High Court orders surrender of respondent to Poland despite double jeopardy and fair trial complaints under EAW Act 2003.

Neutral Citation Number: [2011] IEHC 513

THE HIGH COURT

2010 342 EXT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003

AS AMENDED

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

AND

ANDREZJ ZACHWEIJA

Respondent

JUDGMENT of Mr. Justice Edwards delivered on the 23rd day of November 2011

Introduction

The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 7th July, 2010. The warrant was

endorsed for execution by the High Court in this jurisdiction on the 3rd September, 2010. The respondent was arrested at No. 23, Pine

Grove, Charlestown, Co Mayo on the 11th January, 2011 but does not consent to his surrender to the Republic of Poland. Accordingly,

this Court is now being asked by the applicant to make an order pursuant to s. 16 of the European Arrest Warrant Act, 2003, as

amended, (hereinafter referred to as “the Act of 2003”) directing that the respondent be surrendered to such person as is duly

authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having

regard to the terms of s. 16 of the Act of 2003.

The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as

no admissions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the Act of 2003, both

controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make an order directing that the respondent be

surrendered is dependant upon a judicial finding that they have been so satisfied. In addition, the Court is required to consider, in the

particular circumstances of this case, the first of four points of objection to the respondent’s surrender pleaded on behalf of the

respondent, namely: -

“1. The surrender of the respondent in respect of the matters the subject of the European arrest warrant herein that

issued in Poland on 7th day of July 2010 is prohibited by the provisions of Part 3 of the European Arrest Warrant Act,

2003, as amended, and in particular his surrender is so prohibited by section 37 thereof on the grounds of the breach of

his Constitutional and Convention Rights and in breach of s. 41 on the basis of double jeopardy and in breach of s. 45 on

the basis that he was convicted in absentia within the context of that section.”

The Court was informed that neither the double jeopardy argument, nor three further objections pleaded as grounds 2, 3, and 4

respectively in the points of objection document, were being proceeded with. Accordingly, only the specific objections in respect of

ss. 37 and 45 are being maintained.

Uncontroversial Section 16 Issues

The Court has received an affidavit of Sergeant Richard Taheny sworn on the 25th October, 2011, and has also received and

scrutinised a copy of the European arrest warrant in this case. Moreover, the Court has also inspected the original European arrest

warrant, which is on the Court’s file and which bears this Court’s endorsement. The Court is satisfied following its consideration of this

evidence and documentation that: -

(a) the person before it is the person in respect of whom the European arrest warrant was issued;

(b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;

(c) the European arrest warrant is in the correct form;

(d) the High Court is not required, under ss. 21A, 22, 23, or 24 (as inserted by ss. 79, 80, 81 and 82 of the Criminal

Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the Act of 2003.

The warrant is a sentence-type warrant and the respondent is wanted in the Republic of Poland to serve a composite sentence of 3

years and 4 months’ imprisonment imposed upon him by the Regional Court in Lubin on the 26th November, 2007 in respect of five

offences particularised in the warrant. The issuing judicial authority has invoked the procedure under paragraph 2 of Article 2 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)) in respect of two of the five offences in question, namely offences 2 and 5 respectively, as

set out at Part E.2 of the warrant. In respect of both of those offences the box relating to “swindling” is ticked in Part E. I of the

warrant. As a composite sentence of more than 3 years’ imprisonment has been imposed, the minimum gravity requirements of s. 38

(1) (b) of the Act of 2003 are met in respect of these two offences, and accordingly, the ticked box procedure has been properly

invoked and the Court does not need to concern itself with correspondence.

In so far as the remaining three offences (which are identified in Part E.II of the warrant as offences not covered by the ticked box

procedure) are concerned, the Court must be satisfied both as to correspondence and minimum gravity. The offences in question are

offences 1, 3 and 4 as set out at Part E.2 of the warrant.

The Court has considered offence no. 1 and has been invited by the applicant to find correspondence with all or any of the following

offences, viz theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001; criminal damage contrary to s. 2 of

the Criminal Damage Act 1991; unlawful taking of a motor vehicle, contrary to s. 112 of the Road Traffic Act 1961 (as amended) and

interference with a vehicle contrary to s. 113 of the Road Traffic Act 1961 (as amended). The Court is satisfied to find

correspondence on all of the bases suggested.

