Surrender refused under EAW Act 2003 as trial in absentia conditions not met by Slovak Republic.

Neutral Citation: [2015] IEHC 806

THE HIGH COURT

[2013 No. 144 EXT]

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MÁRIO TULIS

RESPONDENT

JUDGMENT of Ms. Justice Donnelly delivered the 16th day of December, 2015.

1. Pursuant to a European arrest warrant (“EAW”) dated 6th May, 2013, the Slovak Republic seeks the surrender of the respondent to

serve an eighteen month sentence imposed upon him in respect of an offence of burglary. The only contentious issue in this case is

whether his surrender is prohibited under s. 45 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”).

Section 45 of the Act of 2003

2. For the purpose of providing context to this judgment, it is necessary to set out in some detail the information provided in the EAW

and the additional documentation. Point (d) of the EAW indicates that the respondent had not been present at the hearing which led

to the decision rendered (emphasis added). “Hearing” is the word used in the translated version of the EAW before the Court. “Trial”

is the word used in the English version of the Framework Decision. (2009/299/JHA) of 26th February, 2009 on the application of the

principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (“the 2009 Framework

Decision”). However, a comparison reveals that the Slovakian version of the relevant part of point (d) of the EAW accords with the

wording in the Slovakian version of the 2009 Framework Decision.

3. The EAW indicates reliance by the issuing judicial authority upon point (d) 3.2 in order to justify the recognition and execution of

the decision which was rendered following the hearing in the absence of the respondent. The EAW shows that a box has been ticked

at point (d) 3.2, which in the English translation recites: “The person concerned, conscious of the planned hearing, has authorised a

legal representative, who has been either appointed by the person concerned or assigned by the state, to defend him at the hearing,

and the legal representative has defended him at the hearing.” Again, however, comparison with the Slovak version of the 2009

Framework Decision reveals that the Slovak version of the EAW contains the same language.

4. The information provided under point (d) 4, the EAW recites:

“Since the Court has decided that the criminal matter will be proceeded in the proceedings against the escaped, the

Court appointed a defence lawyer for the accused by the court provision dated 12.09.2008, ref. 2T/92/2005, who was

present at the hearing which led to the decision rendered, the decision has been properly delivered to him and after the

decision has been announced he has waived his right to file an appeal.”

5. In his affidavit grounding his points of objection, the respondent stated that he recalled being arrested and questioned by police in

respect of the alleged offence on 18th June, 2005. He stated that he never had any access to a lawyer and was never in court. He

further stated that he was released by the police but sometime later, he said he received a letter stating that he had received a one

year sentence and he exhibited that letter to this Court.

6. The respondent stated that he utilised the available process of appeal where he could apply by post to appeal the sentence. He

said he did not receive any reply to the request for the appeal and was never made aware of any appeal hearing. He emphatically

stated that he was not aware of the proceedings and was not present in court and did not waive his subsequent right to appeal as

he was not aware of the final decision. He then outlined how he came to Ireland in search of work in September 2006. He set out his

family circumstances.

7. Having received the affidavit of the respondent, the central authority requested comments from the issuing judicial authority on

the variations in detail between the EAW and the respondent’s affidavit. The central authority also sought an explanation of the

document that the respondent had exhibited and confirmation as to whether efforts were made by him to appeal by post.

8. A reply was received from the issuing judicial authority on 10th June, 2015. The issuing judicial authority stated that the

proceedings had been carried out against the accused due to his absence as a fugitive person who had been evading criminal

proceedings by staying abroad. Somewhat confusingly, the information initially appeared to suggest that the proceedings were held in

the absence of a solicitor but in the second paragraph, it was stated that he was represented by a solicitor. Not surprisingly, the

central authority sought further clarification in respect of this matter. Clarification was also sought as to how the issuing judicial

authority was relying on point (d) 3.2. The central authority asked “[f]or example, is there any record of the authorisation of the

lawyer by the respondent or is the [sic] case that the lawyer was appointed by the court without the input of the respondent

because he could not be located.”

