THE HIGH COURT
[2025] IEHC 295
Record No. 2025 No. 030 EXT
BETWEEN
MINISTER FOR JUSTICE
APPLICANT
AND
JACEK GREGORZ PUK
RESPONDENT
JUDGMENT of Mr Justice Patrick Mc Grath delivered on the 21 day of May 2025
BACKGROUND
1. In this application the Minister seeks the surrender of the Respondent to Poland pursuant to a European Arrest Warrant ['EAW'] issued by Judge Tomasz Bialek, a Judge of the Circuit Court of Law in Swidnica, on the 23 August 2022.
2. The Respondent was arrested on foot of an SIS alert on the 12 February 2022 and produced before the High Court on the same date, as required under Section 14 of the European Arrest Warrant Act 2003 (as amended) ('the 2003 Act'). The Respondent was admitted to bail pending the determination of these proceedings. The EAW was produced to the Court on the 17 February 2025. Further information was received from the Issuing Judicial Authority [ 'IJA' ] on the 24 February 2025.
3. The EAW is based upon a Judgment of the District Court in Walbrzych, of the 22 March 2017, wherein a conditionally suspended sentence of imprisonment of one year was imposed on the Respondent. On the 13 November 2018 the Court ordered the execution of the conditionally suspended sentence of imprisonment and the Respondent is now sought to serve a sentence of one year's imprisonment.
.
4. No issue is taken in relation to identity, and I am in any event satisfied that the Respondent is the person named in the EAW and sought by the IJA.
5. The EAW was issued by a Judge assigned to the Circuit Court in Swidnica, a 'judicial authority' within the meaning of s.2 of the 2003 Act.
6. I am satisfied that the surrender is not prohibited for any of the reasons set out in in ss 22, 23 and 24 of the 2003 Act
7. I am further satisfied that is surrender is not prohibited under Part 3 of the 2003 Act.
8. The warrant is, so far as is practicable, set out in the form of the Annex to the Framework Decision and the information provided therein satisfies the requirements of s11 of the Act.
9. The Respondent is required in order to serve a sentence of one year's imprisonment. The minimum gravity requirements laid down by Section 38 of the 2003 Act are therefore met.
CORRESPONDENCE
10. The offences for which the Respondent was convicted and sentenced are described at Part (e) of the Warrant as 'an offence under Article 158 ss 1 of C.Pen in conj. With Arti. 157 ss 2 of C Pen in conj. With Art. 11 ss2 of C Pen'. Both are offences against life and health and, in the response to the request for additional information, the IJA confirmed that the sentence of imprisonment was imposed for two similar offences committed on 8 and 9 of August 2015 respectively.
11. A narrative of the circumstances in which the offences were committed is set out in part (e) of the Warrant. On 8 August 2015, the Respondent participated in a group attack on a named individual which included punching the said victim in the face and body and which caused 'such bodily harm to the victim as a laceration of the eyebrow, which impaired the functioning of the victims bodily organs for a period of time shorter than 7 days'. On the 9 August, the respondent participated in another attack on a named individual which involved punching this victim in the face and body and caused 'such bodily harm to the victim as a superficial wound to the left eyebrow, a bruise to the left eyelids, bruising of the left infraorbital area, bruising of the nose ridge and the right lower eyelid area, which impaired the functioning of the victims bodily organs for a period of time shorter than 7 days'.
12. The offence is not one of the category of offences set out in Article 2.2 of the Framework Decision and it is therefore necessary to demonstrate correspondence. Section 5 of the 2003 Act provides:-
'For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State'.
13. The relevant principles for showing correspondence are well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence - Minister for Justice v Dolny [2009] IESC.
14. I am satisfied that the offences set out in the Warrant corresponds with offences under Irish Law being:
a. Assault Causing Harm contrary to Section of the Offences Against the Person Act, 1997
GROUNDS OF OBJECTION
15. Points of Objection were filed on the on the 24 March 2025. In addition to placing the Minister on full proof, the sole substantive ground of objection concerned the alleged failure of the Polish authorities to uphold the defence rights of the Respondent in the course of the criminal process which led to the issuance of this EAW.
