Supreme Court allows appeal against surrender order due to inadequate evidence proving the appellant fled Poland.

THE SUPREME COURT

Macken, J.

Finnegan, J.

O’Donnell, J.

[S.C. No. 123 of 2009]

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003

BETWEEN

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

AND

DOMINIK SLONSKI

RESPONDENT/APPELLANT

JUDGMENT delivered on the 25th day of March, 2010 by Macken, J.

This is an appeal from the judgment of the High Court (Peart, J.) delivered on the 10th March, 2009 and the Order made

thereon by which the High Court directed the surrender of the appellant to Poland, pursuant to s.16 of the European

Arrest Warrant Act, 2003 (“the Act of 2003”).

The warrant in question, dated the 17th March, 2008, issued from a judicial authority in Poland in respect of the appellant

and was duly endorsed by the High Court. The appellant was thereafter arrested. In the usual way, when the person

sought to be surrendered pursuant to a European arrest warrant does not consent to the same, as the appellant did not,

a Notice of Objection was filed on his behalf, the revised version of which, dated the 11th November, 2008, contained

three objections to surrender, namely:

(i) That the appellant did not come within the provisions of s.10 of the Act of 2003 on the basis that he had not

“fled” Poland after the imposition of a sentence of imprisonment;

(ii) The surrender was prohibited by part 3 of the Act of 2003 because the description of the offence contained in

the European arrest warrant was not one to which Article 2.2 of the Framework Decision applied and was not either

an offence which corresponds to an offence within the State, as required by s.38, and is not “a corresponding

offence” as defined by s.5, of the Act of 2003;

(iii) The appellant should not be surrendered to Poland because he had already served all the required penalty during

the course of his imprisonment in the State, he having been arrested, pursuant to the provisions of the Act of 2003.

It would, therefore, be futile to surrender him to Poland.

Affidavits were filed, both on behalf of the appellant and also on behalf of the Minister, and it is common case that

additional information was sought on behalf of the Minister from the Polish judicial authority pursuant to s.20 of the Act of

2003, and certain additional information was thereupon made available. I will refer to these matters further in the course

of my judgment, where necessary.

Decision

Having regard to the findings which I propose to make, it is appropriate to commence with the first issue raised on behalf

of the appellant in this appeal, namely, whether the learned High Court judge was correct in law, and the appellant says

he was not, to direct the surrender of the appellant pursuant to s.16 of the Act of 2003, having regard to the appellant’s

claim that he was not a person who comes within s.10 of the Act of 2003, he not having fled Poland, or more correctly,

as it developed in the course of argument, on the basis that there was no evidence before the learned High Court judge

upon which the judge could have properly found that the appellant had fled Poland within the meaning of the section.

Section 10 of the Act of 2003 provides as follows:

“Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a

person—

(a) …

(b) …

(c) …

(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.” (emphasis added)

In his affidavit, sworn on the 17th December, 2008, the appellant, in its material part, averred as follows:

“(3) I have been in Ireland since 2005 and I have been in custody here since March, 2005 when I was

arrested for a drugs offence and subsequently sentenced to seven years imprisonment. Whereas I

have been in different prisons, I have been in the Midlands prison since August, 2008. I was arrested

on the extradition warrant on 25th December, 2008 and I have been in custody on that since then.

…

(5) I was not present in court in Poland on 4th November, 2005 when I was ordered to serve a period

of imprisonment. I was in custody in Ireland. In the circumstances, I believe I cannot be regarded as

having fled Poland before I commenced or completed serving that sentence.

(6) I believe the details specified in the European Arrest Warrant are inadequate and incomplete.”

It is helpful to set this issue in context by indicating what it is the learned trial judge said in relation to the issue of s.10

of the Act before dealing further with the issue. He stated as follows:

“The surrender of the respondent is sought by a judicial authority in Poland on foot of a European arrest warrant

dated 17th March 2008 so that he can serve a sentence of 12 months imprisonment which was imposed upon him

there on the 21st November 2003. That sentence satisfies the minimum gravity requirement, being a sentence of

more than four months.

…

The sentence of imprisonment was conditionally suspended, the condition being that described in the warrant as

“a curator’s supervision”. It appears that by the 4th November 2005 it had become known by the Polish court that

the respondent had left Poland, which was a breach of the supervision condition, and on that date the court lifted

the suspension and ordered execution of the sentence. The warrant discloses also that on the 4th April 2005 the

respondent had landed at Dublin Airport and was detained there “while smuggling 500g of cocaine”. He was

sentenced here in respect of that offence and sentenced to a term of seven years’ imprisonment which he is

currently serving here.”

Insofar as the learned High Court judge’s finding is concerned, vis a vis fleeing, he stated as follows:

“I am satisfied firstly that the date on which this sentence was imposed was the 21st November 2003, and not the

date on which the suspension was lifted on 4th November 2005. The wording of s. 10(d) is clear and unambiguous.

