Judgment: 2023-03-24 · Court archive

High Court orders surrender to Netherlands after rejecting absence-at-appeal objection

The court found the respondent had been informed in person of the appeal date and could not rely on his account of why he missed the hearing to bar surrender.

High Court · [2023] IEHC 423

Who, what, where, when and why

Who
  • Michal Zbigniew Ewertowski (Respondent)
  • Kerida Naidoo (Judge)
What

The court found the respondent had been informed in person of the appeal date and could not rely on his account of why he missed the hearing to bar surrender.

Where

Places mentioned in the report

  • Oosterhout
  • Dublin Airport
  • Eindhoven
  • ’s-Hertogenbosch
  • Gorey
When

Judgment:

Other dates in the report
  • 7 March 2022

    Ewertowski attended the original trial in April 2021 and was sentenced to eight months. He appealed through counsel. At a hearing on 7 March 2022, he appeared without a lawyer, and the appeal was adjourned to 1 July. The High Court said he was told to attend on that date and warned that a decision could be made if he did not appear. He did not attend or have legal representation at the July hearing. The six-year sentence was imposed on 25 July and became final on 9 August.

  • 25 July 2022

    The warrant seeks his surrender to serve a sentence imposed by the Court of Appeal of ’s-Hertogenbosch on 25 July 2022. It states that 2,187 days remained to be served. The underlying offence description alleges that, on 26 May 2019 in Oosterhout, Ewertowski attempted to kill an injured party by repeatedly striking them on the face and head with a hard, heavy object.

Why

Reasons reported in the judgment

The judge found the affidavit lacked important detail about how Ewertowski understood the date, whether he had checked it, his arrangements for legal representation, and the circumstances of the lost bag and missed flight. The judge also noted that he had not explained why he did not contact the Dutch authorities before or after the hearing to explain his absence. The court accepted the warrant’s account that he had been told the correct date with the assistance of a Polish interpreter.

The High Court has ordered the surrender of Michal Zbigniew Ewertowski to the Netherlands, rejecting his objection that the appeal which led to a six-year prison sentence was decided in his absence in breach of Irish law.

In a judgment delivered on 24 March 2023, Mr Justice Kerida Naidoo ruled that the Netherlands could rely on information in its European Arrest Warrant showing that Ewertowski had been summoned in person and told when the appeal hearing would take place. The court made the surrender order under section 16 of the European Arrest Warrant Act 2003.

The warrant seeks his surrender to serve a sentence imposed by the Court of Appeal of ’s-Hertogenbosch on 25 July 2022. It states that 2,187 days remained to be served. The underlying offence description alleges that, on 26 May 2019 in Oosterhout, Ewertowski attempted to kill an injured party by repeatedly striking them on the face and head with a hard, heavy object.

Ewertowski attended the original trial in April 2021 and was sentenced to eight months. He appealed through counsel. At a hearing on 7 March 2022, he appeared without a lawyer, and the appeal was adjourned to 1 July. The High Court said he was told to attend on that date and warned that a decision could be made if he did not appear. He did not attend or have legal representation at the July hearing. The six-year sentence was imposed on 25 July and became final on 9 August.

In an affidavit, Ewertowski said he believed the appeal was listed for 12 July. He said he had booked a flight to Eindhoven for 11 July but lost his bag containing his passport and driving licence at Dublin Airport. He also referred to a road traffic case listed before Gorey District Court. The Minister for Justice argued that the warrant’s account showed he had been correctly informed of the July hearing date.

The judge found the affidavit lacked important detail about how Ewertowski understood the date, whether he had checked it, his arrangements for legal representation, and the circumstances of the lost bag and missed flight. The judge also noted that he had not explained why he did not contact the Dutch authorities before or after the hearing to explain his absence. The court accepted the warrant’s account that he had been told the correct date with the assistance of a Polish interpreter.

The judge dismissed the objection under section 45 and Article 4A of the Framework Decision. A separate argument relying on *Minister for Justice v Zarnescu* was not necessary to decide. Objections under section 37 and the EU Framework Directive on transfer of sentenced persons were no longer pursued. The court also found surrender was not precluded by other provisions of the 2003 Act.

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