JUDGMENT of Murray C.J. delivered on the 19th day of December 2008
In this matter the appellant, Mr. Sliczynski, appeals against an order of the High Court directing that he be surrendered to the appropriate authorities in Poland for the purpose of serving four terms of imprisonment imposed on him by the Polish Courts in respect of four separate offences.
Thus the surrender of the appellant has been sought not for the purpose of prosecuting him for any offence but for the purpose of requiring him to serve prison sentences previously imposed upon him after conviction for the offences in question.
The Background Facts
Of the four offences in relation to which the appellant’s surrender is sought his conviction on one of them occurred when he was tried in absentia and sentenced.
His first three convictions occurred on 19th January 2004, 30th December 2004 and 24th March 2005. On each occasion of his conviction a suspended sentence was imposed on the appellant. These were respectively – (a) 1 year 10 months imprisonment, (b) 2 years imprisonment, (c) 2 years imprisonment. The suspension of the sentence in each case was subject to certain conditions with which the appellant was bound to comply. These are referred to later in the judgment.
As regards the fourth term of imprisonment for which his surrender is sought, this relates to a conviction on 28th June 2005 when the appellant was tried and convicted in absentia. On that occasion he was sentenced to two years imprisonment. The sentence was not suspended.
Furthermore, as a consequence of that conviction (and the fact that in breach of the conditions of suspension he had, inter alia, absconded and failed to either keep in contact or report to his probation officer) the suspension of the earlier terms of imprisonment which had been imposed was lifted and orders made requiring him to serve those sentences.
Grounds of Appeal
The appellant relies on four grounds of appeal they are:-
(a) The High Court erred in admitting as evidence and relying upon correspondence from the Polish Judicial Authority which were exhibited in Affidavits sworn on behalf of the applicant/respondent on the grounds that the facts contained in the said correspondence constituted inadmissible hearsay evidence.
(b) The High Court, in making an order for the surrender of the appellant pursuant to s. 10 of the Act of 2003 erred in applying the notion of the onus of proof and in particular with regard to the onus imposed on the appellant as a respondent in the application before the High Court.
(c) The High Court erred in finding that the appellant had fled Poland within the meaning of s. 10(d) of the Act of 2003, as amended; and,
(d) The High Court erred in deciding that the Polish Authorities were not obliged to provide an undertaking pursuant to s. 45 of the Act of 2003.
The Admission of Correspondence in Evidence
At the hearing in the High Court the learned High Court Judge relied on two letters that were received from the Requesting Authority, namely the Polish Court and in each case signed by a District Court Judge, which contained information relating to the European Arrest Warrant. The appellants have submitted that the learned trial Judge was incorrect in law in relying on that correspondence because he ought to have excluded it as offending against the rule on hearsay in the absence of direct proof of its contents.
The first of those letters is dated 20th July 2007 which stated, inter alia, that the appellant had no right to leave Poland because he was under the supervision of the Court Probation Officer in relation to the three cases in question and he was required to inform the Probation Officer about any change of residence and in particular about any plan to travel abroad. It was further pointed out in that letter that as a condition of his sentence being suspended the appellant was required to remain in contact with the Probation Officer and remain in his place of residence for the purpose of being supervised by that Officer. It was then pointed out that since the suspension of the penalty of imprisonment was conditional on the appellant complying with the above the implementation of the penalty of imprisonment was ordered in the absence of compliance. In a subsequent letter dated 21st September 2007 the requesting Judicial Authority, the Polish Court, transmitted via the Central Authority, confirmed that the sentences of imprisonment were implemented because the appellant failed to comply with his duties arising from his supervision by the Probation Officer. In particular he failed to contact the Probation Officer and did not provide details of his place of residence. He had a home address but he was not resident there and at no time did the appellant provide an address for the service of documents and his place of actual residence was not known. These letters were exhibited in two separate Affidavits sworn and filed in these proceedings on behalf of the applicant who is the Central Authority for the purposes of the European Arrest Warrant process.