If the respondent leaves the issuing state after that sentence was imposed and before he has served the

sentence, it is clear that he must be considered as having fled the issuing state before serving the sentence,

regardless of the fact that the suspension was lifted after he left. I reject this ground of objection.” (emphasis

added)

That is the learned High Court judge’s finding in respect of the point of objection raised under s.10 of the Act of 2003.

It was argued on behalf of the appellant that the word “fled” in s.10 of the Act of 2003 must mean a person who has fled

justice in the sense of having consciously evaded prosecution or serving a sentence, and cannot apply to leaving the

issuing state for an unrelated reason, even a reason which involves engaging in a criminal enterprise, such as in the

present case. If it had been intended otherwise, it is suggested that the Oireachtas would have used a more neutral

word, such as “left” the issuing state. In that regard, Mr. Kelly, counsel on behalf of the appellant, invokes dictionary

meanings of the word “flee”, but for the purposes of my judgment it is not necessary to consider these definitions in

detail. Counsel on behalf of the appellant also invokes the decisions of this Court in MJELR v. Tobin [2008] I.E.S.C. 3, and

MJELR v. Sliczynski [2008] I.E.S.C. 73, in support of his argument. He submitted, in particular, that there was no

information before the High Court of the type which permitted this Court in MJELR v. Sliczynski, supra. to find that the

appellant in that case “fled” within the meaning of s.10 of the Act.

Counsel argues that while additional information was sought by the respondent, pursuant to the provisions of s.20 of the

Act of 2003, the information furnished, which was received on the 16th June, 2008, did not mention any factors

concerning the conditions attaching to the suspension, the meaning of a “curator’s supervision”, the basis upon which

the supervision or suspension was lifted, that is to say what particular terms were allegedly breached by the appellant, or

the consequences of that breach which led apparently to the lifting of the suspension by the order made on the 4th

November, 2005.

Mr. Farrell, counsel for the respondent, argues that it can be clearly implied from the terms of the warrant and from the

lifting of the suspension, that there had been a breach of the curator’s supervision. He also contends that the appellant

breached the terms of his suspended sentence by leaving Poland, because the practical effect of leaving was that he

would no longer be subject to the supervision of the curator. Finally, he submits that although the appellant swore an

affidavit for the purposes of contending that he had not fled Poland, he did not deal in his affidavit with any reason for

leaving Poland or with any of the other information or material concerning leaving of Poland or, indeed, the curator’s

supervision.

Mr. Farrell also submits that the learned High Court judge was likewise entitled to draw certain inferences from the

information contained in the European arrest warrant and the additional information, that he did so correctly, and that

having regard to the appropriate inferences which he drew, he was then entitled to conclude that the appellant had fled

Poland within the meaning of s.10 of the Act of 2003, as the requirements for that section had been met, in accordance

with the above cited case law, which he also invokes.

Apart from the submission made on behalf of the respondent by counsel, arising out of the above factors, there is one

other piece of information that was before the learned High Court judge which is the content of paragraph 7 of the

affidavit of Sergeant Jim Kirwan sworn on the 7th January, 2009 in the following terms, and arising out of his arrest of the

appellant:

“I read over a praecipe of the offences contained in the warrant and asked “do you know what these are about” to

which he (the appellant) replied “yes, I remember that I got a suspended sentence on this. …”.

I mention again the contents of paragraph 5 of the affidavit of the appellant, sworn on the 17th December, 2008, which

in my view is slightly disingenuous and ambiguous as to the consequences which the appellant is contending for. It is as

well to set this out again:

“I was not present in Court in Poland on 4th November 2005 when I was ordered to serve a period of

imprisonment. I was in custody in Ireland. In these circumstances I believe I cannot be regarded as having fled

Poland before I commenced or completed serving that sentence.”

The sentence therein referred to is the sentence which was suspended, but as I read paragraph 6 of the affidavit it

appears to suggest, wrongly in my view, that the sentence only commenced on the 4th November, 2005 when the

suspension was lifted. This is incorrect, and in that regard I am satisfied that the learned High Court judge was correct

when he found that the sentence of imprisonment in question was the sentence imposed on the 21st November, 2003

(suspended) and not the order requiring that the appellant be admitted to prison once the suspension was lifted on the

4th November, 2005.

In one sense, therefore, the appellant does not, in his grounding affidavit, challenge at all the imposition of the sentence

of imprisonment, or the suspension order, or the effect of that suspension order. It is, therefore, appropriate to consider

only the legal argument made on the basis that the respondent failed to bring to the attention of the learned High Court

judge evidence upon which the learned High Court judge could properly conclude that the appellant fled Poland.

It is, of course, for the respondent, as applicant, to bring to the attention of the High Court factors upon which the

respondent contends the learned High Court judge could properly find that the appellant fled, within the meaning of s.10

of the Act. The appellant’s contention in this case, as mentioned above, is that there was no such material before the

High Court upon which the learned High Court judge could have concluded that he did, in fact, flee.

This issue of what is meant by “fled” in s.10 of the Act of 2003 has been dealt with in several cases, but of relevance to

this appeal is the case of MJELR v. Sliczynski, supra., in which I considered an appropriate approach to be adopted in

assessing whether or not, where a sentence has been suspended, a person had “fled” an issuing state within the meaning

of s.10 of the Act of 2003, with which analysis, Murray, C.J., in the same case, agreed.

