Judgment Title: Minister for Justice Equality & Law Reform v Tokarski Neutral Citation: [2012] IESC 61 Supreme Court Record Number: 135/12 High Court Record Number: 2011 328 EXT Date of Delivery: 06/12/2012 Court: Supreme Court Composition of Court: Denham C.J., Murray J., O'Donnell J., Clarke J., MacMenamin J. Judgment by: Murray J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No. 135/12] Denham C.J. Between/ MINISTER FOR JUSTICE & EQUALITY Applicant/Appellant and
ARKADIUSZ TOKARSKI Respondent Judgment of Murray, J. delivered on the 6th day of December, 2012 Subsequently a Notice of Appeal was lodged by the Minister setting out thirteen grounds of appeal, virtually all of which related to the point of law which had been certified by the learned trial judge. One ground of appeal asserted that the learned trial judge erred in law in refusing to accede to an application on behalf of the Minister to seek further information from the issuing state pursuant to s.20(1) of the Act of 2003. In fact, subsequent to the High Court decision and before this appeal came up for hearing, the Minister sought and obtained further information and material from the Polish authorities and then brought a Motion seeking liberty to place that material before this Court as part of the appeal. That Motion was dealt with by this Court at the beginning of the hearing of the appeal and the Court decided to admit the material de bene esse.That further material does not significantly add to the facts of the case as found in the High Court, although it bore out the narrative according to which the respondent, on two separate occasions when interrogated by the police in Poland, had admitted or “pleaded” to the offences which were alleged against him, and agreed to a penalty by way of imprisonment which could be imposed on him. That narrative is referred to in greater detail below, but the Court, in admitting the material de bene esse, did not have to address any particular issues concerning the admissibility of the material in question or what the material may be deemed to prove. Accordingly, the only issue before the Court in the appeal is that referred to in the certificate of the High Court. It may be convenient, at this point, to specify that the net issue in this case arises by virtue of the fact that the respondent was convicted and sentenced by a Polish court on the 1st December, 2009. This was the first and only occasion on which the criminal proceedings were dealt with by a court in Poland. The respondent was not present in court, nor was he legally represented. For the reason that the respondent had admitted or “pleaded,” as it is put in the English translation of the Polish documentation, to the offences and agreed to the prison sentence which could be imposed, in the course of interrogation conducted by the police and prior to the preparation of an indictment, Polish law did not render the respondent’s subsequent conviction and sentence to be one which is “in default”, as it was put. It should be noted, however, that the fact that the Polish court’s decision was given in absentia, without proper notification to the respondent within the meaning of s.45 of the Act of 2003, is not at issue between the parties. In general terms the Minister does argue that, in the light of Polish criminal procedures, and in particular the “plea bargaining” that he engaged in, the respondent cannot maintain that he was “tried for and convicted of an offence” before the Polish court within the meaning of s.45(a) of the Act of 2003, and therefore the finding of the learned trial judge that he had been tried and convicted in absentia was wrong in law. Again stating the position of the respondent in general terms, it is his contention that, as the High Court concluded, there was objectively speaking a trial and conviction within the meaning of s.45 which took place in his absence. Accordingly, he submits that he was objectively, and in law, “tried and convicted” within the meaning of s.45(a) of the Act of 2003 and therefore the High Court, in finding that he had been tried and convicted in absentia, properly refused to make an order for surrender by reason of the provisions of section 45. Before setting out in detail the background facts and circumstances surrounding this particular case, I think it appropriate at this point to refer to the terms of s.45 of the Act of 2003 in order to indicate more precisely the nature and ambit of the question of law which is referred to in the certificate of the High Court. One should note that since the proceedings before the High Court s.45 of the Act of 2003 has been amended. It is not however in dispute between the parties to the appeal that it is s.45 as it then stood which remains the relevant and applicable provision to this case. Section 45 of the Act of 2003
(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.” Framework Decision on the European Arrest Warrant
