The Minister for Justice v Palonka

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 14 July 2020
• Neutral Citation: [2020] IESC 40
• Date: 14 July 2020
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2019:000222 High Court record number 2019 195 EXT [2019] IEHC 803

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT/RESPONDENT

- AND -

SŁAWOMIR WIKTUR PALONKA

APPELLANT/RESPONDENT

[2020] IESC 40

Clarke C.J.

Charleton J.

Baker J.

Supreme Court appeal number: S:AP:IE:2019:000222

[2020] IESC 000

High Court record number 2019 195 EXT

[2019] IEHC 803

AN CHÚIRT UACHTARACH

THE SUPREME COURT

European arrest warrant – Surrender– Request for further information – Further information sought from Polish authorities – Whether case should be reverted to High Court

Facts: By order of Binchy J in the High Court, dated 29 November, a European arrest warrant (EAW) of 29 January 2019 issued by Poland was ordered to be enforced. A prior request in respect of the appellant, Mr Palonka, on another EAW had failed due to legal challenge. Thus, this was the second request, but it was in respect of an earlier offence. The subject of the warrant, the appellant, was remanded in custody by the High Court with consent to bail. Leave to appeal directly to the Supreme Court was sought on 18 December 2019 and by determination was granted on 24 April 2020. The Court identified points of law of general public importance: (1) whether on the facts of this case the issue of the second EAW, seven years after the issue of a warrant in this jurisdiction in relation to a separate offence, and four years after the refusal of surrender in that case, may be seen as an abuse of process, justifying refusal of surrender; and (2) whether surrender may be ordered in respect of the in absentia activation of a suspended sentence if such activation was triggered by an in absentia conviction for which surrender has been refused. Facts which were unclear in the High Court were sought to be clarified in the Supreme Court by way of a request for further information to the Polish authorities. Since the Court cannot ordinarily hear evidence and does not have the responsibility of finding facts, it had been decided to revert the case to the High Court so that further information may be sought. In the extraordinary circumstances of the case, the Court would keep the appeal on the stated grounds but leave the High Court to ask appropriate questions and find relevant facts so that the appeal could then proceed with appropriate clarity.

Held by Charleton J that the Court suggested that the following information should be sought from the Polish authorities but left it open to the parties to seek further information should the High Court be persuaded of the necessity: (1) Was the suspension of the July 1999 sentence of 10 months lifted, and thus became operative, due to the commission of another offence in March 2003? (2) When and why did that happen? (3) There was a hearing for the offence of March 2003. That happened in June 2003 and January 2004. Why were there two hearings? (4) Was the appellant present for either or both hearings? If he was absent, was he served with legal notice of the hearing, and if so, how? Was he represented and if so on the basis of what instructions given to a lawyer representing him? (5) In January 2006, the suspended sentence for the July 1999 offence appears to have been lifted, thus becoming a jail sentence of 10 months instead of a suspended sentence. Was the appellant present for the hearing? If he was absent, was he served with legal notice of the hearing, and if so, how? Was he represented and if so on the basis of what instructions given to a lawyer representing him? (6) In May 2015, the application for surrender of the appellant on the March 2003 offence was refused in Ireland. The Polish authorities then sought surrender on the basis of the July 1999 offence by request dated January 2019 for the July 1999 offence. Why did the authorities in Poland wait until after the failure of the surrender request in respect of the March 2003 offence to seek surrender on the July 1999 offence?

Charleton J held that the Court saw the necessity to seek that information through the High Court but would, nonetheless, retain the appeal. It was emphasised that the High Court should make such additional findings of fact as appeared to that court to be appropriate on the basis of the evidence, including such additional information as may come from the Polish authorities. Insofar as findings may be required, Charleton J held that they should relate to such facts as might reasonably be necessary to enable an assessment to be made of the legal issues, including the possible necessity for a reference to the Court of Justice of the European Union on the imposition of a sentence, or activation of a sentence, in absentia and on the issue of abuse of process.