The Court has considered offence no. 3, the facts of which are very similar to offence no. 1, and again, the Court has been invited to

find, and does find, correspondence with the offences of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act

2001; criminal damage contrary to s. 2 of the Criminal Damage Act 1991; unlawful taking of a motor vehicle, contrary to s. 112 of the

Road Traffic Act 1961 (as amended) and interference with a vehicle contrary to s. 113 of the Road Traffic Act 1961 (as amended).

As regards offence no. 4, the applicant has invited the Court to find correspondence with an offence of theft contrary to s. 4 of the

Criminal Justice (Theft and Fraud Offences) Act 2001. The Court agrees with this suggestion and is satisfied to find correspondence

on that basis.

Moving to the issue of minimum gravity, the Court is further satisfied, in circumstances where a composite sentence of 3 years and 4

months was imposed, that the requirements of s. 38(1) (a) (ii) are met in respect of each of the offences in question.

In addition, the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) (No. 3)

Order 2004, S.I. No. 206/2004 (hereinafter referred to as “the 2004 Designation Order”), and duly notes that by a combination of s.

3(1) of the Act of 2003, and Article 2 and the Schedule to the 2004 Designation Order, “Poland” (or more correctly the Republic of

Poland) is designated for the purposes of the Act of 2003 as being a State that has under its national law given effect to the

Framework Decision.

Important Additional Information

The European arrest warrant itself did not make clear that the conviction of the respondent was a conviction following a retrial, in

circumstances where the respondent had been previously tried and acquitted, but where his acquittal was quashed upon appeal and a

retrial was directed. These details are, however, set out in further information provided by the issuing judicial authority dated the 2nd

June, 2011. The letter containing additional information stated: -

“With reference to your letter of 24th of May 2011, our District Court in Legnica III Criminal Department, informs you as

follows:

Andrzej Zachweija was present, together with his defender, for trials held on 21 July 2005, 21st Sept 2005, 9 Jan 2006.

He was not present for the trial held on 9 Nov 2005. And the convict’s defender appeared on 23rd Nov 2005, 6th March

2006 and 3 April 2006.

Both the convict’s defender and the very convict were not present when the judgement was announced on 10th April

2006. The judgement [sic] passed by the Regional Court in Lubin on 10th April 2006 concerning this matter was quashed,

and the matter was directed to be retried by virtue of the judgement passed by District Court in Legnica on 27th July

2006, case file No IV Ka 492/06. Andrzej Zachweija was not present for the appeal trial, only his defender was there.

Next, a retrial took place before Regional Court in Lubin. Andrzej Zachweija was present for the trial held on 20th Nov

2006 (he agreed to carry out the trial in absence of the defender) on the 11th Dec 2006, 21st Feb 2007, 10th Sept

2007, 22nd Oct 2007. Being at the trial held on the 22nd Oct 2007, Andrzej Zachweija was informed of a successive

term of the trial to be on the 19th Nov 2007, when the judicial proceedings was closed. He was not for the trial held on

22nd Jan 2007, 28th March 2007, 19th Nov 2007.

The convict did not appear on 26th Nov 2007 when the judgement [sic] was announced. That judgement [sic] sentenced

him to an aggregate penalty of 3 years and 4 months of imprisonment.

Regional Court in Lubin is the first instance court. Means of appeal from Regional Court of Lubin are tried by District

Court in Legnica.”

Evidence Adduced by the Respondent

The respondent has sworn two affidavits in these proceedings, on the 12th April, 2011, and on 25th October, 2011, respectively. The

Court has given detailed consideration to both of these affidavits, as well as to the documents exhibited therein.

In his affidavit sworn on 12th April, 2011, the respondent deposed to the following matters of fact (inter alia, and to the extent

relevant): -

“3. The five offences the subject matter of the warrant concern conduct that took place in August 2001 and

January/February 2002 some nine years ago. It is further alleged in the warrant that I was not convicted in my absence

and that by minutes of a trial held on 19th November 2007 I was summonsed to appear seven days later, 26th

November 2007, when a sentence of three years and four months was purportedly imposed on me. I dispute this. I did

not attend any court on 19th November 2007 and I was not notified of any court session on 26th November 2007.