1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment[.]” (emphasis added) Second, the issuing judicial authority in Poland has not given an undertaking that upon surrender that the respondent would be retried or given an opportunity of a retrial in respect of the offences in question. This appears to be because Polish law does not permit an application to be made for a retrial in a case, such as this, in which the conviction and sentence of the accused has occurred in circumstances where he has expressly admitted or “pleaded” guilty to the offences and agreed the penalty to be imposed during the course of his interrogation and prior to the formal preparation of the indictment. Accordingly, it is common case that if the Court were to conclude that the respondent was “tried for and convicted of” the offences in question before the Polish court the absence of such an undertaking means that his surrender cannot be ordered. Background The European Arrest Warrant Certain background circumstances pertaining to the conviction and sentence of the respondent are given at paragraph F of the warrant. The relevant parts are as follows:
The respondent lodged in the High Court objections to his surrender, inter alia, on the grounds that his surrender be refused by virtue of s.45 of the Act of 2003. It appears that the Department of Justice then sought, prior to the High Court hearing, further information from the requesting judicial authority. Further information concerning the circumstances of the arrest, charge and conviction of the respondent was subsequently provided by the requesting judicial authority by letter dated the 22nd February, 2012. The letter provides an explanation regarding Polish criminal procedure in the following terms:
A second interrogation was conducted on the 12th October, 2009, again by the police. On that occasion the respondent had also been informed of his right to be assisted by a defence counsel, but did not use that right. On that occasion he was informed of the contents of article 138 of the Polish Criminal Code which provides that a person in the respondent’s position “who is residing abroad, shall be obligated to designate an addressee for the service of documents in Poland. If he fails to do so, a document sent to his last known address in Poland, or with no such address, is filed with the record of the case, and deemed to have been served”. The respondent designated a particular address in Poland during the course of his interrogation. In relation to this second interrogation, the letter continues to state that “During this interrogation, conducted by the police as well, Arkadiusz Tokarski pled guilty again to the charges levelled against him and expressed his readiness to voluntarily submit to penalty. After consulting the state prosecutor, who was contacted during the interrogation (he) agreed to the penalty which he was ready to suffer, namely:
[4] months imprisonment for the second offence, The letter adds that “It was an unconditional penalty, and therefore [he] agreed himself to serve it in a penal institution.” The indictment was then drawn up and, as the letter puts it, “enclosed with a prosecutor's request for inflicting upon Arkadiusz Tokarski the agreed and settled penalty. It entails that Arkadiusz Tokarski knew the circumstances of his conviction and that his conviction would be adjudged by court. The more so, in the Polish law it is exclusively the court which is in power to convict and sentence for committing offences.” The letter then notes that “The sentence was adjudged by the court on 1st December 2009 - (it was the very first legal action taken by court in this case).” It then adds that “Due to the fact that Arkadiusz Tokarski did not receive the summons to appear in court as required, the aforementioned article 138 of the code of criminal procedure was applied.” The respondent was in Ireland at the time. The letter also explains that the attendance of the respondent before the court when the court “adjudged the sentence” which he had agreed to during the preliminary proceedings was not necessitated. It further continued that “Mr Tokarski knew the circumstances of his conviction and his absence from the court hearing was the consequence of his deliberate decision according to his own will.” There follows an important passage “For the record, I would like to emphasise that the presence of the convicted would only be required if the court did not approve of the conditions of conviction to have been agreed on by him before. However, in the said case all the circumstances of the conviction were accepted by court. Accordingly, the judgment (sic) issued in the above circumstances is not judgment (sic) passed in default.” It was emphasised that the respondent knew the precise charges levelled against him, had been given an opportunity to answer them and that “he knew the case [would] be presented to court, and finally, he knew that only the penalty to which he had agreed upon would be imposed on him (if the court wished to impose another penalty it would be obligated to order another hearing). Therefore, whereas the above sentence was not passed in default, it is not feasible to review the case.” Finally, the letter makes reference the possibility of an extraordinary measure of appeal provided that certain conditions are fulfilled by the respondent, however this is not of relevance to that at issue in this appeal. In relation to the additional material subsequently furnished to this Court (admitted de bene esse), it essentially bears out, as noted above, the now uncontested narrative of what occurred during the two police interrogations and, in particular, that the respondent signed a document which confirmed that he was