Supreme Court dismisses appeal as CJEU rulings clarify EAW in absentia requirements regarding suspended sentence revocation.

THE SUPREME COURT

Record No. 66/2016

Clarke C. J.

O’Donnell J.

MacMenamin J.

Dunne J.

O’Malley J.

In the Matter of the European Arrest Warrant Act 2003

Between/

The Minister for Justice and Equality

Applicant/Respondent

and

Arkadiusz Piotr Lipinski

Judgment of the Chief Justice delivered the 13th February, 2018

1. Introduction

1.1 This Court has already delivered a judgment on this appeal on the 22nd May 2017. A panel consisting of the current formation of

this Court together with the now retired Denham C.J. and Laffoy J. unanimously determined that it was necessary to refer questions

of European law to the Court of Justice, under Article 267 of the Treaty on the Functioning of the European Union, arising out of the

proper interpretation of Article 4a of Council Framework Decision 2002/584/JHA as amended by Council Framework Decision

2009/299/JHA (“The Framework Decision”).

1.2 The facts of this case are fully set out in my judgment delivered on that occasion (Minister for Justice and Equality v. Lipinski

[2017] IESC 26) and it is unnecessary to set them out again. Furthermore, the legal issues which arose on this appeal and the

reasons why this Court felt it necessary to refer questions to the Court of Justice are also set out in that judgment.

1.3 However, after those questions had been referred to the Court of Justice, there were further procedural developments which it is

necessary to address.

2. The Process after the Reference

2.1 The judgment and order of reference of this Court was transmitted to the Court of Justice on the 14th June 2017. On the 31st

August 2017, the Registrar of this Court received a letter from the Registrar of the CJEU, enquiring whether, in the light of judgments

delivered by the Court of Justice in Tadas Tupikas (Case C-270-17 PPU) and S³awomir Andrzej Zdziaszek ( Case C-271/17 PPU) it was

considered necessary for this Court to obtain the answers to the specific questions raised in the reference in these proceedings.

2.2 On the 21st September 2017, the Registrar of this Court indicated to the Court of Justice that the above referenced judgments of

that Court appeared to dispose of at least some of the questions raised in the preliminary reference, and that it was therefore not

necessary to maintain the reference in relation to those questions. The questions concerned will be referred to shortly but were

answered by the judgment of the Court of Justice in S³awomir Andrzej Zdziaszek . It was further suggested that, pending a further hearing

before this Court to hear submissions from the parties regarding maintaining a reference in relation to any remaining questions or

indeed reformulating any remaining issues, it might be appropriate for the CJEU to suspend further action on the reference, in order to

allow this Court to reach a conclusion regarding any potential remaining issues. A further oral hearing took place before this Court on

the 31st October 2017 during which the parties made submissions regarding the question of whether it was necessary to continue

with the reference to the CJEU in the light of existing and pending cases before that Court.

2.3 On the 20th November 2017, the Registrar of this Court indicated to the Court of Justice by further correspondence that, having

considered further submissions from the parties in this case and in light of the CJEU’s pending judgment in Samet Ardic (Case C-

571/17 PPU), this Court confirmed that any outstanding questions in the context of this reference were likely to be answered by the

judgment in Samet Ardic.

2.4 On the 22nd December 2017, the Court of Justice gave its judgment in the case of Samet Ardic. Thereafter, the matter was put

in for mention before me to enable the parties to indicate their position in the light of the judgment of the Court of Justice in S³awomir

Andrzej Zdziaszek and also Samet Ardic. The position of the parties was that it was considered appropriate that this Court should give

judgment on this appeal but that the parties did not wish to make any further submissions to the Court as it was felt that the position

in European law was now clear as a result of the relevant decisions of the Court of Justice.

3. Discussion

3.1 The Court has therefore considered the issues which arose on this appeal in the light of the decision of the Court of Justice in

S³awomir Andrzej Zdziaszek and in Samet Ardic. As is clear from the previous judgment of this Court there were, in substance, two sets of

issues which required to be determined.