4. I have been living in Ireland since October 2007. Prior to coming here I lived in Germany and whilst living in Germany I

travelled to and from Poland to attend court cases in relation to matters the subject matter of the European arrest

warrant. I understood all matters to have been dealt with by the time I came to Ireland.

5. I believe I have previously been tried and acquitted in relation to the offences the subject of the European arrest

warrant (Decision of Lubin District Court of 10th of April 2006 exhibited "AZ -- 1".)”

It should be stated here that, for reasons that will become apparent later, counsel for the applicant places considerable significance

upon a statement contained within this exhibit to the effect that Lubin District Court awarded the costs of this trial in favour of the

defendant (i.e. the present respondent) and against the prosecutor (i.e. the Polish State). The affidavit continues: -

“6. I am now well settled in Ireland and my family life is here. I am not working myself but my partner Barbara Masaczak

is working at Aras Attracta Nursing Home in Swinford. We have two children and four-year-old and a one-year-old

(named in the affidavit) whom we are raising together and whom I look after it when my wife is working. I have at all

times been law-abiding in Ireland (letter from local Garda Sgt confirming that exhibited " AZ -- 2").

7. I believe that pursuing me by means of the European arrest warrant the subject matter of the within proceedings for

matters that occurred so long ago is both inappropriate and disproportionate. I believe my whereabouts in Ireland was

well known to the authorities in Poland and in this State and I cannot understand why they have waited so long to

proceed against me particularly given the background to the matter has already referred to.”

Further, in his supplemental affidavit sworn on the 25th October, 2011 the respondent deposed to the following additional matters of

fact (inter alia, and to the extent relevant): -

“3. Further to my previous affidavit I believe I was acquitted of the charges the subject of the European arrest warrant

pursuant to decision of Lubin District Court dated 10th April 2006. However it is my understanding that the prosecutor

claims that this acquittal was quashed after an appeal brought by the prosecutor to Legnica. I understand that the

quashing of my acquittal is purported to have occurred on 27th July 2006, however, I was not present for that event.

4. I accept I was aware it was intended to retry me and I attended the Court on a number of dates after July 2006.

Each time I attended I was told of various excuses for the case not going on such as someone was sick or the case was

not ready. There was no jury involved and I get with this case in the same way as I had the time I was acquitted except

this time I did not have any legal representation. I was not legally represented because I could not afford to pay again

for legal representation and I believe that after my previous reasoned acquittal I would be found "not guilty" again. I was

not aware and I was not advised that I was in jeopardy or that I could have legal representation assigned to me and

paid for by the government. I did not "agree" to carry out the trial in the absence of a lawyer and I would have

accepted such representation had I known or had it been offered.

5. I accept I was in the courts for the trial on 22nd October 2007 but I was not aware of the scheduled trial on 19th

November 2007. I was not informed about that date or time of a Court on 19th November and I was not informed or so

aware in relation to the purported trial on 26th of November 2007.

6. For the sake of certainty I say the 22nd day of October was the last day I was in the court in Poland. I received a job

offer two weeks later in Ireland and I jumped at the chance as it offered me hope and certainty. I resolve to manage

with my case like I did when I was in Germany. I had asked family members to let me know if any news came through in

relation to further adjourned dates. I had been so notified in the past and I was in a position to balance all my affairs in

conjunction with the court case. Family members had notified me in the past, but this time I believe my family

members heard nothing, they had no news for me and were unable to inform me of the situation.

7. I went on to Poland for Christmas 2007 and I enquired of my mother whether there was any news for me and I was

informed that a letter had arrived from the Court and I noted it was a letter to pay the costs of the case. It was not a

fine and it contained no details of any conviction or of any penalty. I went to the Court office to enquire about my case

and I was informed by a lady there that it looks like this case was finished, but she didn't know anything about the

details. I then went to see a person whom I understood to be the President of the Court and I sought clarification. He

indicated he could not help me. I was simply told I would need a lawyer.