In submitting that the High Court was correct in relying on the foregoing correspondence reliance was placed in large part by Counsel for the respondent on s. 20(1) and (2) of the Act of 2003, as amended, which provide as follows:
In general terms the appellant contends that the Act of 2003, as amended, contains several provisions for the admission of documents without formal proof but there is no provision in the Act which specifies or refers to information in letters of the kind referred to above as being admissible without formal proof. It is then submitted that if the Oireachtas had intended that the High Court could rely on such correspondence when considering an application under the Act it would have expressly made provision for such an exception to the hearsay rule. I will refer to the reasons why I consider that these arguments are not well founded after I have set out the reasons why I consider the learned High Court Judge was correct in admitting them because it is more convenient to deal with the arguments in that way.
“(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 or the issuing State, as may be appropriate, to provide it with such additional documentation or information as it may specify, within such periods 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 or the issuing State, as may be appropriate to provide it with such additional documentation or information as it may specify, within such period as it may specify.”
The Framework Decision
It is well settled that the Act of 2003 as amended falls to be interpreted in the light of the provisions of the Framework Decision (Council Framework Decision of 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA)). As has been noted in several previous decisions of this Court one of the objectives of the process of surrender on foot of the European Arrest Warrant is the introduction of a new simplified system of surrender of sentenced or suspected persons as referred to in Recital 5 of the Decision. That same provision refers to the process as “a system of surrender between Judicial Authorities” and Recital 10 states that “the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States”. As set out in Article 1(1) of the Decision a European Arrest Warrant “is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person …” and as paragraph (2) of that Article says its execution is carried out “on the basis of the principle of mutual recognition”.
Article 7(2) of the Decision makes express reference to “official correspondence” relating to European Arrest Warrants and permits Member States to designate a central authority and make it responsible for the administrative transmission and reception of such correspondence in addition to the European Arrest Warrant itself. The transmission of such official correspondence (and Arrest Warrant) can only mean transmission from the requesting Judicial Authority to the executing Judicial Authority. The respondent Minister is, by virtue of s. 6 of the Act of 2003, designated as the Central Authority of the State.
Article 15 of the Framework Decision, having provided that the executing Judicial Authority shall, in certain circumstances, request that supplementary information be provided then goes on, at paragraph 3 of the Article to make provision for the general supply of information additional to that in the warrant in the following terms: “The issuing Judicial Authority may at any time forward any additional useful information to the executing Judicial Authority”. (Emphasis added).
In the light of the foregoing provisions I think it is correct to state that the Framework Decision in establishing a new and simplified system for the surrender based on mutual trust and recognition of the Judicial Authorities of the Member States means that an executing Judicial Authority may rely on additional information relating to the warrant and its contents provided by an issuing Judicial Authority. The Central Authority may be used to transmit that information from one Judicial Authority to another.
The basic and essential document on foot of which a person’s surrender is sought and obtained is of course the European Arrest Warrant. The form of the European Arrest Warrant is provided for in the Framework Decision and, in turn, in the Act of 2003. The form of the European Arrest Warrant ensures that a considerable amount of information is provided relating in particular to the person whose surrender is sought and the offences in respect of which it is sought. Normally the information contained in the warrant should be sufficient to enable the executing Judicial Authority, in this country the High Court, to arrive at a decision on the application for surrender. I have no doubt that it was foreseen by the drafters of the Framework Decision that even with a carefully designed form of warrant and one which has been properly filled in that, in the ordinary nature of things, in particular cases ambiguities might arise, or some lacunae on points of detail in the information found to exist, particularly when the standard form of arrest warrant falls to be issued by a Judicial Authority in one legal system and executed by a Judicial Authority in another legal system. The use of different languages, and their translation is also another foreseeable risk of such problems. It is clear from the foregoing provisions that the Framework Decision intends that the executing Judicial Authority may both seek and receive further information related to a warrant from the issuing Judicial Authority and take into account that information for the purpose of deciding whether an order for surrender should be made on foot of the warrant. It is important to note that such information emanates from a Judicial Authority one of the characteristics of which is its independence in the exercise of its functions. Given that the simplified system of surrender of which the Framework Decision speaks is based, inter alia, on mutual respect between Judicial Authorities it is quite logical that the Decision would make a provision for one Judicial Authority, the executing one, to rely on information provided to it by the other Judicial Authority, the issuing one. In all events that is what the Decision provides for.