16. At Part D of the EAW the IJA confirmed that the Respondent was not present at the 'trial resulting in the decision', namely the trial at which he was convicted of the offences following which a suspended sentence was imposed. This sentence was imposed in his absence by the District Court in Walbrzych on the 22 March 2017 and became finally and legally valid on the 30 March 2017 ['the 2017 hearing'].
17. The Respondent failed to comply with the conditions upon which the sentence was imposed, and the suspended sentence was activated by a decision of the District Court in Walbrzych on the 13 November 2018 and this decision became final and legally valid on the 12 December 2018 ['the 2018 hearing']. This decision was also given in the absence of the Respondent, and he had no notice of this hearing.
18. The IJA ticked the equivalent of box 3.1b in Part D of the Warrant. That states that, though the Respondent was not summonsed in person, he actually received official information by other means of the place and date of the trial that resulted in the decision and that he so received that information in such a manner that it was unequivocally established that he or she was aware of the date and place of his scheduled trial, and was informed that a decision may be handed down if he or she did not attend for trial.
19. The Respondent submits that in order to rely on this provision, it must be unequivocally shown that he was actually notified of the place and date of his scheduled trial. The evidence indicates that a notification for the 2017 hearing was sent twice to the address that he provided during the course of 'pre-trial interrogation' but was not delivered. Notwithstanding this non delivery the presiding Judge at his trial in Poland deemed the summons to have been served as a matter of Polish law and proceeded with the 2017 hearing. The Respondent submits that such notification is not sufficient and in this regard, he relies upon the decision of the CJEU in Dworzecki Case C-108/16. The Respondent says that the Minister cannot therefore rely upon Box 3.3 of Form D, as ticked by the IJA.
20. The Respondent submits that this is not a case where, as submitted by the Minister, his defence rights were upheld in the course of the process leading to the 2017 hearing and his surrender must therefore be refused.
21. The Respondent further submits that the rights of the Respondent were again not upheld in circumstances where, having not been made aware of the trial which took place in March 2017, he was not informed personally of the place and date of the hearing at which the suspended sentence originally imposed was activated, being the 2018 hearing.
SUBMISSIONS OF THE MINISTER
22. The Applicant firstly addresses the 2017 hearing, which he says is for the purposes of this EAW 'the trial resulting in the decision' within the meaning of Article 4(6) of the Framework Decision and s. 45 of the 2003 Act.
23. The Minister firstly refers to the following from Part (d) of the Warrant:-
'When heard in the course of preparatory pre-trial proceedings Janek Puk provided his address for service in Poland: 21/4 Uczniowska Street, Walbrsych, and he was advised, among others, of the obligation to appear at each time when summonsed and of the obligation to inform the authority conducting the proceedings of every change of his place of residence or stay lasting longer than 7 days (Article 75 paragraph 1 of the Code of Criminal Procedure), and he was also informed of the requirement of providing a new address of his residence or stay as, if he failed to do so, any correspondence sent to the original address would be deemed to have been served (Article 139 paragraph 1 of the Code of Criminal Procedure).
In the preparatory (pre-trial) proceedings Jacek Puk pleaded guilty to the charge and he gave a detailed explanation/statement on it
The subject did not appear when he was summoned by the Court. A notification about the scheduled date of the trial, i.e. the 22nd of March 2017, was sent to the address the subject had provided in the course of the preparatory (pre-trial) proceedings and a postal operator twice left him notices of attempted service thereof (containing the information at which post office the mail was deposited and how long it will be available there for pickup). At the trial on the 22nd of March 2017 the Presiding Judge deemed the summons to have been served. On the 22nd of March 2017 the Court handed down and announced the judgment, which became final and legally valid on the 30th of March 2017.