8. I then contacted my old lawyer, Beata Matysek, who defended me when I was acquitted. She told me that she would

look into it and having done so she came back to me and informed me she could not locate any record of my case and

could not find out anything regarding the outcome and in the circumstances saw no impediment to my return to Ireland.

9. For the sake of certainty I categorically state I was not then and I am not running away from justice. Whereas

standing back and looking at the dates I can now see how somebody might think otherwise, I say I most genuinely was

not aware of any trial date in November 2007 or thereafter.

10. I had no legal representation and I never for one second thought I would be convicted. If I had any concern about a

conviction I would not have ran away. I was always committed to defending myself and never had trouble doing so,

even when I was living outside of Poland.”

Submissions on Behalf of the Respondent.

In the course of his submissions, counsel for the respondent, Mr. Kieran Kelly B.L., relied upon s. 45 of the Act of 2003 which states:

-

“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.”,

Relying upon that provision, counsel contended that his client should not be surrendered, and that indeed his surrender was prohibited

because, in counsel’s submission, the evidence before the Court establishes that he was, in the words of the section, “not present

when he or she was tried for and convicted of the offence specified in the European arrest warrant” and that he was “not notified of

the time when, and place at which, he or she would be tried for the offence” and no undertaking as to a retrial has been provided.

Counsel for the respondent has urged upon the Court, in effect, that it should adopt a narrow and strict interpretation of what is

meant by the word “trial” in s. 45 of the Act of 2003, and that the Court should interpret it as being confined to only the date or

dates on which the Regional Court in Lubin was engaged in a hearing by way of retrial, and considering the substantive issue as to

the respondent’s guilt or otherwise of the offences with which he was charged. Further, while counsel for the respondent concedes

that his client may have been present on some dates on which the case was mentioned solely for procedural purposes, counsel

contends that on any dates on which the matter was mentioned solely in connection with some procedural aspect of the case the

Court should regard his client as not having been on trial.

He has further urged it is not possible on the available information for this Court to say precisely when the trial of his client

commenced, but that it is clear that he was at trial on the 19th November, 2007, and was not present, and also that judgment was

announced on the 26th November, 2007 when, again, he was not present. Further, the respondent’s own evidence, which is not

engaged with or contradicted, is to the effect that although he was present on the 22nd October, 2007 this was the last date on

which he attended court and he was not notified or made aware either that his trial would take place on the 19th November, 2007, or

that a decision would be announced on the 26th November, 2007.

It should be stated that counsel for the applicant, Ms. Cathleen Noctor B.L., disputes Mr. Kelly’s view of the evidence and the

correctness of his submission as to the facts, and the Court will deal with Ms. Noctor’s counter contentions later in this judgment.

As regards the law, counsel for respondent has drawn the Court’s attention to a decision of Kearns P. in the High Court in a case

entitled Jason O’Brien v District Judge John Coughlan and the Director of Public Prosecutions [2011] I.E.H.C. 330 (Unreported, High

Court, Kearns P, 29thJuly, 2011). That case concerned an application for an order of certiorari to quash a conviction and penalty

imposed on the applicant in absentia by the first named respondent. The facts were that the applicant was before the District Court

for sentencing in a no insurance case. Although his solicitor was in attendance, the applicant himself was absent and no explanation

for his absence was provided. The applicant’s solicitor applied for an adjournment which was refused. He then submitted to the first

named respondent that he should issue a bench warrant rather than proceed in the applicant’s absence. That suggestion was also

rejected. The first named respondent then proceeded to summarily convict and sentence the applicant in absentia. The applicant had

54 previous convictions for related road traffic offences, and in all the circumstances the District Judge imposed a sentence of five

months’ imprisonment and disqualified the applicant from driving for forty years. Kearns P. granted certiorari on the following basis: -

“It is regrettable aspect of the administration of justice in modern times that both prosecuting authorities and the

courts are expected to at every juncture to facilitate defendants who themselves neglect or decline to co-operate in

the procedural requirements which require to be observed by both prosecution and defence so as to permit the criminal

justice system to function effectively. It is thus by no means uncommon to hear that members of An Garda Síochána

are required to devote a great deal of time and energy to the execution of bench warrants where persons remanded on

bail fail to turn up for designated sittings or simply ignore the process altogether. It is often later argued or contended

that it was an injustice for the court to proceed further in the absence of the person accused or charged with a

particular offence.