Case reverted to High Court.

Judgment of Mr Justice Peter Charleton delivered on Tuesday, July 14th 2020

1 By order of Binchy J in the High Court, dated 29 November, a European arrest warrant of 29 January 2019 issued by Poland was ordered to be enforced. A prior request in respect of the appellant on another European arrest warrant had failed due to legal challenge. Thus, this was the second request, but, unusually it is in respect of an earlier offence. The subject of the warrant, the appellant, was remanded in custody by the High Court with consent to bail. Leave to appeal directly to this court was sought on 18 December 2019 and by determination was granted on 24 April 2020. The Court identified these points of law of general public importance:

1. whether on the facts of this case the issue of the second EAW, seven years after the issue of a warrant in this jurisdiction in relation to a separate offence, and four years after the refusal of surrender in that case, may be seen as an abuse of process, justifying refusal of surrender; and

2. whether surrender may be ordered in respect of the in absentia activation of a suspended sentence if such activation was triggered by an in absentia conviction for which surrender has been refused.

2 What has now happened is that facts which were unclear in the High Court are now sought to be clarified in this Court by way of a request for further information to the Polish authorities. Since this court cannot ordinarily hear evidence and does not have the responsibility of finding facts, it has been decided to revert the case to the High Court so that further information may be sought. This should not have happened. But in the extraordinary circumstances of the case, this Court will keep the appeal on the stated grounds but leave the High Court to ask appropriate questions and find relevant facts so that the appeal can then proceed with appropriate clarity. While it is possible for this Court to consider new evidence, it is undesirable that potentially important facts come for the first time to be considered by the court of final appeal, or indeed on any appeal. Further facts may be enquired into since extradition, of which European arrest warrants is a subspecies, is broadly an enquiry. This procedure of the court of its own motion seeking further information is possible under the European Arrest Warrant Act 2003 s 20. This provides:

(1) In proceedings to which this Act applies the High Court may, if of the opinion that the documentation or information provided to it is not sufficient to enable it to perform its functions under this Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify, within such period as it may specify,

(2) The Central Authority in the State may, if of the opinion that the documentation or information provided to it under this Act is not sufficient to enable it or the High Court to perform functions under this Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify, within such period as it may specify.

(3) In proceedings under this Act, evidence as to any matter to which such proceedings relate may be given by affidavit or by a statement in writing that purports to have been sworn—

(a) by the deponent in a place other than the State, and

(b) in the presence of a person duly authorised under the law of the place concerned to attest to the swearing of such a statement by a deponent,

howsoever such a statement is described under the law of that place.

(4) In proceedings referred to in subsection (3), the High Court may, if it considers that the interests of justice so require, direct that oral evidence of the matters described in the affidavit or statement concerned be given, and the court may, for the purpose of receiving oral evidence, adjourn the proceedings to a later date.

3 It may be noted that this applies to the High Court, which is the court for the administration of extradition and pursuant to European arrest warrants. The parties should be aware of the relevant procedure, which also applies to extradition, and seek to ask the High Court to use it where there is some unclarity that might seriously impact on the outcome of the case. It is only because the interests of justice may require the exceptional use of this procedure that it may ever be countenanced.

Background

4 Concerned in the request here is an offence committed in July 1999, all of 21 years ago, one of possession of drugs. Then, the appellant was 18 years old. On 23rd August 2002 there was a sentence hearing on that offence and a 10-month sentence was imposed by the Polish courts for the 1999 offence, but was stayed: “execution was conditionally stayed for the period of three years of trial”. One matter that is unclear, is if that 2002 sentence was revoked on 16th January 2006, because the appellant committed another offence, again possession of drugs, during the three years of the suspension. It appears so, but it is unclear. Further, this 1999 offence is the offence on which extradition is now sought on a European arrest warrant, the second in respect of this appellant. There was another offence, which seems to have...