Offences must correspond under European Arrest Warrant
MJELR -v- Laks High CourtJudgment was delivered on January 14th, 2009 by Mr Justice Michael Peart.
An application for the surrender of Polish man to serve a 10-month sentence in Poland under a European Arrest Warrant was refused on the basis that there was not sufficient correspondence between the offence and an offence under Irish law to meet the terms of the European Arrest Warrant Act 2003.
The respondent in the case is a Polish national, Tomasz Laks, whose return to Poland was sought by a Polish judicial authority so that he could serve a 10-month sentence.
The sentence was imposed on June 29th, 2001, and was conditionally suspended.
The crime of which he was convicted was based on him cashing cheques and making cheques out to third parties, for which he had insufficient funds in his bank and was in excess of his overdraft facility.
The sentence was suspended for three years, on condition that he repay the money within a year, undertake a job and be under the supervision of a probation officer.
He did not fulfil these conditions though, according to the Polish authorities, he was earning money except for a period between December 2002 and February 2003, and was supporting his mother.
In June 2004 there was a court hearing at which the suspension of the sentence was lifted, thereby reviving the sentence. He said he was not notified of this hearing.
In July 2004 he left Poland, initially for the Netherlands, where his cousin was working, but where he failed to obtain work.
He then came to Ireland in November 2004, and was working in Ireland since. He contested his surrender to the Polish authorities on three grounds.
He stated that he did not “flee” Poland under the terms of section 10 of the European Arrest Warrant Act 2003, in that he left to obtain employment and until his departure was living openly in Poland.
From the trial in 2001 until his departure, he did not receive any communication from either the bank or the court and was not notified of the June 2004 hearing where the suspension of his sentence was lifted.
He further claimed that the June 2004 hearing, which took place in his absence and heard evidence, was in breach of his constitutional and convention rights, in that he had no opportunity of being heard.
The third ground of his challenge was that the acts by him which gave rise to the offence for which he was convicted in Poland would not correspond to any offence in this jurisdiction.
Referring to the issue of “fleeing”, Mr Justice Peart said that the only basis on which Mr Laks contended that he did not flee was that he had received no communication from the bank or the court.
“That is not sufficient in any manner whatsoever to escape the ambit of section 10 (d) of the Act,” he said.
“He had failed to comply with the conditions of the suspension of his sentence. There is a clear presumption to be made that he was aware that these conditions had been imposed and that he was in breach of them . . . he was aware that a failure to comply with these conditions would result in the suspension being lifted and the sentence of imprisonment becoming enforceable. He left Poland with that knowledge.”
He ruled that this ground of objection failed.
Turning to the issue of breach of constitutional/convention rights, he referred to an English case, Baksy -v- the Ministry of Justice of the Republic of Lithuania, where the appellant also had the suspension of a sentence lifted in his absence.
Judge Moses ruled in that case: “All that has happened is that the original sentence passed on March 13th, 2002, has been enforced. That does not amount to any fresh conviction or fresh order, still less the fresh imposition of a sentence.”
Mr Justice Peart said that Mr Laks was present during his trial and for his conviction and sentence, so when the sentence was imposed on certain conditions, all his constitutional and convention rights were afforded him.
“What occurred subsequently is simply that he himself had failed to comply with the conditions of the suspended sentence, bringing upon himself by his own lack of action an application for the lifting of the suspension.”
The fact that evidence was heard at this hearing did not make it other than a procedural one, he said.
The respondent had also claimed that his constitutional and convention rights were breached in the original trial. However, following receipt of correspondence from the judicial authority in Poland contradicting his account of the trial, he withdrew this. This affected his overall credibility, Mr Justice Peart said.
He subjected his claims concerning an overdraft facility in his bank in Poland and the nature of the offence he committed in Poland to close scrutiny.
The offence for which he was convicted is described as “swindling money” which is one of the offences referred to in Article 2.2 of the Framework Decision, but the judicial authority did not mark this in the relevant paragraph of the warrant. Instead it gave details under another heading, indicating that it was not a swindling offence as such.
This offence was described in considerable detail by the Polish authorities, who stated he misled cashiers as to the amount of money in his account and issued nine cheques to himself and four to other people, bringing about an illegal debit on his account.
He did not make this good and had social welfare cheques sent to his home instead of lodged to his bank, as they had been previously.
Counsel for the Minister argued that this, if committed in this jurisdiction, would be very similar to making a gain or causing a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
Counsel for Mr Laks argued that the facts indicated a borderline situation between a criminal and a civil act and could be characterised simply as failure to pay a debt.
He also said that Mr Laks had an overdraft facility equivalent to €549, and the total amount of the cheques was €600.
Therefore the shortfall was only €51 and some of the 13 cheques referred to in the warrant would have been met by funds. It was completely unclear as to which or how many of the cheques caused the overdraft facility to be exceeded.
Further correspondence from Poland established that the overdraft facility was in fact 25 per cent less than the defendant had claimed. This correspondence also referred to him “taking advantage of the imperfection of the banking system.”
Mr Justice Peart said that the latest correspondence established that he did have an overdraft facility, though somewhat less than he claimed.
If he did not, by drawing the 13 cheques he would have committed an offence under section 6 of the 2001 Act.
However, in circumstances where there was an overdraft facility and a single offence was charged covering all 13 cheques, it was impossible to conclude a correspondence between this offence and one under section 6 of the Act.
He refused the application for the return of the respondent.
The full judgment is on www.courts.ie
Seán Guerin BL, instructed by Garret Sheehan Solicitors for Laks; Tony McGillicuddy BL, instructed by the Chief State Solicitor, for Mr Laks.