Following the adoption of the Framework Decision there was an obligation on Member States to introduce at national level the necessary legal measures to provide for the system of surrender as envisaged by the Decision for the purpose of achieving its objectives. That is the obligation of every Member State. Section 10 of the Act of 2003 as amended by the Act of 2005 provides that a person in respect of whom a European Arrest Warrant has been issued shall be arrested and surrendered in accordance with the provisions of the Act and the Framework Decision.
In my view s. 20(1) and (2) of the Act of 2003, as amended, are provisions by which the Oireachtas sought to give effect to the system of surrender envisaged by the Framework Decision so as to ensure that information could be furnished by the requesting Judicial Authority to the executing Judicial Authority, the High Court. If further information is transmitted by the requesting Judicial Authority either on its own initiative or following a request it is the function of the Central Authority to transmit it to the Executing Judicial Authority, in this country, the High Court. Section 20 must be interpreted in the light of the objectives of the Framework Decision and its provisions. In my view it specifically gives effect to Article 15(2) and (3) of the Directive. In so providing I am satisfied that the Oireachtas intended, consistent with the obligations of the State pursuant to the Framework Decision, that the High Court would have available to it the information provided by the issuing Judicial Authority and would have full regard to that information, in addition to information provided in the European Arrest Warrant itself, for the purpose of deciding whether a person should be surrendered on foot of a European Arrest Warrant. Moreover to interpret the provisions of the Act otherwise would render them meaningless since if direct evidence had to be given of the information concerned every Judge or member of the issuing Judicial Authority providing information would either have to give evidence personally or swear an Affidavit of matters within their own knowledge. If that were the case the provisions referred to would serve no purpose. Clearly in my view they were intended to ensure that the High Court would have, where required, information from the Judicial Authority concerned in addition to that already contained in the arrest warrant itself.
Before the High Court can receive and take into account such information it must be established that the information communicated emanates from the Judicial Authority of the requesting State. In this case that has been established by the express averments in the Affidavits lodged on behalf of the applicant in the High Court. In any event the source of the information has not been put in issue.
Since the receipt of such information and the entitlement of the High Court to rely on it is permitted by Statute the rule against hearsay relied upon by the appellant does not apply so as to prevent the Court from exercising its functions in that respect.
So far as the status of the information received by the High Court under the foregoing circumstances is concerned it is in the first instance a matter for the High Court to decide what weight it should attach to it. It is entitled to treat the information as prima facie evidence of the facts set out in the further information supplied by the requesting Judicial Authority.
The admission of such information as evidence does not preclude a respondent in such proceedings from calling evidence to the contrary.
Indeed the status of the information communicated by a requesting Judicial Authority in relation to European Arrest Warrants. should be treated in the same way as information contained in the European Arrest Warrant itself, even though the latter, being the actual originating document for setting any such application in train, is admitted without proof by virtue of another section of the Act. As I pointed out in Minister for Justice –v- Altaravicius “Generally speaking extradition arrangements and the like are issued on recipricocity and mutuality. Each country enters into such arrangements on the presumption that the other country will comply with their requirements and apply them in good faith. Those considerations apply equally to the system of surrender to the European Arrest Warrant having regard to the provisions, explicit and implicit, of the Framework Decision.”
Accordingly, until there is some reason to believe to the contrary, it is to be assumed that a statement of facts such as those that appear in the letters sent by the requesting Judicial Authority in this case, is a correct statement of the facts of the case in respect of which surrender is sought.
I have come to the foregoing conclusion notwithstanding the careful submissions of Counsel for the appellant. Counsel for the appellant referred in particular to s.s 3 of s. 20 which provides:
“In proceedings under this Act, evidence 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 a test to the swearing of such a statement by a deponent,
However such a statement is described under the law of that place.”