9. The issuing judicial authority replied on 16th July, 2015, confirming that the district prosecutor had issued an accusation against

the accused. Based on that accusation, the judge had issued a criminal order finding the accused guilty and sentencing him to one

year imprisonment. On 12th January, 2006, the respondent filed an appeal against that court order. At the time he filed the appeal,

he was serving a prison sentence. The issuing judicial authority then stated:

“[d]ue to the fact that the accused Mário Tulis appealed a court ruling, the Court proceeded to determine the date of

hearing being 31/03/2006 and requested the accused to choose a defence lawyer as his case called for having a

mandatory defence lawyer acting in his stead (the accused at that time had been serving his custodial sentence in

another criminal case) and at the same time was legally cautioned regarding the fact that should he fail to choose his

defence lawyer, one shall be appointed to him by court, following the pertinent legal provisions. Since accused Mário Tulis

was released on 03/05/2006 from serving his custodial sentence by another ruling, his entitlement to a mandatory

defence lawyer became extinct. Therefore, the Court proceeded to hear the case with no existing legal grounds for

mandatory defence and thus without a defence lawyer. On this day, 02/06/2006, Court heard the accused Mário Tulis

with respect to the offence with which he had been formally charged…”

10. It appears that the court heard both the respondent and the co-accused at that hearing on 2nd June, 2006. The co-accused

implicated the respondent in his testimony. The court then scheduled a further hearing to take place on 13th September, 2006 in

order to hear three witnesses whose testimony was required. The accused did not appear at that hearing and did not provide any

justification for that failure. The court proceeded to schedule another date for hearing. As he again failed to appear “without even

receiving the delivered mail whereby he had been summonsed thereto”, consequently the main hearing was scheduled for 14th

February, 2007. The police, at the request of the court, sought to find the respondent. He could not be found and, in accordance

with Slovakian national law, the respondent was criminally processed as a fugitive person. The issuing judicial authority states:

“For this process the Court appointed on the 12/09/2008 a defence attorney who represented the accused throughout

the whole process in court. Once lapsed the legal periods of the proceedings against a fugitive person, Court proceeded

to determine a date of hearing for 10/12/2008 (if the Court is to issue resolution in the process against a fugitive person,

such resolution must be announced on the court’s legal noticeboard as well as on the internet and all possible means must

be employed to notify of the hearing’s date – all this has been followed).”

11. The information then states that the court held a hearing on 7th January, 2009 in the presence of the named appointed attorney

and took all the evidence. The respondent was given a cumulative eighteen months prison sentence. The information then detailed

the further attempts to make him serve this sentence.

Submissions

12. Counsel on behalf of the minister submitted that point (d) 3.2 and point (d) 4 had been duly completed by the issuing judicial

authority. The minister expressly relied upon that designation. Counsel submitted that, from the information provided to this Court, it

is established that the respondent was aware of the scheduled trial, was aware that if he did not turn up at a date that he would be

represented by a lawyer and was so represented by a lawyer. In those circumstances, all the requirements of point (d) 3.2 of the

Table in s. 45 of the Act of 2003 are met.

13. On behalf of the respondent, counsel submitted that there was no mandate given to the lawyer. Counsel pointed out that the

lawyer first represented him two years after the day upon which he first turned up for the hearing. Counsel submitted that in the

circumstances set out in the information, no mandate had in fact been given.

The Court’s analysis and determination on the Section 45 issue

14. In Minister for Justice and Equality v. Palonka [2015] IECA 69, Peart J. at para [37] approved the dicta of the High Court

(Edwards J.) in Minister for Justice and Equality v. Surma [2013] IEHC 618 as follows:

“…it could not be the case that all competence on the part of an executing judicial authority is ousted by a purported

certification in the manner provided for, because point 4 of point (d) requires the provision of amplifying information to

support a bald certification in any of the alternative scenarios contemplated under points 3.1b, 3.2 or 3.3 of point (d).”

15. Peart J. also held that the High Court (Edwards J.) had been correct to state that:

“The scheme clearly contemplates that the executing judicial authority must have some entitlement to review the

assessment of the issuing judicial authority in those scenarios, otherwise there is no logical reason why amplifying

information would be required to be provided at point 4.”

16. Peart J. also observed that when the EAW includes the detail as to the basis for its certification under point (d) 4, a person facing

surrender has the opportunity to focus concentration on the facts and perhaps raise some issue.

17. Therefore, the Court is entitled to assess the information provided to it as required in point (d) 4 and make a determination as to

whether the certification may properly be relied upon. In accordance with the decision in Palonka, there is no onus upon a respondent

to raise, by cogent evidence, an objection or contradiction in relation to the issuing judicial authority certification before the

executing judicial authority need concern itself with the failure by the issuing judicial authority to complete the warrant at point (d) 4.

The obligation on the executing judicial authority exists regardless of any particular challenge by a respondent.

18. Information in this case has been provided by the issuing judicial authority to support their designation. Ultimately, the issue for

this Court, as executing judicial authority, is whether the designation by the issuing judicial authority under point (d) 3.2 is

appropriately relied upon. In assessing any designation or statement by an issuing judicial authority in an EAW, this Court must bear in

mind the principles of mutual trust and mutual confidence that these courts have in the institutions, particularly the judicial

institutions, of another Member State of the European Union.