24. In response to a request for further information issued by the Court pursuant to Section 20 of the 2003 Act, the IJA stated as follows in their reply of 24 February 2025:
'Re 3(a) During the preparatory proceedings Jacek Puk was instructed of his rights and obligations and of the consequences of his not complying with these obligations pursuant to Article 300 paragraph 1 of the Code of Criminal Procedure. Jacek Puk was also advised of his obligation to provide/designate the address which correspondence would be sent to
All correspondence addressed and sent to the suspect, the accused, the sentence person, is connected with the entire ongoing criminal proceedings. What correspondence/what writ is sent to the person depends on which stage the criminal proceedings are at and of the procedural situation of the party in concreto.
Re 3(b) In the course of the preparatory proceedings Jacek Puk was informed of his obligations and of the consequences of failing these obligations (emphasis added) including the obligation to provide / designate the address which the correspondence addressed to him should be sent to, the address for service if he is residing abroad, and also to provide his new address if he changes his place of residence or stay - including the situation when he is deprived of liberty for another case - if he fails to do that, a writ sent to the last known address in Poland will be deemed to have been effectively served, and a procedural activity or a court hearing / trial will be conducted in his absence; failure to provide the address may also render it impossible for him to file a request, an objection or an appeal due to the expiry of the statutory time limits provided (emphasis added)'
25. Given the decision of the CJEU in Dworzecki and of the Supreme Court in Minister for Justice v Zaranescu [2020] IESC 59, the Minister rightly does not rely on the ticking of paragraph 1.d in Part (D) of the EAW by the IJA, as there is no evidence that the respondent was actually served with the notification of the 2017 hearing or of the decision then made.
26. The Minister however submits that, in circumstances where (as here) a situation of wilful ignorance by the Respondent of the scheduled date and time of his trial arose amounting to an unequivocal waiver on his part of his right to be present, his rights of defence were not breached. The Applicant submits that from the information contained in the EAW itself and the further information received from the issuing state, particularly in the details of the reply dated the 24 February 2025, it is clear that the respondent made an informed decision not to attend at his trial on the 22 March 2017.
27. The Applicant further submits that the hearing of the 22 March 2017 is the 'trial resulting in the decision', namely the hearing at which he was found guilty of the offences in question and at which the sentence which is now sought to be enforced was imposed. As was made clear by the CJEU in Ardic (Case C - 517/17 PPU),
'where a person 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 condition, 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 Members 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 level of the sentence initially imposed'
28. In this case, it was the decision dated the 22 March 2017 which determined the respondent's guilt and handed down the sentence of imprisonment, which was conditionally suspended. This was the 'trial resulting in the decision' within the meaning of Article 4(a) of the Framework Decision and the Defence rights of the Respondent were upheld in those proceedings.
29. The decision of the 13 November merely executed the previously imposed, but conditionally suspended sentence 'on account of his blatant evasion of the performance of the probation obligation on him', per the information dated 20 February 2025 from IJA. As this hearing did not change the nature or level of the sentence imposed on the 22 March 2017, this later hearing did not constitute a 'trial' or 'proceedings' for the purposes of the Framework Decision and 2003 Act.
30. The Minister submits that the rights of the defence have been upheld in the proceedings in Poland leading to the issuance of this EAW and the Court should order his surrender pursuant to Section 16 of the 2003 Act.
DECISION
Hearing of March 2017
31. The following is established on the evidence:-
(i) The Respondent was tried, convicted and sentenced to a conditionally suspended terms of imprisonment in absentia on the 22 March 2017;
(ii) The Respondent was not actually served with notices in relation to the March 2017 hearing and the Court cannot therefore, following the decision of the CJEU in Dworzecki and the Supreme Court in Zaranescu, conclude that the Polish authorities complied with the requirements of Box 1.d as set out in Section 45 of the 2003 Act;
(iii) In the course of pre-trial proceedings in Poland the Respondent
- had admitted his guilt and given an explanation to the authorities;
- provided an address for service of any documentation in relation to the case following his release after pre-trial interrogation
- was then advised of his obligation to appear when summonsed and of his obligation to inform the authorities of any change of address;
- was also made aware of the possible consequences of not complying with his obligations, which included that any writ sent to his last known address would be deemed served and that a procedural activity or court hearing in the case would be conducted in his absence and that this might further result in his being unable to file any request or objection or appeal due to the expiry of the time provided for same;
(iv) A notice was subsequently sent to the Respondent informing him of the scheduled date of his trial and attached thereto was a further notification of his rights and obligations. This was sent to the address he had provided but was not received by the Respondent as he no longer resided at that address and, in breach of his obligations, had not provided any new address to the Polish authorities;
(v) The Polish Court was satisfied that there had been compliance with the requirements of Polish law and proceeded to hear the case in his absence. The Respondent was duly convicted and sentenced in absentia on the 22 March 2017.