Subsection 4 of s. 20 goes on to make provision for the High Court to direct that oral evidence of the matters described in an affidavit or statement be given if it considers that the interests of justice so require.
In my view that subsection is simply permissive of the manner in which evidence may be given by a person by means of an affidavit or a sworn statement in writing where that affidavit or statement is sworn outside the State by a person in a place outside the State. That is to say it is a provision which permits foreign affidavits or statements duly sworn by a person in a foreign State to be tendered in evidence. It does not in my view qualify the earlier subsections concerning the transmission of information by an issuing Judicial Authority to the executing Judicial Authority. It applies not just to affidavits or sworn statements tendered by an applicant in such proceedings but also by any tendered by a respondent.
Counsel also submitted that the documents or information that can be admitted without formal proof are clearly identified in s. 12(8) of the Act of 2003 as amended. It was submitted that if the Oireachtas had intended that further information provided by an issuing Judicial Authority could be admitted without further proof it would have expressly so provided in a similar fashion.
The documents for which s. 12(8) makes special provision are:
(a) The European Arrest Warrant;
(b) An Undertaking required under the Act of a Judicial Authority;
(c) A translation of either of the former;
(d) A true copy of either of the former.
(e) Any separate document containing information that should be specified in an Arrest Warrant but which is not specified in it because it is not practical to do so.
There are essentially two matters which the s. 12(8) permits to be received in evidence without further proof. These are the European Arrest Warrant itself and an Undertaking which is required to be provided under this Act. Its other provisions relate to translations or copies of those documents. In addition it refers to a document referred to in s. 11(2A) (inserted by s. 72(b)) of the Criminal Justice (Terrorist Offences) Act 2005. Such a document is also really part of or an adjunct to the European Arrest Warrant. Section 11(2A) provides that where it is not practical to provide in the Warrant itself a certain matter which the Act specifies should be contained in the Warrant it may be specified in a separate document. Such a document is really part of or an adjunct to the European Arrest Warrant itself. The two kinds of documents referred to, the Arrest Warrant (with or without a document specifying certain matters which should otherwise be in the warrant itself) and an Undertaking required under the Act (and not an Undertaking that may be proffered otherwise for any reason) are specific matters which an issuing Judicial Authority is under an obligation to provide as prescribed by the Act itself. Obviously the European Arrest Warrant must always be provided and an Undertaking in the circumstances specified such as pursuant to s. 45, the provisions of which are referred to later in this judgment. I do not consider that these prescribed matters fall into the same category as the transmission of additional information, which can only arise following a request in a particular case, by the issuing Judicial Authority to the executing Judicial Authority as provided for in s. 20. The Oireachtas has chosen to deal with the specified or expressly prescribed kind of documents by means of s. 12 and with the transmission of further information, which may vary according to the nature of the request in each case, pursuant to s. 20 or not arise at all.
In any event, since the Oireachtas has made a specific provision for the transmission of information referred to in s. 20 in the terms and with the effect which I have explained above it is not to be inferred that the information referred to in s. 20 must be proved by direct evidence because other and different provisions are made as regards the proof of the documents referred to in s. 12(8) when that would be, as I have indicated, to deprive s. 20 of its purpose.
The Onus of Proof and the Finding that the Appellant had fled Poland
These two issues were interlinked in the submissions of the appellant.
The issue as to whether the appellant “fled” the issuing State relates to the fact that Irish law imposes a precondition, which is not to be found as a precondition in the Framework Decision, to the surrender of persons pursuant to a European Arrest Warrant where the surrender is sought for the purpose of serving a term of imprisonment. That precondition is to be found in s. 10 of the Act of 2003 as inserted by the Act of 2005. Section 10 is, as the learned High Court Judge aptly described it, the gateway, so to speak, to the Court’s jurisdiction to make an order for surrender. Section 10 provides as follows:
Subparagraph (d) above is the only provision capable of applying to the appellant in this case. As Fennelly J. pointed out in Minister for Justice, Equality and Law Reform –v- Tobin (Supreme Court 25th February 2008 Unreported):
|“Where a judicial authority in an issuing state duly issues a European Arrest Warrant in respect of a person -|
|(a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates,|
|(b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,|
|(c) who has been convicted of, but not yet sentenced in respect of, an offence to which the European arrest warrant relates, or|
|(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she—|
|(i) commenced serving that sentence, or|
|(ii) completed serving that sentence,|
|that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.”