19. In the present case, I accept the history of events leading to the conviction and appeal presented by the issuing judicial

authority. The respondent has been, at the very least, inaccurate as to the chain of events which occurred in Slovakia. I find it more

likely than not that he has been deliberately evasive about the extent of his dealings with the Slovakian authorities. He did not aver

to the fact that he had appeared in court in relation to the appeal which he himself had originated. That is not a factor a person is

likely to forget, particularly where this was the first time he had appeared in any court in relation to the offence. It is noteworthy

that he did not swear a replying affidavit to the information sent by the issuing judicial authority dated 16th July, 2015 but only

received in a readable condition in October 2015.

20. Furthermore, I note from the information provided by the issuing judicial authority, the respondent’s recently appointed lawyer in

Slovakia sought and received a copy of his file after his arrest. It appears that this file was received after he swore his affidavit. That

file, or the information contained therein, must have been transmitted to the respondent, yet no correction of his clearly wrong

averments was made. That file will have shown the true position as indicated to this Court by the issuing judicial authority. In other

circumstances, an issue might arise about the extent of the duty to correct any obvious errors in an affidavit that subsequently come

to light. I do note, however, that, in this case, counsel only relied upon the argument that the information provided by the issuing

judicial authority showed that he had not given a mandate to a lawyer.

21. Having held that the respondent may have told untruths, it is necessary to acknowledge that this does not affect the duty of the

High Court to carry out its functions under the Act of 2003 and to determine if the criteria for surrender have been properly met.

Therefore, the Court has to assess the designation of the issuing judicial authority for the purpose of establishing whether the

surrender is prohibited under the provisions of s. 16, having considered the terms of s. 45 of the Act of 2003.

22. Where reliance is placed upon a certification under point (d) 3.2 in an EAW, three requirements must be met before it is

appropriate to surrender the requested person. The first is that the person was aware of the scheduled trial, the second is that he or

she had given a mandate to a legal representative, and the third is that the legal representative had actually defended him or her at

the hearing.

23. For the reasons set out in the case of Minister for Justice and Equality v. Fiszer [2015] IEHC 664, the knowledge of the scheduled

trial is to be contrasted with the knowledge of the date and place of the trial referred to in 3.1a and 3.1b of point (d). In this case, I

have no hesitation in holding that the respondent was aware of his scheduled trial. He had appeared in the initial stages of the

proceedings against him and then failed to appear “notwithstanding the fact that he had acknowledged the date at the previous

hearing”. I conclude that the nature of the proceedings were such that he was aware that a trial was scheduled.

24. After his failure to appear, the Slovakian authorities made every effort to seek out the respondent and, if necessary, bring him by

warrant to court. It is unsurprising that they could not find him as he had left the jurisdiction by that stage. The Slovakian court

ultimately declared him to be a fugitive person. A defence attorney was then appointed by the court to represent the respondent and

this defence attorney represented him throughout the “whole process in court”. The hearing was held in the presence of the named

attorney and the respondent was duly convicted.

25. In the case of Fiszer, I identified the importance of the recitals in the 2009 Framework Decision when interpreting aspects of s. 45

of the Act of 2003. The phrase contained in point (d) 3.2 in the Table in s. 45 and in the 2009 Framework Decision is directly

referenced in the tenth recital. The recital is as follows: “The recognition and execution of a decision rendered following a trial at

which the person concerned did not appear in person should not be refused where the person concerned, being aware of the

scheduled trial, was defended at the trial by a legal counsellor to whom he or she had given a mandate to do so, ensuring that legal

assistance is practical and effective. In this context, it should not matter whether the legal counsellor was chosen, appointed and

paid by the person concerned, or whether this legal counsellor was appointed and paid by the State, it being understood that the

person concerned should deliberately have chosen to be represented by a legal counsellor instead of appearing in person at the trial.

The appointment of the legal counsellor and related issues are a matter of national law.”

26. Both parties relied on the phrase “deliberately chosen” to advance their cause. Counsel for the respondent submitted that there

was no element of deliberately choosing to be represented by a lawyer here as there was no communication at all with the lawyer.

Counsel for the minister submitted the fact that the respondent was told at the earlier stage when in custody, that there would be a

mandatory counsel appointed for him should he fail to choose a defence lawyer, demonstrated his awareness that a defence lawyer

would be appointed. Therefore, counsel submitted, this was a deliberate decision to be represented by that lawyer in the absence of

turning up at the hearing in person.