pleading guilty to the two offences in question and that he agreed to the penalty suggested by the prosecutor as proper penalties for the offences committed. The additional material furnished to this Court also included the indictment which was prepared following the aforementioned interrogation process. The indictment specifies the charges against the respondent and also provides a summary of the factual circumstances surrounding each offence. Submissions on behalf of the Appellant It was at all times acknowledged on behalf of the Minister that the respondent was not notified of the proceedings before the district court in Poland on the 1st December, 2009, the sole judicial adjudication on his case, within the meaning of s.45 of the Act of 2003. The issue, therefore, turns on the submission made on behalf of the Minister that the conviction and the imposition of the sentence on the above date by the Polish court did not amount to a “trial” for the purpose s.45 of the Act of 2003. It is accepted as an “indisputable fact” by the Minister, that the respondent was convicted of the offences before the Polish District Court. The Minister rejected the argument, however, that the respondent was in fact “tried” for the offences on the basis that those proceedings did not constitute a “trial” as defined by Irish law, for the simple reason that the proceedings in Poland did not involve the determination of the guilt or otherwise of the respondent. Counsel for the Minister relied on the dictum of Finlay C.J. in Goodman International v. Hamilton [1992] 2 I.R. 542 where he stated at p. 588:
In Ciechanowicz counsel for the respondent, the person whose surrender was being sought accepted that the decision in McCague was binding on the court and that in that case s.45 was correctly interpreted. In Zachweija, as mentioned above, the learned trial judge followed the dictum of the High Court in the McCague case, and observed that Messrs Farrell and O’Hanrahan, The European Arrest Warrant in Ireland (Clarus Press, 2011) have recorded, in a footnote at p.209, that the judgment in McCague was subsequently affirmed ex tempore by the Supreme Court. I think it should be noted at this stage that the ex tempore judgment given by this Court in the McCague case did not affirm the decision of the High Court on the particular point concerning the meaning of a trial within the meaning of s.45(a) of the Act of 2003. The sole issue decided in that appeal, upholding the decision of the High Court on the point, was whether the person concerned had been “permitted to attend” the trial in respect of the offence concerned within the meaning of s.45(b)(ii). This Court upheld the finding of fact of the learned High Court judge in that case that the respondent in the proceedings had not established as a fact that he was “not permitted” to attend his trial. No reference was made in the judgment of this Court to the meaning of ‘trial’ for the purposes of s.45 or to any issue arising under s.45(a) which is the provision in question here. It was submitted by counsel, in the light of the authorities and particularly the McCague decision, that it is “the hearing as to the guilt or innocence” which constitutes a trial and which requires the presence of the accused. It was also submitted that the term trial should be given the meaning that is attributed to it in Irish law. Counsel made reference to the forms of trial in this country, with particular emphasis on trial by jury. Submissions on behalf of the Respondent It was also submitted that s.45 must be interpreted in the light of Article 5 of the Framework Decision which it seeks to implement. Article 5(1) expressly applies to the underlying judicial decision resulting in the imposition of a sentence where the person concerned has not been summoned in person or otherwise informed of the place and date of the hearing, which lead to the decision rendered in absentia. This further bears out that s.45 must apply in a case, such as this, where the underlying judicial decision, to convict and punish the accused, was made in the absence of the requested person. It was submitted that the cases cited by the appellant, namely, the McCague, Ciechanowicz and Zachweija cases, are not in point since the facts in each of those cases was different and the accused had been notified about the time and place of at least part of the respective trials. Counsel submitted that the learned trial judge was correct in concluding that the proceedings before the Polish court in this case constituted a trial and conviction within the meaning of s.45(a), and the fact that there has been a pre-trial “plea bargaining” procedure is not a basis for creating an exception to the application of section 45. The Judgment of the High Court
Secondly, the Court believes that the evidence contained in the additional information dated the 22nd of February 2012 establishes that that is also the position in Poland. When the document in question refers to the fact that the respondent "pled guilty" before the police, and again later on before the state prosecutor, it is manifest that he merely agreed that when brought before a court he would plead guilty in return for the authorities recommending to the court the imposition a specific pre-agreed penalty. It is abundantly clear that he was not actually arraigned.”
