The Minister for Justice and Equality v Dorian Szamota

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 21 July 2021
• Neutral Citation: [2021] IECA 209
• Court: Court of Appeal (Ireland)
• Docket Number: Record No 2020/263

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

Between

The Minister for Justice and Equality

Applicant/Respondent

and

Dorian Szamota

Respondent/Appellant

[2021] IECA 209

Birmingham P

Edwards J

Collins J

Record No 2020/263

THE COURT OF APPEAL

European arrest warrant +IBM- Surrender +IBM- Reference +IBM- Respondent seeking the surrender of the appellant +IBM- Whether the appellant+IBk-s surrender would amount to a breach of his fundamental rights

Facts: The appellant, Mr Szamota, a Polish national, on 29 May 2015, was convicted by the District Court for Wroclow-+AVo-r+APM-dmie+AVs-cie of an offence of carrying out a denial of service attack on a commercial business in Wroclaw accompanied by threats to continue the attack unless a monetary payment was made to him (the First Offence). He was sentenced to one year+IBk-s imprisonment, with the execution of that sentence being conditionally suspended for a probation period of 5 years. On 21 February 2017, the appellant was found guilty by the District Court in Bydgoszcz of an offence of breaking into a caravan and theft of a number of items from it (the Second Offence). He was sentenced to a term of imprisonment of 14 months. The Second Offence was committed within the probationary period applicable to the sentence imposed in respect of the First Offence. As a result, on 16 May 2017, the District Court for Wroclow-+AVo-r+APM-dmie+AVs-cie made an order pursuant to Article 75.1 of the Penal Code for the enforcement of the one year sentence (the Enforcement Decision). On 26 February 2019, the District Court for Wroclow-+AVo-r+APM-dmie+AVs-cie issued a European arrest warrant seeking the surrender of the appellant in respect of the First Offence only. On 30 November 2020, the High Court made an order for his surrender to Poland pursuant to s. 16(1) of the European Arrest Warrant Act 2003. The High Court was asked to allow an appeal to the Court of Appeal pursuant to s. 16(11) of the 2003 Act and it duly certified three questions as raising points of law of exceptional public importance for consideration by the Court. The essential issue was whether, having regard to Article 4a of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States and/or s. 37 of the 2003 Act, the surrender of the appellant ought to be refused in circumstances where the Enforcement Decision was made in absentia and where that the decision was in turn triggered by his in absentia trial and conviction for the Second Offence. According to the appellant, either or both the decision to convict him for the Second Offence and the subsequent Enforcement Decision were decisions within the meaning of Article 4a(1), so that his surrender ought to be refused in the absence of compliance with any of the conditions set out in that paragraph. In the alternative, the appellant said that his surrender in such circumstances would amount to a breach of his fundamental rights and in particular his fair trial rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, thus engaging s. 37 of the 2003 Act. In response, the respondent, the Minister for Justice and Equality, said that the Court of Justice of the European Union (CJEU) case-law, and in particular its decision in Case C-571/17 PPU, Samet Ardic (Ardic), made it clear that the only relevant decision for the purposes of Article 4a of the Framework Decision was that of 29 May 2015. As the appellant was present at the trial resulting in that decision, the Minister said that Article 4a(1) was of no relevance. The Minister said that the evidence fell far short of disclosing a situation where s. 37 could possibly operate to bar the appellant+IBk-s surrender.

Held by Collins J that he did not think that it could be said that Ardic unambiguously foreclosed acceptance of the arguments advanced by the appellant in the circumstances. Given the fundamental importance of the issues, and the need for clarity and certainty as to the extent of the respective obligations of issuing and executing States in that context, it appeared to Collins J to be appropriate to make a reference to the CJEU pursuant to Article 267 TFEU. The Court had the benefit of submissions from the parties as to the form of questions to be referred in the event that the Court concluded that such a reference was appropriate. The Court had regard to those submissions in formulating draft questions.

Collins J held that the appeal would be stayed pending the ruling of the CJEU on those questions.

Referred to CJEU.