27. The 2009 Framework Decision had as an objective the enhancement of “the procedural rights of persons subject to criminal

proceedings, to facilitate judicial cooperation in criminal matters and, in particular, to improve mutual recognition of judicial decisions

between Member States.” As Edwards J. said at para. 115 in Minister for Justice and Equality v. Surma [2013] IEHC 618: “the effect

of these provisions is to reflect an inter-state agreement on the part of those member states who have opted in to the

arrangement, that where a judicial authority in the executing state is asked to surrender a person on foot of a European arrest

warrant, who has been tried in absentia in the issuing state, the executing judicial authority will not as a matter of procedure

surrender that person unless it has certain information, and/or certain undertakings have been given”.

28. The 2009 Framework Decision was aimed, in part to bring consistency to the issue of decisions rendered following a trial within

various Framework Decisions implementing the principle of mutual recognition of final judicial decisions. The lack of consistency could

complicate the work of both the practitioners and hamper judicial co-operation. Recital four stated “[i]t is therefore necessary to

provide clear and common grounds for non-recognition of decisions rendered following a trial at which the person concerned did not

appear in person.”

29. Having delivered the judgment in Fiszer, I invited both parties to make any further submissions they saw fit in light of that

decision. Counsel for the respondent sought to distinguish the present situation from that in Fiszer. It is correct to highlight the clear

distinction between the facts herein and the facts in Fiszer. Fiszer seeks to place point (d) 3.2 to the Table in s. 45 of the Act of

2003, as amended, in its correct context within the 2009 Framework Decision. It addressed what is meant by “scheduled trial.” In

circumstances where Mr. Fiszer had clearly been represented by a lawyer when he was present in the course of the proceedings,

there was no necessity to examine in depth the meaning of the term “mandate to a legal counsellor”.

30. The phrase “mandate to a legal counsellor” can be readily understood as a commission by which a party entrusts to a lawyer the

performance of a service. The lawyer to whom the commission is entrusted may be chosen by the person or indeed assigned by the

court. While the appointment of the lawyer by the State, as referred to in point (d) 3.2, could refer to a situation where an indigent

accused opts for legal representation and the State appoints a lawyer under legal aid, it is not necessarily confined to such legal aid

appointments. Indeed, nothing in s. 45, or in the 2009 Framework Decision, indicates that such a restriction was intended. It is a

broad provision and in my view it includes, for example, the situation where the State provides for mandatory lawyers in certain cases

such as may occur when a person does not appear at the trial.

31. When the appointment of a lawyer by the State is understood in that broad sense, it raises the possibility that a person can give

a mandate to such a State appointed lawyer. If a person, with knowledge of a scheduled trial and of the fact that there will be a

mandatory appointment of a lawyer, chooses to absent his or herself from the trial, he or she has deliberatively chosen to be

represented by that State appointed lawyer. The important matter is that the mandate is only given where the absence from the trial

by the accused is with knowledge of both the scheduled trial and of the resultant appointment of a lawyer to represent him should he

fail to attend. It is that complete knowledge and chosen absence from trial that amounts to a deliberate choice to be represented by

a lawyer at that trial.

32. However, the appointment of a lawyer to represent a person who does not appear at trial is insufficient on its own to comply with

the conditions set out in the 2009 Framework Decision for an acceptable trial in absentia. Given that the phrase “deliberately chosen”

is used in the recital to the 2009 Framework Decision, knowledge that a mandatory lawyer will be appointed is required before a

person who flees could be said to have deliberately chosen a lawyer, and thereby given a mandate, within the terms of 3.2 of point

(d) of the Table set out in s. 45 of the Act of 2003, as amended. There must be a deliberate choice to be represented by a lawyer.

Such a choice can only take place when there is knowledge that such a lawyer will be appointed.

33. In this case, the issuing judicial authority, in explaining the background to the provision of the lawyer as required under the 2009

Framework Decision, have made, what appears to this Court to be, a deliberate distinction between the provision of a mandatory

defence lawyer to a person who is in custody and the provision of a defence lawyer to a person who is out of custody. In the

passage from the response of the issuing judicial authority relied upon by the minister, the provision of the mandatory lawyer is

explained by reference to the fact that “the accused at that time had been serving his custodial sentence in another criminal case”.

At the later point in the same response, when referring to the appointment of the defence lawyer to represent the respondent, there

was no reference to this being a mandatory consequence of his failure to appear. Furthermore, there was no reference to whether he

was told at the point he acknowledged the next day of the hearing that should he fail to appear, a lawyer would be appointed in his

stead. This is in direct contrast to the information the respondent was given by virtue of being in custody that the court would

appoint a lawyer should he fail to so appear at the trial.