32. In Minister for Justice v Zarnescu [2020] IESC 59 the Supreme Court reviewed the jurisprudence of the European Court of Justice in relation to Article 4(6) of the Framework Decision and set out a number of principles labelled (a) to (r) as set out below:-
(a) The return of a person tried in absentia is permitted;
(b) Article 4(6) of the Framework Decision permits the refusal to return where the requested state has a legitimate reason to refuse the EAW;
(c) A person tried in absentia will not be returned if that person's rights of defence were breached;
(d) Section 45 of the Act, which is designed to give effect to Article 4(6) in Irish law, expressly identifies circumstances in which a person tried in absentia may be returned, primarily where there is evidence of service or where the person was legally represented or where it is shown that a right of retrial in the requesting state is available as of right;
(e) The examples outlined in section 45 as forming the basis of the analysis are not exhaustive, and the requested authority may look to the circumstances giving rise to the non-attendance of the accused person at the hearing;
(f) The requested state has a margin of discretion in how it approaches the facts, and whether to refuse return;
(g) In so doing the requested authority must be satisfied that it has been established unequivocally that the accused person was aware of the date and place of trial and of the consequences of not attending;
(h) Actual proof of service is not always required, and an assessment may be made from extrinsic evidence that the requested person was aware but nonetheless chose not to attend;
(i) Proof of service on a family member is not sufficient extrinsic evidence of that knowledge;
(j) The assessment is made on the individual facts but there must be actual knowledge by the requested person;
(k) Whether actual knowledge existed is a matter of fact and can be shown from extrinsic evidence;
(l) The purpose of the exercise is to ascertain whether the requested person who did not attend at trial has waived his or her right of defence;
(m) A waiver may be express or implicit from the circumstances, but an implication that a requested person has waived his or her rights to be present at trial is not to be lightly made and will not be made if it has not been unequivocally established that the person was aware of the date and place of trial;
(n) The degree of diligence exercised by a requested person in receiving notification of the date and place of trial may be a factor in the assessment of his or her knowledge of the date of trial;
(o) In a suitable case a manifest absence of diligence may lead a requested authority to the view that the accused person made an informed decision not to be present at trial, or where it can be shown that there was an informed choice made by the person to avoid service;
(p) The mere absence of enquiry as to the date or place of hearing in itself may not be sufficient, as it must be unequivocally shown that the requested person made an informed decision and, so informed, either expressly or by conduct waived a right to be present;
(q) It may in a suitable case be appropriate to weigh the degree of responsibility of the requesting state to notify an accused person of the date of trial against the accused's responsibility for the receipt of his or her mail;
(r) The enquiry has as its aim the assessment of whether rights of defence have been breached. It is not therefore a wide ranging or free-standing enquiry into the behaviour or lack of diligence of the requested person, and the purpose is to ascertain if rights of defence were adequately protected.
33. At paragraph 63 Baker J said:
"In the light of the decision of the Court of Justice in Dworzecki and the language of the Frameworks Decisions, the requested court may examine the behaviour of a requested person with a view to ascertaining whether it has been unequivocally established that he or she was aware of a trial date and the consequence of non-attendance, with a view to ascertaining if an informed choice was made not to attend. This in practical terms means ascertaining whether the person has knowingly waived his or her rights to be present at trial."