“There are two components to this provision:
· that a sentence of imprisonment has been imposed;
· that the person in question “fled” the jurisdiction which imposed the sentence.”
In the Tobin case Fennelly J., in upholding the decision of Peart J. on that point, held that “fleeing” necessarily implied, inter alia, escape, evasion and the term fled as used in s. 10(d) must be construed accordingly.
Before making an Order for the surrender of the appellant the High Court had to be satisfied that the appellant had “fled” the issuing State before he or she had commenced serving his sentence or had completed serving the sentence. On this issue I agree with the judgment of Macken J., where she summarises the material which was before the learned High Court Judge, principally that he had already been sentenced to a number of suspended sentences subject to various conditions of which the appellant was in breach. It is clear that the learned High Court Judge was entitled to conclude from the evidence and material before him that the suspension of the sentences of imprisonment was removed by reason of the breaches of the conditions of their suspension which occurred before he had left Poland and indeed by the very act of leaving Poland itself. I agree with the views of Macken J., that while the subjective reasons given by a person such as the appellant for leaving the issuing State and coming to Ireland, in this case that he wanted to make a better life for himself, may be taken into account within the context of the facts and circumstances of the case as a whole, the appellant`, having already been the subject of three separate terms of imprisonment, albeit suspended, was placed under certain judicial constraints a breach of which would or could lead to an Order requiring him to serve those sentences. As Macken J., also points out that the Courts must also look at the objective circumstances in which a person such as the appellant left the country in question. I am satisfied that on the evidence before him the learned trial Judge was entitled to be satisfied that in leaving Poland the appellant was seeking to evade the consequences of the three sentences which had been imposed on him prior to leaving Poland and therefore to conclude that he had “fled”, within the meaning of the section, the jurisdiction which imposed the sentences.
As regards the onus of proof, Counsel for the appellant properly acknowledged that extradition proceedings are neither strictly criminal nor civil in nature but the ordinary rules of evidence apply. It was submitted, citing Minister for Justice, Equality & Law Reform –v- Abinbola [2006 IEHC 325] which in turn relied on R (Levin) -v- Governor of Brixton Prison 1997 AC that while not strictly criminal proceedings, in extradition matters criminal procedure and rules of evidence should apply. Suffice it to say that the latter case, the United Kingdom case, referred to a particular form of extradition proceedings in the context of arrangements for extradition between the United Kingdom and the United States which involved a wholly different procedure for extradition than that which arises under the system of surrender provided for in the Act of 2003 as amended. Section 10 of the Act of 2003 provides “Where a Judicial Authority in an issuing State duly issues a European Arrest Warrant in respect of a person …that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing State.” For the purpose of making an Order pursuant to s. 10 the trial Judge has to be satisfied that the requirements of the Act, and where specified, the Framework Decision, have been complied with. Once so satisfied he or she is bound to make the Order for surrender.
As I pointed out in Attorney General –v- Park (Unreported) Supreme Court 6th December 2004 which concerned extradition under the Act of 1965, as amended, “The burden of proof of facts which may rest on the applicant in these proceedings is not that of a criminal trial. I hasten to add that the learned High Court Judge did not approach this matter on such a basis and it is just that I consider it appropriate at this point to distinguish between extradition proceedings and other forms of proceedings, criminal and civil. An extradition proceeding pursuant to the relevant Acts has its own special features which in a certain sense makes it sui generis.” Later in the judgment it was stated “The role of the requested State, indeed its duty, is to give effect to a lawful request from a requesting State once it is determined that the request fulfils the criteria laid down by the relevant legislation …. The responsibility for bringing a person named in a warrant before the High Court clearly rests with authorities in the State. Once that is done the task in determining whether all legal requirements for the making of an Order pursuant to s. 47 are fulfilled rests with the High Court Judge. That is an inherently inquisitorial function.” It seems to me that the same considerations apply to applications for surrender pursuant to the Act of 2003 and indeed s. 20 of the Act, as cited above, highlights the inquisitorial dimension of the proceedings. The rules of evidence which apply are not those of a criminal trial. In carrying out its function as aforesaid the Court ensures that no one in this jurisdiction shall be surrendered pursuant to the Act unless the Court is satisfied that all criteria laid down by the Act and, where specified, in the Framework Decision, have been satisfied and that there is no other lawful bar to the making of the Order.
