The Supreme Court has referred a European law question to the Court of Justice of the European Union in an appeal concerning Arkadiusz Piotr Lipinski’s proposed surrender to Poland. It did not decide whether he may be surrendered, and the text of the reference was still to be settled after the parties had an opportunity to comment.
The appeal concerns a 15-year prison sentence imposed on Mr Lipinski in Poland in 1998 after his conviction on 15 charges. The sentence was reduced to 10 years on appeal. He was present at his trial and sentencing, and was represented and aware of the appeal hearing, although he was not physically present for it.
In 2004, a Polish court conditionally released him and suspended the unserved balance of his sentence for three years, subject to conditions including probation supervision and notifying his probation officer of any address change. The judgment says he left Poland for Ireland in July 2006 and appears to have failed to comply with those conditions. A Warsaw court revoked his conditional release in December 2006, making him liable to serve the remaining sentence. He was not notified of, and did not attend, the hearing that led to the revocation.
The Minister for Justice and Equality argued that the European Arrest Warrant sought execution of the original sentence, which followed a trial Mr Lipinski attended. On that view, the rules concerning absence from trial did not prevent surrender. Mr Lipinski argued that the revocation hearing was a necessary part of the legal process that made imprisonment possible, and that his absence without notice brought the case within those rules.
The dispute turns on Article 4a of the EU’s European Arrest Warrant framework, as amended, and Ireland’s implementing legislation. The Supreme Court said the warrant relied on Mr Lipinski’s presence at the original trial and did not invoke any of the listed exceptions for cases where a person was absent. It therefore identified a narrow legal question: whether “the trial resulting in the decision” refers to the original trial and sentence alone, or also includes the later process revoking conditional release.
The Supreme Court held that the answer was not clear enough for a final court to decide without a reference under Article 267 of the Treaty on the Functioning of the European Union. It proposed allowing the parties one week to submit written observations on the wording of the draft reference, due by 29 May 2017. The court would then settle the reference terms for submission to the EU court. The judgment does not resolve the surrender appeal.