34. The Court of Appeal in Minister for Justice v Szamota [2023] IECA 143 considered Zarnescu in light of subsequent judgments of the CJEU. The Court confirmed that a relatively broad approach could approach could be taken to waiver, subject to the rights of the defence. Speaking for the Court, Collins J stated (at paragraphs 28 & 29):
"It is also relevant in this context that in LU & PH itself the CJEU was clear that the executing judicial authority may take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of the defence and thus surrender that person to the issuing Member State, including ( inter alia) ' the conduct of the person concerned, in particular the fact that he or she sought to avoid service of the information addressed to him or her or to avoid any contact with his or her lawyers'). That language, which picks up on statements made in TR, suggests that, for the purposes of Article 4a of the Framework Decision, the right to be present at one's trial may, in certain circumstances, be effectively waived even where the person concerned was not aware of the date and place of his or her trial (because they had taken steps which prevented notice of their trial being served upon them).
It may therefore be the case that the concept of waiver in this context must be understood more broadly than the Supreme Court's decision in Minister for Justice and Equality v Zarnescu [2020] IESC 59 would appear to suggest. As Baker J made clear (at para 65), return may still be ordered even where the case does not fit within any of the exceptions to non-surrender set out in section 45 ' but only if the court is satisfied having made an appropriate inquiry that the rights of defence of the requested person have been met.' However, the court went on to read the ECtHR jurisprudence as requiring, as a condition of an effective waiver, that it be established unequivocally that the accused person ' was aware of the date and place of trial and of the consequences of not attending' (see para 90(g) as well as 90(m)). With respect, that may put the matter too far. The Strasbourg jurisprudence certainly appears to identify knowledge of the criminal proceedings as a pre-requisite to an effective waiver but it does not appear to make knowledge of the date and place of trial a necessary condition for waiver in all circumstances: see the authorities referred to in IR, §53, as well as ECtHR 13 September 2018, MTB v Turkey (Application no. 47081/06), §47 and following and the authorities referred to there. Zarnescu was, of course, decided before the CJEU's decisions in TR, IR and LU & PH, all of which appear to espouse a relatively broad approach to the issue of waiver, subject always to respect for the rights of defence."
35. In Minister for Justice v Szlachcikowski [2024] IECA 2024 the Court considered Zarnescu, and Szamota and the decision of the UK Supreme Court in Bertino v Public Prosecutor's Office Italy [2024] UKSC 9. The Court concluded that for a waiver to be unequivocal and effective, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. The Court begins its analysis by observing that while an accused has a right to attend their trial - "it is a right not an obligation" (par. 50). The following passage was quoted with approval from Bertino:
"Cases are fact specific. It leaves open the possibility of a finding of unequivocal waiver if the facts are strong enough without, for example, the accused having been explicitly being told that the trial could proceed in absence."
36. The Court accepted that the jurisprudence of the European Court of Human Rights had been correctly interpreted by the UK Supreme Court and stated:
"... for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another. I readily accept that it will not be necessary in every case for evidence to be adduced that the requested person was expressly advised of the potential consequences of not turning up for his trial. Awareness of consequences could be established in other ways." (Par 72)
37. Having concluded that on the facts of that case there was no evidence of the respondent having reasonably foreseen the consequences of non-attendance, the Court added:
"I reiterate that I see no reason why in another case a court should not be able, from cumulative information provided and evidence as to attendant circumstances, to infer the necessary awareness." (Par 74)
38. From the judgements in Zaranescu, Szamota & Szlachcikowski it is clear that even if a case, as here, does not fall within one of the boxes in Part D of the Schedule to s. 45 of the Act, surrender may be affected where a person was tried in absentia provided the rights of the defence were not breached. As already noted above the Minister has correctly conceded that the facts of this case do not fall within any of the boxes set out in Part D of the Schedule to s. 45 of the 2003 Act. The Minister however submits that the rights of the defence were not breached in relation to the 'trial resulting in the decision', namely the hearing of the 22 March 2017 which resulted in the conviction and sentence of the Respondent in respect of the offence for which his surrender is now sought.
39. Having considered the evidence in this case, I am satisfied that there was a manifest absence of diligence on the part of the Respondent in receiving notification of the documents concerning these proceedings as he had simply left the address he provided and did not provide any other address to the Polish authorities with full knowledge that documents served at this address would be deemed served upon him in such circumstances and that the trial could proceed thereafter in his absence.
