The Minister for Justice & Equality v Szamota

JudgeMr Justice Maurice Collins
Judgment Date09 June 2023
Neutral Citation[2023] IECA 143
CourtCourt of Appeal (Ireland)
Docket NumberRecord No 2020/263

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

The Minister for Justice and Equality
Dorian Szamota

[2023] IECA 143

Birmingham P

Collins J

Edwards J

Record No 2020/263


No redaction required

JUDGMENT of Mr Justice Maurice Collins delivered on 9 June 2023

(Reasons for the Order made by the Court on 24 May 2023)

The relevant factual background is set out in detail in my earlier judgment in this appeal, given on 21 July 2021 ( [2021] IECA 209). Briefly, Poland seeks the surrender of Mr Szamota, a Polish national, for an offence of carrying out a denial of service attack on a commercial business accompanied by threats to continue the attack unless a monetary payment was made to him (referred to in this judgment as the “ First Offence”). Mr Szamota was sentenced to one year's imprisonment for that offence, with execution of that sentence being conditionally suspended for a probation period of 5 years.


Subsequently, Mr Szamota was convicted in absentia 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 for that offence. Mr Szamota says that he was unaware of the proceedings for the Second Offence and consequently did not have an opportunity to attend the hearings or instruct legal counsel to represent him in his defence.


The Second Offence was committed within the probation period in respect of the First Offence and, as a result, on 16 May 2017 the District Court for Wroclow-Sródmiescie made an order pursuant to the Polish Code for the enforcement of that sentence. It is for the purpose of serving that sentence (the sentence of 14 months imprisonment imposed for the First Offence) that Mr Szamota's surrender is sought.


Mr Szamota argued that the trial for the Second Offence and/or the subsequent proceedings leading to the enforcement of the suspended sentence for the First Offence constituted or were a part of the “ trial resulting in the decision” for the purposes of Article 4a of Council Framework Decision 2002/584/JHA (“ the Framework Decision”) and contended that none of the conditions set out in Article 4a(1) were satisfied, so that his surrender should be refused. The Minister argued that such an objection to surrender was effectively foreclosed by the decision of the CJEU in Samet Ardic Case C-571 PPU, EU:C:2017:1026.


The Minister's position prevailed before the High Court (Binchy J) but the High Court nonetheless granted leave to appeal to this Court. For the reasons set out in my earlier judgment, the Court had doubts as to the correct resolution of the issue and accordingly referred a number of questions to the CJEU pursuant to Article 267 TFEU. The Court also decided to refer substantially similar questions in Minister for Justice and Equality v Siklosi [2021] IECA 210 and both references were dealt with together by the CJEU. The Court also gives a further judgment in Siklosi today.


The references were heard by the CJEU (Fourth Chamber) on 13 July 2022. The Opinion of Advocate General Capeta was delivered on 27 October 2022 and the CJEU gave its judgment on 23 March 2023 (Joined Cases C-514/21 and C-515/21, sub nom LU (Case 514/21) & PH (Case C-515/21) EU:C:2023:235). The CJEU answered this Court's questions as follows:

“1. 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, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that where the suspension of a custodial sentence is revoked, on account of a new criminal conviction, and a European arrest warrant, for the purpose of serving that sentence, is issued, that criminal conviction, handed down in absentia, constitutes a ‘decision’ within the meaning of that provision. That is not the case for the decision revoking the suspension of that sentence.

2. Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as authorising the executing judicial authority to refuse to surrender the requested person to the issuing Member State where it is apparent that the proceedings resulting in a second criminal conviction of that person, which was decisive for the issue of the European arrest warrant, took place in absentia, unless the European arrest warrant contains, in respect of those proceedings, one of the statements referred to in subparagraphs (a) to (d) of that provision.

3. Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the executing judicial authority from refusing to surrender the requested person to the issuing Member State, on the ground that the proceedings resulting in the revocation of the suspension of the custodial sentence for the execution of which the European arrest warrant was issued took place in absentia, or from making the surrender of that person subject to a guarantee that he or she will be entitled, in that Member State, to a retrial or to an appeal allowing for the re-examination of such a revocation decision or of the second criminal conviction which was handed down against that person in absentia and which proves decisive for the issue of that warrant.” (my emphasis in all cases)


As already noted, the High Court had taken the view that it followed from Ardic that Mr Szamota's subsequent criminal conviction for the Second Offence, which triggered the activation of the suspended sentence imposed on him following his conviction for the First Offence, did not constitute or form part of the “ the trial resulting in the decision” for the purposes of Article 4a: [2020] IEHC 606. It is now apparent from the CJEU's decision in LU & PH that that view was in error.


In light of the judgment of the CJEU, the Court gave the parties an opportunity to make observations on the appropriate resolution of the appeal. Both parties lodged helpful written observations. Having considered those observations, the Court took the view that a further hearing would be of assistance and that hearing took place on 24 May 2023 when counsel for both parties made further oral submissions.


In his written observations, Mr Szamota argued that, as regards the Second Offence, neither the European Arrest Warrant here (“ the Warrant”) nor the further information provided at the request of the High Court demonstrated compliance with any of the conditions in Article 4a(1)(a) – (d) of the Framework Decision. He drew attention to para 71 of my earlier judgment in which I stated that, for the purposes of the appeal, the Court was entitled to reach a provisional view that the trial and conviction in absentia for the Second Offence was not in compliance with Article 6 ECHR and where I also expressed the view that the Court was entitled to proceed on the basis of a provisional view that, if the trial of Mr Szamota for the Second Offence and/or the subsequent hearing which led to the Enforcement Decision was properly to be regarded as “ the trial resulting in the decision” (or a part of such trial) the requirements of Article 4a/section 45 would not be satisfied. 1


On the material before us (so it was said) it was not possible for the Court to satisfy itself that his surrender would not breach his rights of defence. Any request for further information would not have the potential to yield any information capable of altering the provisional findings made by the Court. The Court should therefore simply allow the appeal and set aside the order for surrender made by Binchy J in the High Court. In his oral submissions on Mr Szamota's behalf, Mr Munro SC emphasised that EAW proceedings were intended to be dealt with expeditiously. Any further request for information would inevitably involve further delay, in circumstances where a number of requests have already been made and the Polish authorities have had ample opportunity to provide all relevant information in support of their request. Mr Munro also laid stress on the fact that Mr Szamota's surrender had never been sought in respect of the Second Offence which, he suggested, amounted to a tacit acknowledgement that the Polish authorities were not in a position to satisfy Article 4a in relation to it.


The Minister took a rather different view of how the Court should proceed. Her starting point was the fundamental principle – re-iterated once again in LU & PH — that the EAW regime has as its basis the high level of trust which must exist between the Member States and that it follows from the Framework Decision, and in particular Article 1(2), that execution of an European arrest warrant constitutes the rule, whereas refusal to execute is intended to be an exception which must be interpreted strictly ( LU & PH, §§46–47, citing Case C-158/21 Puig Gordi). The Minister noted that the CJEU has made it clear that even where the requirements of Article 4a are not met, it does not necessarily follow that surrender must be refused. Citing LU & PH, §78, the Minister submitted that the executing judicial authority may take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of the defence and thus surrender that person to the issuing Member State, including the conduct of the person concerned, in particular the fact that he or she sought to avoid service of the information addressed to him or her...

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