The Minister for Justice and Equality v Slawomir Wiktur Palonka

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Mr Justice Peter Charleton
• Judgment Date: 08 February 2022
• Neutral Citation: [2022] IESC 6
• Docket Number: [2022] IESC 000 Supreme Court appeal number: S:AP:IE:2019:000222 High Court Record Number: 2019 195 EXT
• Year: 2022
• Court: Supreme Court

Between

The Minister for Justice and Equality

Applicant/Respondent

and

Slawomir Wiktur Palonka

Respondent/Appellant

[2022] IESC 6

MacMenamin J

Dunne J

Charleton J

Baker J

Hogan J

[2022] IESC 000

[2019] IEHC 803 and [2021] IEHC 840

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

High Court Record Number: 2019 195 EXT

An Chúirt Uachtarach

The Supreme Court

European arrest warrant – Surrender – Delay – Respondent seeking surrender of appellant – Whether Article 8 of the European Convention on Human Rights may result in the refusal of the application for surrender

Facts: The applicant/respondent, the Minister for Justice and Equality, requested the extradition of the respondent/appellant, Mr Palonka, under a European Arrest Warrant for drug importation in Poland. The High Court (Binchy J), on 22 November 2019, made an order returning Mr Palonka to Poland: [2019] IEHC 803. On appeal to the Supreme Court, it was found that there was insufficient information on which the High Court could make that decision: [2020] IESC 40. The application for surrender was reverted to the High Court in order for that court to conduct further fact-finding. On the second High Court hearing, the matter came before Burns J who reached a number of conclusions based on the Polish authorities’ responses to inquiries: 8 July 2021 [2021] IEHC 840. With those findings of fact made, the matter returned on this appeal in order for the Supreme Court to make a final determination. The two questions on which the Court originally granted leave to appeal remained for decision. These were: (1) whether on the facts of this case the issue of a second European Arrest Warrant, seven years after the issue of a warrant in Ireland’s 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 a 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. A third ground was added which had been argued in the context of the unique circumstances of this case, namely: (3) whether, by reason of procedural delay resulting in Mr Palonka establishing family ties in Ireland, Article 8 of the European Convention on Human Rights may result in the refusal of the application for surrender.

Held by Charleton J that this was not a case of potential infringement of fundamental rights. Charleton J held that what was involved was a real, exceptional and oppressive disruption to family life in the most extreme and exceptional of circumstances; of itself, that would not justify a refusal to surrender as delay does not create rights, but delay may enable the growth of circumstances where a new situation has emerged that engages Article 8 of the European Convention in a genuinely exceptional way as set in the context of the individual procedural circumstances of the case. Burns J could not definitively state as to why on the failure of the European Arrest Warrant for the 2003 offence, it was to the 1999 offence, after the exceptional delay described by him, that the authorities looked. While there is no requirement in European law which would support any argument that a requesting state should trawl up and centralise every potential offence for which a person might be requested, it was the answer to that question which the Court saw as central in seeking further information through the High Court. Charleton J held that the absence of information on that crucial matter brought into focus the 23-year delay involved, the long stasis through failing to revert to the earlier 1999 offence, the presence of the person sought in Ireland’s jurisdiction since 2005, the establishment of roots and family life in Ireland, and, while balance was not in issue, this delay underlined the exceptional nature of what had been sought in the context of the cannabis offences.

Charleton J held that surrender would be refused.

Appeal allowed.