The applicant in this case was present in court on the date when his trial date was fixed. I therefore reject the

purported explanation offered now in the context of the present application to explain non-attendance.

I think in the circumstances the District Judge was entitled to proceed with the trial and reach a conclusion as to guilt or

innocence.

However, I am satisfied a different consideration must arise where the District Judge then intends to impose a custodial

sentence which is something more than a short term custodial sentence. A sentence of five months imprisonment must

be considered as a sentence of substance. That being so, this Court is constrained to follow the decision of the Supreme

Court in Brennan v. Windle [2003] 3 I.R. 494 which stated firmly that where the sentencing judge has in mind to impose

a prison sentence of some length in circumstances where the offence in question would not invariably attract a prison

sentence, the failure to at least to ascertain if there is a bona fide reason for non-attendance or to make some effort to

secure the attendance of the applicant and hear him before proceeding to impose the sentence does amount to a

breach of fair procedures and a breach of the requirements of constitutional justice.

While a brief custodial sentence may not give rise to such a requirement, I believe such a requirement does arise in this

case because of the significant sentence the District Judge had in mind to impose. Accordingly, I would uphold the

applicant’s submission in that, having found the applicant guilty, the respondent should, prior to the imposition of

sentence, have either adjourned the case or issued a bench warrant to compel the presence of the applicant before

imposing sentence.”

Arguing by analogy, counsel for the respondent in the present case has submitted that it is precisely because it would be a breach of

fair procedures and a breach of the requirements of constitutional justice for a court to impose a lengthy prison sentence on an

accused in absentia, in circumstances where he has not been notified of, and is unaware of the court hearing in question, that the

framers of the Framework Decision, and in particular Article 5.1 thereof, and also the Oireachtas in drafting s.45 of Act of 2003 to

give effect to Article 5.1 of the Framework Decision in Irish domestic law, have required that before a person is surrendered to serve

a sentence imposed upon him/her in absentia it must be established that he/she was notified of the time when, and place at which,

he or she would be tried for the offence, alternatively that the issuing state should provide an undertaking as to a retrial.

Counsel for the respondent has submitted that what is being sought in this case is to have the respondent surrendered to the issuing

state in circumstances where he was tried and convicted in absentia in circumstances that amounted to a breach of fair procedures

and a breach of constitutional justice, and that for those reasons his surrender should be refused both under ss.37 and 45 (which

appears within Part 3 of the Act of 2003), in circumstances where there is no undertaking as to a retrial.

Counsel for the respondent also places reliance on the fact that he was not legally represented at the retrial as a further basis for

contending that he was tried and convicted in circumstances that amounted to a breach of fair procedures and a breach of

constitutional justice

Submissions on Behalf of the Applicant.

In response to counsel for the respondent’s submissions, counsel for the applicant has urged upon the Court that regard should be

had in the first instance to the provisions of s. 45(a) of the Act of 2003, and that it is only in circumstances where a respondent

satisfies the requirements of s.45(a) that it is then necessary to move on and consider whether the requirements of s.45(b) (i) [or s.

45(b)(ii)if relevant, which it is not in this instance] are satisfied. Ms. Noctor contends that, contrary to Mr Kelly’s submission, the

requirements of s. 45(a) are not in fact satisfied in the present case.

Section 45 (a) requires that the respondent should not have been present when he “was tried for and convicted of the offence

specified in the European arrest warrant.” Counsel for the applicant submits that the words “tried for and convicted” must be their

clear and literal meaning and thus read as referring to one cumulative process, and not as two separate and distinct processes. In

counsel’s submission, if the Oireachtas had intended the latter, the provision would have read “tried for or convicted”. Accordingly,

she contends that unless a respondent has been tried and convicted (the court’s emphasis) in totality in his absence he is not a

person to whom s. 45 applies.

Counsel for the respondent contends that it is indisputable from the information before the Court that the retrial of the respondent

before the Regional Court in Lubin was concluded on the 19th November, 2007 and that the respondent was convicted on the 26th

November, 2007 when the Court announced its decision. However, she relies upon the passage within the additional information dated

the 2nd June, 2011 where it states: -

“Being at the trial held on the 22nd Oct 2007, Andrzej Zachweija was informed of a successive term of the trial to be on

the 19th Nov 2007, when the judicial proceedings was closed.”