34. There is simply no evidence of knowledge on the part of the respondent that a mandatory appointment of a lawyer could take

place. Indeed, the evidence from the issuing judicial authority points to the contrary conclusion. The reference to the mandatory

lawyer was immediately followed by a sub-clause explaining the particular circumstances in his case which called for the mandatory

appointment of a defence attorney, namely that he was in custody on another matter. The only reasonable conclusion open to the

Court on the evidence before it, is that the mandatory defence lawyer provisions in operation in Slovakia, applied to the respondent

as a person who is being held in custody. There is no other reference to the respondent being expressly told that a mandatory lawyer

would be provided in his absence from the scheduled trial. There is also no reference to any circumstances which might suggest that

he had general knowledge or should have had general knowledge that such a mandatory lawyer would be appointed. Indeed, it is not

clear if the decision of the court to appoint the lawyer was mandated by law or was a discretionary power. In those circumstances, I

am not satisfied that the respondent knew that a mandatory lawyer would be appointed.

Not truly a trial in absentia?

35. In Fiszer, the minister contended that, despite the designation by the issuing judicial authority that the respondent had not

appeared at his trial, the court was entitled to go behind that designation to see if the primary focus of s. 45 was satisfied, i.e.

appearance in person at the proceedings which determined guilt or innocence and which resulted in the sentence order the subject

matter of the EAW. In this case, despite the invitation to make further submissions in the light of Fiszer, the minister did not seek to

go behind the designation of non-appearance in person and trial in point (d) 2 and reliance upon point (d) 3.2. That is understandable

as the facts in Fiszer can be viewed differently.

36. In Fiszer, there had been an express reference in the additional information to the appearance of the respondent “for the trial”. In

the present case, while there is a reference to his presence at “the hearing” in the additional information, the designation in point (d)

quite clearly pointed to him not being present at proceedings which could constitute a trial. This is because point (d) 4 expressly

refers to the court appointing a defence lawyer “who was present at the hearing which led to the decision rendered.” The clear

inference is that it was only the defence lawyer who was present at such a hearing and not the respondent.

37. The Court acknowledges its duty to inquire into whether the conditions of the Act of 2003 have been satisfied. In the

circumstances of this particular case, including, the reference in the EAW to the respondent’s lawyer being present “at the hearing

which led to the decision rendered” implying the respondent was not present at such a hearing, where there is express reliance on

para. (d) 3.2 and where no arguments have been made in the case to the effect that the Court should disregard the designation of

the issuing judicial authority, the Court concludes that it would be wrong to disregard the designation of the issuing judicial authority

to the effect that this was a trial in absentia. The Court is also mindful that the High Court has already held with respect to a

designation that an offence comes within the list of offences set out at Article 2, para. 2 of the 2002 Framework Decision, that it is

only where there is a “gross and manifest error” that the court may disregard the designation (Minister for Justice and Equality v.

Ciupe (unreported, High Court, Edwards J., 13th September, 2013)). The issue of whether the High Court, as executing judicial

authority, is entitled to look behind the designation of the issuing judicial authority that the respondent was not present at his or her

trial and if so, the conditions under which such review might take occur, remain to be decided in another case.

Conclusion

38. The Court, in the exercise of its duty to review the designation in light of the information provided at point (d) 4, finds that the

conditions laid down for permissible surrender for trial in absentia have not been satisfied. In those circumstances, the surrender of

the respondent is prohibited under s. 45 and s. 16 of the Act of 2003, as amended.

Other Section 16 Issues

39. For the sake of completeness, I will also deal with the remaining requirements of s. 16 of the Act of 2003, as amended. Having

considered all the papers before me, I am quite satisfied that the person who appears before me is the person in respect of whom the

EAW has issued. I am also satisfied that the EAW has been endorsed in accordance with s. 13 for execution in this jurisdiction. I am

not required under ss. 21A, 22, 23 or 24 of the Act of 2003 to refuse his surrender. I am satisfied that the offence for which he is

sought to serve a sentence corresponds with the offence of burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud

Offences) Act, 2001 and that minimum gravity requirements have been met. Apart from s. 45, his surrender is not prohibited by any

other section contained in Part 3 of the Act of 2003, as amended.

Conclusion

40. For the reasons set out above, I must refuse his surrender under s. 45 of the Act of 2003, as although the EAW sets out the

matters indicated in the Table to s. 45, on an assessment thereof, the conditions set out in the Table have not in fact been truly met

in the issuing state.