I also agree with Macken J., that the reference by the learned trial Judge in this case at one point to the heavy onus on the appellant was a reference to the fact that he was in a position to produce evidence accessible to him or peculiar to his own knowledge if he sought to challenge the evidence upon which he, the trial Judge, was otherwise entitled to conclude that the appellant had fled Poland within the meaning of the section. Accordingly these grounds of appeal fail.
Undertaking pursuant to Section 45
As regards the return of the appellant to serve a sentence in respect of the fourth offence it is recalled that his conviction and sentence was decided in his absence. The European Arrest Warrant at paragraph D under the heading “Judgment in absentia” states at D. 1 that a judgment in absentia was issued. The basis on which this was done, according to Polish law, is recited in the same paragraph of the warrant namely that “The wanted person must be delivered the summons personally or he was informed in another manner of the date and venue of the hearing”, and it goes on to explain “The summons to the hearing were collected by the mother of Piotr Sliczynski, and therefore it should be assumed that Piotr Sliczynski was duly notified of the date of the hearing on 28th June 2005.”
Section 45 of the Act of 2003 provides as follows:-
As can be seen a person cannot be surrendered under this Act in relation to an offence if he or she is not present when tried and convicted for the offence and if he or she was not notified of the time and place of the trial unless the issuing Judicial Authority gives an undertaking in writing that the person will, upon being surrendered be retried for that offence or be given the opportunity of a retrial in respect of that offence.
45.—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 convicted of the offence specified in the European arrest warrant, and|
|(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or|
|(ii) he or she was not permitted to attend the trial in respect of the offence concerned,|
|unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered—|
|(i) be retried for that offence or be given the opportunity of a retrial in respect of that offence,|
|(ii) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and|
|(iii) be permitted to be present when any such retrial takes place.
As regards the appellant being notified of the trial the learned Trial Judge noted that one of the letters, that dated 21st September, received from the Polish Judicial Authority stated “In all cases, the correspondence sent to the respondent was not received by him and it was returned to the court with a note that the addressee was not at home.” It added, in none of the cases did Mr. Sliczynski provide an address for documents and his place of residence was unknown. As appears from the information received by the High Court from the Polish Judicial authorities one of the grounds which the Polish Court considered relevant to the lifting of the suspension of the former sentences was the failure of the appellant to notify the Probation Officer of his place of residence because he was no longer living at home. This points to the fact that he was never notified himself of the trial.
That is not it seems of great consequence in Polish law and the learned Trial Judge went on to point out that according to the information which he received from the Polish Judicial Authority, Article 132 of the Polish Code of Criminal Procedure provides that communication of a trial could be served on an addressee personally and that paragraph 2 of Article 132 provides “In the event of the temporary absence of the addressee at his or her place of residence, the communication will be served to an adult resident and in case of his or her absence the house administrator …”.
The learned Trial Judge went on to conclude, and I have no reason to doubt that conclusion, that the appellant was notified in accordance with Polish law of the trial which enabled the trial to proceed in absentia. He stated “The Polish Authority indicates that as far as they are concerned he was notified by communication through his mother. This Court is not in a position to decide that matter of fact.”
For the purpose of Polish law that no doubt was sufficient notification which enabled the Polish Court to proceed with the trial, conviction and sentence of the appellant in his absence.
However, s. 45(b)(i) must be interpreted and applied as a matter of Irish law.