40. The Respondent made an informed decision to waive his right to attend at his trial. Having considered the conduct of the Respondent I am satisfied that it has been unequivocally established he made an informed choice not to exercise his right to attend at his trial, fully aware of the consequences of such non-attendance, namely that the trial could proceed in his absence.
41. Having considered the facts in this case I am satisfied that the rights of the defence were not breached in relation to the trial of the Respondent in absentia on the 22 March 2017. This is a case where, having carried out an inquiry into all the circumstances, the court can be satisfied that the defence rights of this Respondent were upheld in the process which led to his conviction and sentence on that date.
Hearing of November 2018
42. The sentence of one year's imprisonment imposed at the 2017 hearing by the District Court in Walbryzch was conditionally suspended. On the 13 November 2018, in the absence of the Respondent and without him having received any notification of this 2018 hearing, the said court ordered the execution of this conditionally imposed sentence and the Respondent is therefore now sought to serve this sentence of one year's imprisonment.
43. In the information received from the IJA dated the 24 February 2025, the following is stated:
'Re 2) In the judgment dated the 22nd of March 2017, reference III K 260/16, the District Court of Law in Walbryzch imposed on Jacek Puk a sentence of imprisonment for a term of 1 (one) year, the enforcement/ execution of which was conditionally suspended for a probationary period of 2 (two) years. In addition, the Court put Jacek Puk under an obligation to keep the court informed about his conduct while on probation every 6 (six) months.
In the judicial decision dated the 13th of November 2018, reference III K260/16 (III Ko 1679/19) the District Court in Walbryzch ordered the execution / enforcement of conditionally suspended sentence of imprisonment for a term of 1 (one) year imposed on the person by the judgment dated the 22nd of March 2017, reference III K 260/16. In the reasons of this judicial decision it is stated it is impossible to supervise/monitor the probation obligation the said sentenced person was under, i.e. informing the court of his conduct while on probation every 6 months, because Jacek Puk is not living at the address provided by him, he does not collect/ pick up correspondence sent to him by a probation officer and by the Court. The said sentenced person's location, including a possible place of his incarceration, was not established. Not a single report of the conduct while on probation was submitted to the Court by the said sentenced person - as per the obligation put on him and specified in the judgment dated the 22nd March 2017. The court has therefore taken that the said sentenced person blatantly evades complying with/fulfilling the probation obligation imposed on him.
The execution/enforcement of the conditionally suspended custodial sentence in respect of Jacek Puk was ordered not on account of a new criminal conviction but on account of his blatant evasion of the performance of this probation obligation imposed on him [emphasis added]
As provided for in Article 75 paragraph 2 of the Criminal Code, the court may order the sentence to be carried out, if in the probation period, the offender blatantly violates the legal order, in particular if he / she has committed an offence other than that specified in s1, or if he/she evades payment of a fine, supervision, performance of the obligations, penal measures, compensation or forfeiture duties imposed on him/her.'
44. The Minister has referred to the decisions of the CJEU in Ardic and of the Supreme Court in Minister for Justice v Lipinski [2018] IESC 8, as authority for the proposition that the hearing of November 2018, which solely activated the sentence conditionally imposed in March 2017, was not part of the 'trial resulting in the decision'. He submits that the rights of the defence were not therefore violated by the absence of any notification being given to the Respondent of this hearing.
45. There have been a number of decisions of both the Irish Courts and the CJEU which have considered the question of whether, or in what circumstances, the activation of a suspended sentence might be considered as part of the 'trial resulting in the decision' within the meaning of Article 4(6) of the Framework Decision or might otherwise give rise to a right to be informed of and / or attend at such an activation hearing.