No redactions required

JUDGMENT of the Court delivered by Mr Justice Maurice Collins on 21 July 2021

BACKGROUND

1 This appeal raises important questions as to the scope and effect of Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (“ the Framework Decision”) – to which effect is given in Irish law by section 45 of the European Arrest Warrant Act 2003 (as amended) (“ the 2003 Act”) – in light of a number of significant decisions of the Court of Justice of the European Union and in particular the decision of that Court (Fifth Chamber) in Case C-571/17 PPU, Samet Ardic (“ Ardic”). Related and significant issues also arise concerning Article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”), Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (“ the Charter”) and their interaction with section 37 of the 2003 Act.

2 There is only very limited dispute about the relevant facts and they can be stated shortly. The narrative that follows is taken from the European arrest warrant (EAW) dated 26 February 2019 (“ the Warrant”), the further information provided by the Issuing Judicial Authority (“ the IJA”), the Affidavits sworn by the Appellant and the judgment of the High Court Judge (Binchy J).

3 On 29 May 2015, the Appellant, who is a Polish national, was convicted by the District Court for Wroclow-Śródmieście 1 of an offence of carrying out a denial of service attack on a commercial business in Wroclaw accompanied by threats to continue the attack unless a monetary payment was made to him. I will refer to this offence, which was committed in January 2015, as the “ First Offence”.

4 The Appellant's conduct was in breach of a number of provisions of the Polish Penal Code which are set out in the Warrant. The Penal Code provides that, in such circumstances, the court sentences for one crime on the basis of all applicable concurrent articles. The Appellant was sentenced to one year's imprisonment, with the execution of that sentence being conditionally suspended for a probation period of 5 years.

5 The Appellant was notified of these proceedings and he was present in the District Court. He did not appeal against his conviction or sentence.

6 On 21 February 2017, following hearings on 8 and 21 February, the Appellant was found guilty by the District Court in Bydgoszcz of an offence of breaking into a caravan and theft of a number of items from it. That offence was alleged to have taken place in October 2016. He was sentenced to a term of imprisonment of 14 months for this offence, to which I shall refer as “ the Second Offence”

7 The Appellant says that he was unaware of the proceedings for the Second Offence and consequently did not have an opportunity to attend the hearings in February 2017 or instruct legal counsel to represent him in his defence. While there is some dispute as to the Appellant's precise state of knowledge regarding the proceedings which led to his conviction and sentence (to which I shall refer in more detail below), there appears to no dispute that the Appellant was not actually aware of the hearings in February 2017 or that he did not appear at that hearing either in person or by a legal representative.

8 The Second Offence was committed within the probationary period applicable to the sentence imposed in respect of the First Offence in May 2015. As a result, on 16 May 2017, the District Court for Wroclow-Śródmieście made an order pursuant to Article 75.1 of the Penal Code for the enforcement of the one year sentence. 2 Again, there is no dispute that the Appellant did not know of these further proceedings before the District Court for Wroclow-Śródmieście and he did not appear either personally or by his legal representative at the hearing on 16 May 2017. For the sake of clarity, I shall refer to these proceedings as the “ Enforcement Proceedings” and the decision of the the District Court for Wroclow-Śródmieście made on 16 May 2017 as the “ Enforcement Decision”.

9 The Appellant had been living in Ireland prior to 2014, when he went back to Poland. He returned to Ireland sometime in 2016 and has been living here since then.

10 On 26 February 2019, the District Court for Wroclow-Śródmieście issued the Warrant. It seeks the surrender of the Appellant in respect of the First Offence only. Surrender has not been sought in respect of the Second Offence, a fact on which the Appellant places a good deal of emphasis.

11 The EAW was endorsed by the High Court on 1 July 2019 and the Appellant was arrested and brought before that Court on 23 October 2019. He was subsequently admitted to bail and remains on bail. In due course, the application for surrender was heard and the High Court (Binchy J) gave a detailed judgment on 16 November 2020 setting out its reasons for concluding that the Appellant should be surrendered. On 30 November 2020 the High Court made an order for his surrender to Poland pursuant to section 16(1) of the 2003 Act.

12 The High Court was asked to allow an appeal to this Court pursuant to section 16(11) of ...