The High Court refused an application to surrender Arkadiusz Tokarski to Poland under a European Arrest Warrant, finding that he had been tried and convicted in absentia and that no undertaking required by Irish law had been provided for a retrial.
In a judgment delivered on 9 March 2012, Mr Justice Edwards said the court had to refuse surrender under section 45 of the European Arrest Warrant Act 2003 in the absence of a written undertaking from the issuing authority. The section requires an undertaking that the person will be retried or given an opportunity for retrial, notified of its time and place, and allowed to attend.
Mr Tokarski opposed surrender. His affidavits said he had not been informed of a court hearing and had not attended one. He initially said he returned to Ireland in July or August 2009 and did not go back to Poland; in a later affidavit, he corrected this, saying he returned to Poland in October 2009, met police and then returned to Ireland.
Information from the Polish issuing judicial authority said Mr Tokarski was arrested in Poland on 27 July 2009 while intoxicated. It said he was first questioned the next day, when sober, and was informed of his right to a lawyer but did not use it. At a further police interrogation on 12 October, it said, he agreed to plead guilty and to a proposed combined sentence of one year and two months. The prosecutor then asked the court to impose that penalty. The Polish authority said the court issued its sentence on 1 December 2009, without requiring Mr Tokarski to attend, and described the judgment as not having been passed in default.
The court rejected the applicant’s argument that Mr Tokarski’s discussions with police and the prosecutor meant he had participated in the trial. Justice Edwards said that, under Irish law, a trial involves a court determining guilt or innocence. The information showed that the first court action was the sentence on 1 December; Mr Tokarski had not been arraigned before a court.
The judge was satisfied that Mr Tokarski had been tried and convicted in absentia. He refused the surrender application because the required section 45 undertaking was absent. The judgment did not direct surrender to Poland.