In counsel for the applicant’s submission, this clearly indicates that on the 22nd October, 2007, on which date according to the

issuing judicial authority, and indeed on his own admission, the respondent was present, the trial was underway and, further, that it

was adjourned part heard from that date to the 19th November, 2007 for the purpose of being concluded. The reference to “a

successive term of the trial to be on the 19th Nov 2007” clearly imports an intention to resume a case at hearing on that date. The

respondent was present on the 22nd October, 2007 when the date for resumption of the part heard trial was set, and accordingly he

was notified in person of the relevant date on which the substantive hearing was concluded. The fact that he was not present when

the decision was announced on the 26th November, 2007 is irrelevant, says Ms. Noctor, in circumstances where he was present for

that part of the substantive hearing that occurred on the 22nd October, and he was notified in person concerning when it would be

concluded by virtue of being present in court at the material time.

As regards the issued raised about the absence of legal representation during the respondent’s retrial, counsel for the applicant makes

the further point that it is mere assertion on the part of the respondent that he was not informed about his right to a state appointed

lawyer, and also that he was unable to afford to engage a lawyer privately. It was urged upon the court that it should view these

mere assertions sceptically in circumstances where no cogent supporting or corroborative evidence had been adduced, and

particularly where a document exhibited by the respondent in one of his affidavits established that he was in fact privately

represented at his first trial and that following his acquittal he was awarded the costs of that trial against the Polish State. It is

suggested that in such circumstances, his contention that he was unable to afford to engage a private lawyer for his retrial lacks

credibility.

The Court’s Decision

The Court has considered the evidence in this case and the parties’ respective submissions with respect to the specific objections

raised by the respondent. The Court is in agreement with counsel for the applicant that the words “tried for and convicted” in s.

45(a) of the Act of 2003 refer to one cumulative process, and not to two separate and distinct processes. In the Court’s view s. 45

must be construed as not applying to a respondent unless he has been tried and convicted in totality in his absence. That said, the

Court accepts that the concept of a trial imports or connotes that part of a criminal proceeding where the Court is seized of the issue

as to whether the accused is guilty or otherwise of the charge(s) preferred against him, and that it does not refer to mentions solely

in connection with some procedural aspect of the case. In the present case the Court is satisfied on the totality of the evidence

before it, and with particular reliance upon the additional information dated the 2nd June, 2011, that on the 22nd October, 2007, on

which date the respondent was present, the trial was underway and, further, that it was adjourned on a part-heard basis from that

date to the 19th November, 2007 for the purpose of being concluded. Accordingly, he was not tried and convicted in totality in his

absence and so s. 45 does not apply in his case. Moreover, although it is perhaps no longer of specific relevance in the light of the

finding just made, the Court is also satisfied that the respondent was in any event present in Court on the 22nd of October, 2007

when arrangements for resumption of the trial were made, and accordingly, the Court is satisfied that the respondent was notified in

person of the relevant date, place and time at which the substantive hearing was to be concluded. In arriving at this conclusion the

Court relies, inter alia, upon the presumption that the issuing State has respected, and will continue to respect, the fundamental

rights of the respondent, including his right to fair procedures and constitutional justice. As the respondent has failed to adduce

cogent evidence suggesting the contrary, the presumption in question has not been displaced. In that regard the respondent’s mere

and unsupported assertions are insufficient to displace the presumption and do not amount to evidence of sufficient cogency to put

the Court upon its enquiry and to cause it to seek to look behind the statements contained in the warrant and the additional

information dated the 2nd of June 2011. In addition to relying on the presumption, the Court also accepts the point made by counsel

for the applicant that aspects of the respondent’s evidence lacks credibility and should on that account be regarded with scepticism.