I agree with that conclusion of the learned trial judge which he based on the facts and circumstances of the proceedings before the Polish District Court. He was incidentally also the trial judge in the Ciechanowicz and Zachweija cases relied on by the Minister in which the dictum in McCague was applied by him. He had no difficulty in finding on the facts in this case that the respondent had been tried and convicted by the Polish court. A number of uncontested facts emerged from the narrative given by the Polish authorities concerning the procedures which were followed during the police “interrogation”, as it is put in the English translation, and the subsequent judicial proceedings, or “lawsuit stage”. These are:
(b) He also formally agreed to a sentence which the prosecutor would request the court to impose for those offences. (c) He signed documents which confirmed his agreement as aforesaid. These procedures were carried out under the supervision of a prosecutor who was consulted and agreed on the sentence which the court would be asked to impose. (d) Subsequent to that the indictment was drawn up and, as it was put, “enclosed with a prosecutor’s request for inflicting upon [the respondent] the agreed and settled penalty”. (e) The matter was brought before the Polish District Court and it was at this point, that the judicial process, or the “lawsuit”, was commenced. (f) The matter was then listed for hearing before the Polish District Court. This constituted the sole instance in which there was a judicial determination in Poland in his case.
3(a) At the point when the proceedings were brought before the Polish District Court the respondent did not stand convicted of any offence, or subject to any sentence of imprisonment. (b) It was by virtue of the judgment of the court (at the hearing at which the respondent was not present) that he was convicted by the court and sentenced to a term of imprisonment which corresponded to that to which he had earlier agreed.
Equally, it is clear that the Polish court had, at the same hearing, to try an issue as to the sentence which should be imposed on the respondent. The judicial authority has pointed out, in the information provided, that the Polish court had jurisdiction to impose a greater sentence than that which had been agreed, having considered all the matters before it, including the facts recited in the indictment. If it did do so it would have had to adjourn the matter to allow, or ensure, the presence of the accused. Consequently, it appears to be open to a Polish court in cases such as the present to conclude that a person should not be convicted or should be given a sentence different from that which had been agreed with the prosecutor, if the circumstances of the case lead it to such a conclusion. In short, the Polish District Court had to determine whether, in all the circumstances on the basis of the matters placed before it, the respondent should be convicted and, if so, what the sentence should be. The fact that the court determined in this case that the conviction and sentence should be in accordance with the earlier formal admissions he made to the police and prosecutor and the agreed sentence does not take away from the fact that those issues were tried and determined by it. The learned trial judge in coming to that conclusion correctly emphasised at p.13 of his judgment two particular statements made by the requesting authority in the information provided, namely: “…that his conviction would be judged by court. …” and “The sentence was adjudged by court on 1st December 2009 …” . McCague Case The facts and circumstances of the McCague case were quite different. As appears from the judgment of the High Court in McCague, the accused’s trial had been fixed for the 10th January, 2005. His solicitor and counsel attended at the trial on that date submitting, on instructions, that the accused was not fit to come to court, and that he could not do so due to legitimate fears for his safety. The trial judge in that case directed that certain steps should be taken with a view of ascertaining the factual position concerning the accused’s unwillingness and/or inability to attend. The matter was adjourned to the 11th January, 2005, and on that date the trial judge in the English court ruled that the reasons advanced for the non-attendance of the accused at the trial were vague and unsatisfactory. The accused was fully informed by his solicitor of the ruling of the court. The matter was listed for trial on the 13th January, and the accused did not attend but was represented by his solicitor and counsel who made further submissions as to why the trial should not go ahead in the absence of the accused. According to the High Court judgment the trial court in England concluded that the accused was deliberately absenting himself from his