJA’) contends that s.45 is of no application by reason of the fact that the respondent was present on all the relevant trial dates in 2004 when his guilt was finally determined and on the 4th May, 2004 when sentence was imposed on him. It is not in dispute, however, that the respondent was not present for a further sentence hearing which took place on the 23rd of August, 2005 when a previously suspended portion of the original sentence was activated. At issue therefore is whether the reactivation of the sentence in the absence of the respondent on the latter date so modified the underlying sentence as to become ‘the proceedings resulting in the sentence or detention order’ such that his surrender is prohibited by s.45 of the Act of 2003 as amended.

5 The CJEU in the Tupikas case(C-270/17 PPU, judgment of CJEU,10th of August 2017) ruled that in a case whose proceedings result in more than one decision, the ‘trial resulting in the decision’ within the meaning of the provisions of Article 4a(1) of the Council Framework Decision of 2002 must be interpreted as relating to the decision which finally rules on the guilt of the person concerned and which imposes a penalty on him following a re-examination, in fact and in law, of the merits of the case. On the same day as it gave its ruling in Tupikas, the CJEU further ruled in the case of Zdziaszek (C-271/17 PPU, judgment of CJEU, 10th of August 2017) that the concept of ‘trial resulting in the decision’ comprised not merely the proceedings which finally determined guilt but also any subsequent proceeding in which discretion was exercised to adjust the level of sentence that was initially imposed. In the subsequent case of Ardic (C-571/17 PPU, judgment of CJEU, 22nd December 2017) the CJEU ruled that the word ‘decision’ in Article 4a(1) did not extend to a hearing at which the suspension of a penalty is revoked on the grounds of infringement of the condition or conditions attaching to it provided that the revocation did not change the nature or the level of the sentence initially imposed.

6 At the time of being sentenced on the 4th of May 2004, the respondent had spent a period of 201 days in temporary custody between the 28th of June 2003 and the 23rd of January, 2004, for which he was entitled to credit against any penalty of deprivation of liberty that was imposed on him by virtue of Article 63 of the Criminal Code of Poland. At the original sentence hearing on the 4th of May 2004 the Regional Court of Gdynia sentenced the respondent to deprivation of liberty for two years and imposed a fine in a specified...