3.2 The first concerned the fact that the evidence suggested that Mr. Lipinski, while represented on the occasion of the original

appeal against the order providing for his conviction and imprisonment, was not actually present at the hearing of that appeal.

However, the European arrest warrant in his case did not expressly seek to invoke the provisions of the Framework Decision and its

Irish implementing measures which allows for surrender notwithstanding the absence of the accused in certain circumstances including

where the accused is represented. On the other hand, it was, in substance, clear, on the facts, that the circumstances permitting

surrender were present because Mr. Lipinski was fully represented at and aware of his appeal. The potential difficulty stemmed from

the fact that the European arrest warrant document did not contain that information, as the Framework Decision standard form

suggests that it should.

3.3 This issue was, however, subsequent to the decision of this Court to make a reference on this appeal, the subject of a decision of

the Court of Justice in S³awomir Andrzej Zdziaszek which made it clear that a court could and should assess whether the objective

factors, permitting surrender in the absence of actual presence of the accused at a relevant hearing, were present even though the

European arrest warrant document did not contain an appropriate reference to those facts. Thus, it became clear that this aspect of

the case made on Mr. Lipinski’s behalf could not succeed in the light of the judgment of the Court of Justice in S³awomir Andrzej

Zdziaszek .

3.4 The issue which remained for consideration was the second question which was the subject of a reference on this appeal. As

appears from the earlier judgment on this appeal, Mr. Lipinski initially obtained the benefit of what, in Irish law, might be considered to

be the Polish equivalent of a suspension of part of his sentence. However, that suspension was subsequently revoked because of the

failure of Mr. Lipinski to comply with the terms attached to it and, thus, the original sentence was restored. Mr. Lipinski was not

present at the hearing which led to the revocation of the suspension and the re-imposition of the initial sentence. Indeed, it was the

very fact that Mr. Lipinski had left Poland and come to Ireland, and thus did not comply with the probation type obligations imposed

on him, which led to both the revocation of the suspension and the difficulties in notifying him of the hearing leading to that

revocation.

3.5 The issue which therefore arose was as to whether his absence at the hearing which led to the re-imposition of his original

sentence could be said to breach the in absentia requirements of the Framework Decision and thus preclude his surrender.

3.6 However, the judgment of the Court of Justice in Samet Ardic is clear in that regard. The ruling of the Court is in the following

terms:-

“Where a party has appeared in person in criminal proceedings that result in a judicial decision which definitively finds him

guilty of an offence and, as a consequence, imposes a custodial sentence the execution of which is subsequently

suspended in part, subject to certain conditions, the concept of ‘trial resulting in the decision’, as referred to in Article

4a(1) of Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures

between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be

interpreted as not including subsequent proceedings in which that suspension is revoked on grounds of infringement of

those conditions during the probationary period, provided that the revocation decision adopted at the end of those

proceedings does not change the nature or the level of the sentence initially imposed.”

3.7 It is clear, therefore, that a hearing at which a suspension of sentence is revoked on grounds of infringement of conditions

attaching to that suspension is not considered to be part of a “trial resulting in the decision” for the purposes of the Framework

Decision unless the revocation decision changes “the nature or the level of the sentence initially imposed”. If the consequence of the

revocation is to alter the sentence originally imposed then different considerations may apply. However, it is clear on the facts of this

appeal, and I did not understand counsel for Mr. Lipinski to argue otherwise, that the sole consequence of the revocation order made

by the Polish courts in this case was to reinstate the original sentence without variation.

3.8 It is clear, therefore, that the decision of the Court of Justice in Samet Ardic has clarified the second issue sought to be raised on

behalf of Mr. Lipinski in a manner unfavourable to him so that that ground too must fail.

4. Conclusions

4.1 For the reasons set out in this judgment it is clear, therefore, that, subsequent to the decision of this Court to make a reference

to the Court of Justice, the issues which this Court sought to raise have been definitively determined by the Court of Justice in other

proceedings being S³awomir Andrzej Zdziaszek and Samet Ardic. Those issues have been determined in a manner unfavourable to the

arguments which Mr. Lipinski sought to advance.

4.2 It follows that Mr. Lipinski’s appeal must fail.