In that case I set out all the factors which were before the learned High Court judge as furnished by the issuing judicial

authority, as well as the subjective averments of the appellant as to the reasons why he left Poland. As to the material

furnished either in the warrant, or pursuant to additional information sought, there was before the High Court judge in

that case the following information:

1. The number of sentences in issue;

2. The fact that the appellant was sentenced in his presence in relation to the material sentences;

3. The fact that those latter sentences were suspended in accordance with Polish law and that those suspensions

were subject to conditions, the conditions specified including that he maintain contact with the Probation Officer

and remain subject to their supervision, reside at a particular address, and inform the Probation Officer of each

change of residence, and in particular of any plan to travel abroad.

The evidence before the High Court in that case was also to the effect that the person sought to be surrendered, who

was subject to the above sentences, as suspended, had breached the terms of the suspension by failing to give any

notification to the Probation Officer, or any other appropriate person, of his intention to leave Poland and failed to provide

each change of address, no change of address in Ireland having been furnished.

As to the norms or requirements to be applied to the information available to the High Court judge in determining whether

a person sought to be surrendered, pursuant to the Act of 2003, had fled the issuing state, I stated:

“All of the factors germane to whether a person can be said to have fled must be taken into account. That

includes the motivation of the person sought to be returned to the requesting Member State, which is almost

inevitably likely to be a subjective motivation. So also the court must take into account other material factors,

such as whether the sentence was suspended, and where the suspension of the sentence was subject to terms,

whether those terms were known to the convicted person and whether those terms were complied with.

…

The court then must determine whether, objectively speaking, bearing in mind all of these factors, it can be

reasonably concluded that the appellant “fled” within the meaning of the sub-section. If it were the case that the

subjective motivation, as averred to on affidavit, had to be accepted as being conclusive of the question whether

a person fled within the meaning of the section, it seems to me that this would always or almost always “trump”

any information or material factor presented to the Court and upon which it could be objectively found that a

person had fled the requesting state.”

In the present case, the information as to the sentence in question and the conditions of suspension were given in the

following terms, as translated into English:

“By virtue of a sentence of District Court in Ostroda, Act No. II K1507/02 dated 21/11/2002, Dominik Slonski was

convicted to one year of imprisonment. The punishment was conditionally suspended and a curator’s supervision

was imposed on the convict. Then on 4/11/2005 the District Court in Pruszkow, Act No. D483/03, ordered execution

of punishment of imprisonment against the convict. The convict did not appear at the custody to fulfil the penalty.

It was established that the convict left Poland and on 4/4/2005 he was detained at Dublin Airport while smuggling

500g of cocaine. He was convicted to seven years of deprivation of freedom for this offence. Now he has been

serving the term of imprisonment in Mountjoy Prison in Ireland.”

On the basis of all the material presented, the following information was before the High Court:

(a) That on the 21st November, 2003 the appellant was convicted to one year imprisonment for the offence in

question;

(b) That the punishment was suspended conditionally;

(c) That a “curator’s supervision” was imposed on the appellant;

(d) That on 4th November, 2005 execution of the punishment of imprisonment was ordered against the appellant.

There was no information before the learned High Court judge as to the conditions imposed, as to what constituted a

“curator’s supervision”, as to what conditions attaching to his suspension were allegedly breached, or led to the lifting of

that suspension, and in particular as to whether or not the fact that the appellant left Poland was a breach of the

conditions attaching to the suspension, or if becoming involved in criminal activities, whether inside or outside Poland,

constituted a breach of the same conditions or other conditions attaching to the suspension. It is unclear to me on what

evidence the learned High Court judge based his finding of fact that the appellant’s leaving of Poland, “was a breach of

the supervision condition”. Unlike the position in MJELR v Sliczynski, there was no information before the High Court that

the terms of the suspension had been imposed in the presence of the appellant, such that would have permitted the High

Court to conclude that he knew them, had not denied them, and appreciated that any breach of them would naturally

lead to the suspension being lifted.

It would not appear that the judgments of this Court in the MJELR v. Sliczynski, supra. were brought to the attention of

the learned High Court judge, possibly because of the timescale of their delivery. The Court is satisfied that had the

judgments been brought to the attention of the learned High Court judge, he would have approached the assessment of

the material before him on the basis of those judgments.

I am satisfied in the foregoing circumstances that there was wholly inadequate material before the learned High Court

judge upon which he could properly reach the conclusion that the appellant was a person who came within the ambit of

s.10 of the Act of 2003, as a person who fled Poland.

In the circumstances, the appellant cannot be surrendered pursuant to the provisions of s.16 of the Act of 2003, on the

basis of the information presented to the High Court on this particular European arrest warrant. Having regard to this

finding, is both unnecessary and inappropriate to deal with either of the two additional grounds raised on behalf of the

appellant in the present appeal.

I would allow the appeal and set aside the order of the High Court directing the surrender of the appellant pursuant to

s.16 of the European Arrest Warrant Act, 2003.