trial and directed that trial commence on the 19th January, 2005 even if he was absent. At that point his solicitor and counsel withdrew from the case and the trial in due course proceeded in the absence of the accused. The accused was duly convicted but sentencing was postponed to a much later date. In the High Court judgment in the McCague case (in which the accused was the respondent) it is recited that there was a gap of some months between the trial itself “which commenced on the 19th January, 2005 and the sentence hearing in June, 2005”. No issue concerning the application of s.45(a) or indeed (b)(i) of the Act of 2003 arose concerning the presence of the accused at his trial arose in McCague. The issue concerning his trial related to a distinct contention that the refusal of the trial judge in England to adjourn the trial because of the accused’s difficulties was a denial of constitutional rights and rights under the European Convention on Human Rights, and that he had not been “permitted to attend” his trial within the meaning of s.45(b)(ii). Thus, in the McCague case the person whose surrender was sought was notified of the hearing which led to his conviction within the meaning of s.45 and no issue arose under that section as to whether a trial had taken place. The only complaint raised by the respondent in the McCague case concerning s.45(a) and (b)(ii) related to his sentencing some months later which he differentiated from his trial. He maintained that he had not been notified within the meaning of s.45 of the sentencing hearing and therefore, in the absence of the appropriate assurances, his surrender should not be ordered. In other words, he accepted for the purpose of this particular question that his absence from the trial at which he was convicted was not an issue, only his absence from the sentencing hearing. On this issue the learned trial judge in the McCague case upheld a submission of the applicant, the Minister, that the respondent had failed to provide any evidence that he was not made aware by the prosecution of the date on which his sentencing hearing would take place. He found that the respondent “has not even provided a bare assertion of facts to support that point of objection”. The learned trial judge correctly concluded that it was not sufficient to simply raise a point by way of objection in the pleadings and offer nothing in support of such assertion. The trial judge concluded “Strictly speaking, that is sufficient to dispose of the point raised by the respondent in relation to the failure to notify him of the date of his sentencing hearing.” That was a reference to the s.45 ‘in absentia’ point. It was only then that he went on to deal, obiter, with two separate submissions, the first of which concerned a denial of constitutional rights and rights under the European Convention by virtue of being sentenced when he was not present. Then he went on to deal with s.45(a) as it might apply to the hypothetical assumption that the respondent although notified of his trial, had not been notified of his separate sentencing hearing having regard to the particular facts of the case. It was on those facts and circumstances that the learned High Court judge in McCague delivered the dictum, relied upon by counsel for the Minister, distinguishing between the trial at which the respondent was convicted and the later sentencing hearing. As outlined above, the facts here are quite different from the facts in the McCague case, and I do not consider it necessary to pronounce on the dictum of the learned High Court judge made in the foregoing circumstances, and particularly where the respondent made no complaint under s.45(a) or (b)(i) concerning his absence from the hearing at which he was tried and convicted and confined that point to his absence from the much later sentencing hearing. As already pointed out, and emphasised by the learned trial judge in the present case, here the respondent was absent when he was convicted by the Polish court. In these circumstances the dictum in the McCague case has no application to the circumstances of this case. While that dictum was applied by the High Court in the Ciechanowicz and Zachweija cases the facts were also quite different to this case. In each of those cases the accused had been present at or been notified of the actual trial at which he was convicted and the decisions which were alleged to have been taken in absentia related only to a subsequent sentencing process. Some Observations on Section 45 In my view, tried and convicted in its ordinary meaning applies to what factually happened in this case where a Polish court judicially determined that the respondent should be convicted of the offence. The fact that there was what has been described as a form of “plea bargaining” and that the respondent had, in a pre-trial