The High Court has refused an application to surrender Piotr Marian Mocek to Poland, finding that the circumstances of his conviction in his absence did not establish that his defence rights had been adequately protected.
Mr Justice Paul Burns delivered the judgment on 8 June 2021. The Minister for Justice and Equality sought his surrender under a European arrest warrant to serve one year and four months’ imprisonment in Polish case II K 29/16.
The court was satisfied that Mr Mocek was the person named in the warrant and that the statutory minimum gravity requirements were met. It also found that surrender was not barred on the other grounds considered under the European Arrest Warrant Act 2003. The central issue was that he had not been present at the Polish hearing that led to the sentence.
The Polish judicial authority said Mr Mocek had personally received notice of the hearing while detained at Poznań Detention Centre. However, the notice did not tell him he could request to be brought to court. The issuing authority later said it could not prove that he had unequivocally waived his right to attend, and there was no document showing that he did not wish to attend.
The Minister’s counsel conceded that an unequivocal waiver could not be established and did not argue that Mr Mocek had failed to exercise due diligence. The court noted that, although notice of a hearing can in some circumstances support a finding of waiver, Mr Mocek was in custody and could not attend unless Polish authorities brought him there.
Applying the Supreme Court’s approach in Minister for Justice v Zarnescu, the court considered whether the respondent’s defence rights had been respected. It concluded that it could not be satisfied that the requirements governing convictions in a person’s absence had been substantively met, or that his fair trial rights under Article 6 of the European Convention on Human Rights had been adequately protected.
The court held that surrender was incompatible with Ireland’s obligations under the Convention and precluded by section 37 of the 2003 Act. It refused the surrender application. The judgment concerns the surrender request; it does not set aside the Polish conviction or sentence.