Judgment of Mr Justice Peter Charleton delivered on 8 ^th February 2022

1 This request for the extradition of Slawomir Palonka under a European Arrest Warrant for drug importation in Poland has followed a twisting path by reason of complex procedural route. The twists and turns happened both here and in the requesting State. As to procedures in Poland, from this jurisdiction it was not clear as to why a series of activations of suspended sentences, on condition of good behaviour, were made and whether these might have occurred in response to an earlier failure of an extradition request. This judgment marks the second appeal from an order of the High Court returning Mr Palonka to Poland. The first order was made by Binchy J on 22 November 2019; [2019] IEHC 803. On appeal to this Court, [2020] IESC 40, it was found that there was insufficient information on which the High Court could make that decision. The application for surrender was reverted to the High Court in order for that court to conduct further fact-finding. On the second High Court hearing, the matter came before Burns J who reached a number of conclusions based on the Polish authorities' responses to inquiries; 8 July 2021 [2021] IEHC 840. With these findings of fact now made, the matter returns on this appeal in order for this Court to make a final determination. The two questions on which this Court originally granted leave to appeal remain for decision. These are:

• 1. whether on the facts of this case the issue of a second European Arrest Warrant, 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 a refusal of surrender;

• 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; and to that may be added a third ground which has been argued in the context of the unique circumstances of this case, namely

• 3. whether, by reason of procedural delay resulting in Mr Palonka establishing family ties in Ireland, Article 8 of the European Convention on Human Rights may result in the refusal of the application for surrender

Procedural history

2 What follows is an attempt to state a complex procedural history as simply as possible. Mr Palonka was convicted of two offences on two completely separate occasions, separated by some 44 months. Both offences involved the illegal importation of cannabis, the first having been in July 1999, 23 years ago, and the second in March 2003, 19 years ago. In 2002, a Polish sentencing court imposed a ten month sentence in respect of the 1999 offence, but the imprisonment was stayed. Ordinarily, judicial thinking might be assumed to be predicated on giving an offender a chance at reform. Mr Palonka was present for those proceedings. Sentencing for the later 2003 similar offence took place in June of that year and a prison sentence was imposed. In 2004, this was the subject of an appeal. Mr Palonka was not present for this hearing but was represented; though authorisation for this representation is disputed. Mr Palonka has been resident in Ireland since 2005. In 2006, the suspended sentence for the 1999 offence was lifted, suspended for 3 years from the date of imposition, thus becoming a jail sentence of 10 months: “In connection with the fact that Slawomir Wiktor Palonka, in the period of trial, committed another offence”, the Regional Court in Hrubieszów by decision dated 16 January 2006 ruled that the sentence of 10 months' deprivation of liberty was to be executed. Mr Palonka was not present or represented. Notice of the 2006 hearing in respect of the decision to order execution of the previously suspended sentence was sent to a Polish address. Surrender was sought from Ireland to Poland in November 2012 to enforce a sentence of ten months' imprisonment imposed in June 2003, on the later 2003 offence, by the District Court in Nowy Tomyśl. This request succeeded in the High Court but was rejected on appeal to the Court of Appeal on grounds that are not here relevant; [2015] IECA 69. After that happened, surrender on the older 1999 offence was sought by the Polish authorities in January 2019 by a further European Arrest Warrant. That later request forms the subject of this appeal.

3 In the High Court, Binchy J ordered that the EAW on the 1999 offence issued by Poland be enforced. The main issue before the High Court on that occasion were delay and the effect of such a substantial time lag on Mr Palonka's family. Seriousness of offences were asserted to be in the balance here together with delay and family circumstances. Binchy J found that Mr Palonka's family circumstances were not out of the ordinary and that the effects of surrender on himself and his family would be typical of the impact surrender has on any family. Considering the question of proportionality, Binchy J weighed the public interest in surrender against the consequences for Mr Palonka's family and found that surrender was proportionate. On the question of delay, Binchy J held that delay, in and of itself, is not sufficient to refuse surrender. No other factors were present in this case, he held, which justified refusing surrender on grounds of delay. Further, Binchy J found that because the 2006 decision to revoke the suspension of sentence for the 1999 offence did not change the nature or level of the sentence initially imposed upon the appellant, the appellant's surrender would not be contrary to s 45 of the European Arrest Warrant Act 2003. This states that a person “shall not be surrendered under this Act” if:

(a) he or she was not present when he or she was tried for and...