investigation, admitted the commission of the offences and agreed the sentence does not take away from the fact that there was a judicial hearing before a Polish court which made a judicial decision that he should be convicted of the offence and sentenced. The Framework Decision At paragraph 42 the court added “It would be difficult for the Union to carry out its task effectively if the principle of loyal co-operation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial co-operation in criminal matters, which is moreover entirely based on co-operation between the member states and the institutions, …” The court then concluded “In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU”. As the court went on to point out that principle does not however require a national court to interpret national law contra legem. The relevant provision of the Framework Decision in this case is, of course, Article 5(1) which has been cited above. The European Arrest Warrant in this case has been issued for the purpose of executing a sentence imposed by a Polish court. Article 5(1) of the Framework Decision reads as follows:
In referring to the decision which imposed a sentence the reference is, evidently, to a judicial decision, and one which led to the imposition of the sentence. It seems to me that it would be entirely incompatible with Article 5(1) of the Framework Decision if the phrase ‘tried for’ in s.45 was to be so narrowly interpreted that it only applied to a judicial determination where the court was required to hear witnesses on the merits of all the prosecutions allegations of fact pointing to the accused’s guilt. The State argued that the use of the term “retrial” meant that Article 5(1) only referred to the full trial as to whether the facts or evidence pointing to the accused’s guilt should or should not be accepted. I do not think this logically follows from a reading of Article 1 of the Framework Decision. On the contrary, if the reference to a person being entitled to a retrial in certain circumstances has a bearing at all it is one which suggests that a judicial decision which results in the imposition of a sentence is a trial, since it is that decision which must be taken again if a person is surrendered pursuant to Article 5(1) on the basis of an assurance that he would be offered a retrial. The same applies if the person has been adjudged to have been convicted and then sentenced on foot of a judicial decision and is surrendered on foot of assurances referred to in Article 5(1). Then it is that judicial determination of his or her guilt or the imposition of a sentence which must be “retried”. I would note in conclusion on this particular point that Article 5(1) of the Framework Decision is an optional rather than mandatory ground on foot of which a Member State may refuse to execute the European Arrest Warrant. Section 45 is clearly giving effect to that provision. But for that permissive provision the Act could not properly have specified that a surrender should be refused in the case of a person tried and convicted in absentia, and when there were no adequate assurances of a retrial. Nonetheless it was not in issue between the parties that s.45 fell to be interpreted not only in the light of the Framework Decision generally, but specifically in the light of article 5(1). In any event, Fennelly, J. stated in MJELR v. Bailey [2012] IESC 16 “There does not seem to me to be any reason in principle to exclude the principle of conforming interpretation from a measure merely because it implements an "opt-out." On the contrary, logic demands that the principle be applied equally to such a situation. Indeed, it might well be that a correct interpretation would lead to the exclusion of an individual from the benefit of a national measure, once it was correctly interpreted as a matter of European Union law. Accordingly, I am satisfied that section 44 must be interpreted in conformity with article 4.7(b) and not merely with the general objectives of the Framework Decision.” In my view, the same applies to the optional precondition to surrender provided for in Article 5(1) of the Framework Decision. Accordingly, while in my view the respondent was tried and convicted by the Polish court within the plain and ordinary meaning of s.45(a) of the Act, s.45 is, a fortiori, and at the very least, capable of being interpreted in conformity with what is envisaged by article 5(1) of the Framework Decision. That being the case, the Court, in accordance with the Pupino decision, is in my view bound to give such an interpretation to s.45. For all the reasons indicated I would hold that the existence of a form of pre-trial “plea bargaining” does not mean that s.45 of the Act of 2003 cannot be applied. Accordingly, I would dismiss the appeal.
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