46. The following principles of law have emerged from the case law on this topic:-
(i) The 'trial resulting in the decision', as used in Article 4a of the Framework Decision, is a concept which has an autonomous and uniform interpretation and meaning throughout the Union - Ardic;
(ii) For the purposes of Article 4a of the Framework Decision, the activation of a suspended sentence will ordinarily not be considered a 'the trial resulting in the decision'. In cases where an activation hearing takes place in the absence of a Respondent (or without him receiving due notification of the same) surrender is the rule and the question is whether or not an individual respondent can bring himself within some exception to that rule;
(iii) The fact that a Court, when considering whether to activate a suspended sentence enjoys a margin of discretion such that it might not activate a suspended sentence at all or activate it in whole or in part, does not alter the nature of such a hearing and does not mean that such a hearing is a 'trial resulting in the decision' and therefore one to which the requirements under Article 4a apply. In other words, as made clear at paragraph 80 of Ardic and re-affirmed at paragraph 54 of LU & PH [Cases C-514/21 and C-515/21], there is no requirement that a respondent be present at or have notification of such a hearing under Article 4a of the Framework Decision as it is not a 'trial resulting in the decision';
(iv) Where a Court can modify the quantum or nature of the penalty imposed, for example Gurgiudiani v Spain [ECtHR 15 December 2009] (where a new penalty was imposed at this further hearing), Ezeh & Connors v United Kingdom [ECtHR 9 October 2009] (where an increased period of detention was imposed following the later hearing) or Zdziaszek Case C - 271/17] (where a new cumulative sentence was imposed at a further hearing), then such further hearing is 'the trial resulting in the decision' as the nature or quantum of the penalty imposed has been or may be modified and the requirements of Article 4a apply to such a hearing;
(v) Where the suspended sentence originally imposed is or may be activated as a result of a further offence ('the triggering offence') then the respondent must have been present or have had proper notification of the hearing of the triggering offence. In other words, the fair trial rights under Article 6(1) of the ECHR and the requirements of Article 4a of the Framework Decision must be met in relation to this triggering offence and if this did not happen then surrender may be refused.
47. The hearing of November 2018 was solely concerned with the question of whether or not to activate the conditional sentence of imprisonment previously imposed at the March 2017 hearing.
48. The Court at that hearing decided to activate the sentence of one year's imprisonment, previously imposed in March 2017 but conditionally suspended on that date by the Court. The Court activated that sentence in November 2018 not because the Respondent had committed any further offence but rather because the Respondent had wholly failed to comply with the terms upon which this sentence was suspended in March 2017.
49. No question arose at the November 2018 hearing of the Court altering or modifying the quantum or nature of the penalty previously imposed in March 2017. Nor was any additional penalty imposed by the Court on that date.
50. As noted by the CJEU in Ardic the concept of a 'trial resulting in the decision' , as used in Article 4a of the Framework Decision is a concept which has an autonomous and uniform interpretation and meaning throughout the Union. Consistent with the principles set down in the case law of the CJEU, the activation of a suspended sentence is not normally considered as part of 'the trial resulting in the decision' and surrender is the rule even where the Respondent was not made aware in advance of the activation hearing.
51. Consistent with the jurisprudence of the CJEU (as accepted and followed by the Irish Courts), the activation hearing of November 2018 was prima facie not part of the 'trial resulting in the decision' and, although the Respondent was not aware of this activation hearing, this court must order surrender unless Mr Puk can bring himself within some exception to the normal rule.
52. As previously observed this is not a case where (a) there was any question of modifying the nature or quantum of the penalty imposed at the 'trial resulting in the decision' in March 2017, (b) no additional or new penalty was or could be imposed at that activation hearing and (c) it was not a situation where the suspended sentence was activated because of the commission by the Respondent of a 'triggering offence' within the period of suspension set out when sentence was imposed in March 2017.
53. The Respondent cannot therefore bring himself within some exception to the normal rule on the facts of this case. The rights guaranteed under Article 6(1) of the ECHR and the requirements of Article 4a of the Framework Decision did not therefore apply to the activation hearing. The fact that the Respondent was not informed of and / or did not attend the date of that activation hearing in November 2018 did not therefore result in any breach of the rights of the Respondent.
54. In the circumstances therefore I dismiss the grounds of objection of the Respondent and intend to make an order for his surrender pursuant to s. 16 of the 2003 Act.