The Court does not consider that respondent’s reliance on the decision in Jason O’Brien v District Judge John Coughlan and the

Director of Public Prosecutions [2011] I.E.H.C. 330 (Unreported, High Court, Kearns P., 29th July, 2011) is apposite in the

circumstances of the present case. Certiorari was granted in the O’Brien case not because the applicant in that case was convicted

in absentia, but because the District Judge, having convicted him, proceeded to then sentence him in absentia and to impose a

substantial prison sentence upon him, without either adjourning the case to facilitate, or issuing a bench warrant to compel, the

presence of the applicant before imposing sentence. However, that case has no direct application to a request for surrender on foot

of a European arrest warrant. Neither does it provide a rationale for the s. 45 requirement by analogy, as counsel for the respondent

suggests it does. It does not do so because that case concerned a sentencing hearing and it has been held by Peart J. in Minister for

Justice, Equality & Law Reform v McCague [2010] 1 I.R. 456 that s. 45 of the Act of 2003 does not apply to a sentencing hearing as

opposed to a trial hearing. In the course of his judgment Peart J stated at p.485: -

“In my view the terms of s.45 of the Act are very specific and unambiguous. It refers to not being present for the trial

of the offence and not to being present (sic) when sentenced for the offence. Given the terms of Article 5.1 of the

Framework Decision this cannot even be seen as an accidental omission. In any event, there was no requirement that

legislative effect be given to Article 5.1 at all. It is an optional provision for any member state to make provision for in

its domestic legislation giving effect to the Framework Decision. On the facts of this case no undertaking is required in

respect of a re-trial given that the defendant was notified of the date and place of his trial, and thereafter chose to be

absent. In view of the clear words used in this section, the right to be present at a sentence hearing, separate from the

right to present at trial, as referred to in relation to the respondent’s arguments under s. 37 of the Act, does not come

into play under this point of objection under s. 45 of the Act.”

Messrs Farrell & O’Hanrahan in their excellent work entitled “The European Arrest Warrant in Ireland” (Clarus Press, 2011) have

recorded in a footnote on p.209 of their work that Peart J’s judgment in McCague was subsequently affirmed ex tempore by the

Supreme Court.

In so far as “Part 3” issues generally are concerned, the issue for the Court is whether surrender of the respondent in the particular

circumstances of the case would be incompatible with the State’s obligations under the Constitution or the European Convention on

Human Rights and Fundamental Freedoms. The Court is required to be forward-looking, and it is not entitled to look behind, or to

review, or to act as a court of appeal from, a decision of a court in the issuing state. In so far as the respondent contends that his

retrial was unfair by virtue of the fact that he was unrepresented, this is a matter he should have pursued, or, if he is not out of

time, should still attempt to pursue before the courts of the issuing state. The availability of a remedy before the courts of the issuing

state is to be presumed by virtue of the general presumption that the issuing State has respected, and will continue to respect, the

fundamental rights of the respondent. While the Court considers the respondent’s assertions concerning the absence of legal

representation during his retrial, and the reasons for that, lack credibility in any event; even if that were not so, this Court would not

be justified in intervening where, as here, the complaint relates to the alleged unfairness of a trial that has already taken place in the

issuing state. The Supreme Court, per Murray C.J., as he then was, in Minister for Justice Equality and Law Reform v Brennan [2007]

3. I.R.732 stated at pp. 743 - 744: -

“[39] The manner, procedure and mechanisms according to which fundamental rights are protected in different

countries will vary according to national laws and constitutional traditions. The checks and balances in national systems

may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal

systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for

example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a

trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury

in this country for a particular offence could not in my view, be a basis for refusing to make an order for surrender

solely on the grounds that in the requesting state he or she would not be tried before a jury. The exceptions which we

have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place

without a jury even though it is constitutionally guaranteed for most trials in this country.

[40] That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to

consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights.

There may well be egregious circumstances, such as a clearly established and fundamental defect in the system of

justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It

would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The

sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a

requesting state according to procedures or principles which differ from those which apply, even if constitutionally

guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should

be refused pursuant to s. 37(2) of the Act.”

This Court has no evidence in this case as to the existence of the type of egregious circumstances spoken of by the former Chief

Justice.

In all the circumstances of the case, the Court is not disposed to uphold the specific objections raised by the respondent, and the

Court will make an order for the respondent’s surrender to such person as is duly authorised by the issuing state to receive him.