That specifies that the issuing Judicial Authority give an undertaking that the person will at least have an opportunity of being retried, if surrendered, if he was not present for the trial, which is undisputedly the case here, or he was not notified of the “time when, and place at which, he or she would be tried for the offence,”.
The ordinary meaning of that language is that it is the person to be tried who must be notified. It must be actual notification and not any other notification. I cannot read into s. 45 a meaning that envisaged notification to a person’s mother or other person being presumed sufficient, especially when there is no evidence that the person concerned received any notification. If it was intended that any other form of notification or some form of constructive notification, particularly where trial for a criminal offence is concerned, the Oireachtas would have expressly said so.
Under Polish law it may be sufficient, for the purpose of trying somebody in Poland in their absence, to give them notification by delivering it to some person at their place of residence and even that does not seem to have been done in this case but that is not the kind of notice to which s. 45 refers. It would, as I say, require some express provision in our Act, along the lines of that expressly stated in the Polish Article 132, to deem that kind of notice sufficient for the purpose of s. 45.
On the facts and information as provided in the European Arrest Warrant and by the Polish Judicial Authority one can only conclude that the appellant was not actually notified of the time and place of trial. All we know is that his mother was notified and at an address at which the Polish Authorities acknowledge he no longer resided. There is no information tending to establish that the appellant was himself notified. In his affidavit of 17 July 2007 he avers that he was not informed and was unaware of the prosecution and trial concerning the fourth offence. That evidence is consistent with the information provided by the requesting Judicial Authority. For that reason alone, absent the Undertaking requested by s. 45, it seems to me that he cannot be surrendered to serve a sentence in respect of that particular offence as specified in the warrant.
I would add, that although the Act falls to be interpreted in the light of the Framework Decision, there is nothing in the provisions of the latter which could lead to any other interpretation of the plain meaning of s. 45. On the contrary, if one were to resort to Article 5.1 of the Framework Decision it provides “…and if that person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia ….” That also seems to suggest that the person concerned, if not summoned in person, must nonetheless be otherwise personally informed of the date and place of the hearing. In any case the meaning of s. 45 is clear.
The learned Trial Judge then, in this context, considered whether there is under Polish law an opportunity to apply for a retrial although in the absence of the Undertaking required by s. 45 this is not strictly relevant. The learned Trial Judge concluded that “… that the procedure available in Poland whereby the respondent may apply to the Court there for a retrial is a sufficient guarantee for this Court to ensure that there is compliance with the Framework Decision.” In this respect he relied on s. 4A of the European Arrest Warrant Act of 2003 as inserted by the 2005 Act. That section provides that it shall be presumed that an issuing State will comply with the requirements of the Framework Decision unless the contrary is shown.
Moreover I do not think that s. 4(A) has any pertinence to this particular point. That section refers to a presumption that an issuing State will comply with the requirements of the Framework Decision. But Article 5.1 does not impose any obligation or make any requirement of a requesting State to provide for a retrial even should the person surrendered apply for one. It is merely a permissive provision which allows a requested Member State to make it a pre-condition to the surrender of a person in relation to an offence for which that person has been tried in absentia that a guarantee is given that the person will have an opportunity of a retrial if surrendered. This is what Ireland has done by virtue of s. 45 and that pre-condition can only be met in the form of a written undertaking which the section requires. The section is very specific. It requires that “ …the issuing Judicial Authority gives an undertaking in writing” that the person surrendered will be retried for the offence or be given an opportunity of a retrial in respect of the offence. The section does not require proof that the law of the requesting State provides for a retrial of the offence, or provides for the surrendered person to have an opportunity of a retrial, (and in any event Polish law appears to provide for a review of sentence only on appeal, if taken within time) but requires the Judicial Authority to give a written undertaking. The absence of an undertaking is a fatal flaw in the request concerning the fourth offence.
Accordingly, in my view, the appellant cannot be surrendered for the purpose of serving a sentence in respect of the fourth offence for which he was convicted and sentenced in absentia but of course he should be surrendered in respect of the other three offences.