About this case:

• Citation:
  [2023] IESC 37
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Elizabeth Dunne

The questions concern whether the discretionary conversion of a supervisory sentence to a custodial sentence under Latvian law was a “trial resulting in the decision” for the purpose of Article 4a of Council Framework Decision 2002/584/JHA of 13th June 2002, and whether the decision to convert the sentence constituted a modification of the quantum and nature of the respondent’s previous sentence such as to come within the exception in Case C-571/17 PPU Ardic.

Delivering judgment for the Supreme Court, Ms Justice Elizabeth Dunne stated: “No additional terms are imposed and no additional period of time is added to that which was already provided for in the original court decision of 2015… Nevertheless, there is a discretion left to the Latvian court as to whether or not to impose the additional sentence. Mr Radionovs was not present at that hearing and it could be that his presence might have made a difference to the outcome of that hearing.”

Background

The respondent was convicted of two offences, each resulting in a sentence of imprisonment and an additional sentence of police supervision. In October 2015, a court in Riga consolidated his sentences resulting in cumulative sentences of four years and nine months in prison and three years under police supervision.

Whilst imprisoned, the respondent was notified verbally and in writing that he was required to report to Jekabpils police station within three working days of his release as a condition of his police supervision, in default of which an administrative penalty could be imposed.

The respondent failed to comply with that condition and was found guilty of administrative violations pursuant to s.177 of the Administrative Violations Code of Latvia, resulting in two fines.

Latvian law provides that where a person violates supervisory conditions in “bad faith”, consisting of two or more administrative violations within a one-year period, then a court may convert any remaining supervisory sentence to a custodial sentence, by a 2:1 ratio.

An application was subsequently made to the Latvian District Court to convert the respondent’s remaining supervisory sentence. A summons was sent by registered post to the respondent’s address and was returned undelivered on 31 July 2020. On 19 August 2020, the application was heard in his absence and the court converted the remaining two years and two days of supervision into a custodial sentence of one year and one day.

A hearing transcript was sent to the respondent but was returned undelivered. No appeal was brought by the respondent, and on 26 February 2021, a European Arrest Warrant issued for the respondent seeking to enforce the custodial sentence, being endorsed by the Irish High Court on 21 December 2021.

The respondent objected to his surrender pursuant to Article 4a of the Council Framework Decision 2002/584/JHA of 13th June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States, to which effect was given by s.45 of the European Arrest Warrant Act 2003 (as amended).

The High Court

Article 4a provides, inter alia, that a court may refuse to execute a European Arrest Warrant for the purpose of enforcing a custodial sentence if the person did attend the trial resulting in the decision, unless the warrant states that the person actually received official information of the date and place of the trial in such a manner that it was unequivocally established that they were aware of the trial, and were informed that a decision may be handed down in their absence.

The court considered the exception in Ardic, in which the concept of a “decision” in Article 4a was found not to cover decisions “relating to the execution or application of a custodial sentence previously imposed, except where the purpose or effect of that decision is to modify either the nature or quantum of that sentence and the authority which adopted it enjoyed some discretion in that regard”.

The respondent contended that the 2020 decision altered the nature and quantum of his 2015 sentence, and so the hearing was a “trial which resulted in the decision” for the purposes of Article 4a, or “proceedings resulting in the sentence or detention order” for the purposes of s.45 of the 2003 Act. The minister argued inter alia that the respondent had waived his right to attend.

The High Court disagreed, finding the 2020 decision akin to the activation of a suspended sentence in Ireland, allowing for a margin of discretion and being based on a mathematical application, rather than a “decision finally disposing of the case on the merits, in the sense that there are no further avenues of ordinary appeal available” as per Case C-270/17 PPU Tupikas.

However, the court determined that there had been a failure to notify the respondent at any point that there could be a further hearing that could result in his supervision being converted to a prison sentence, and so his surrender was refused.

Having been refused leave to appeal to the Court of Appeal, the Minister successfully applied for leave to appeal to the Supreme Court.

The Supreme Court

Ms Justice Dunne noted that “surrender is the rule and a refusal to surrender is the exception to the rule. The question that arises in this case, therefore, is whether or not the respondent can bring himself within the exceptions to the rule.”

The respondent argued that the decision of 19 August 2020 was “a new judicial decision” invoking the safeguards of Article 4a of the Framework Decision and Article 6 of the European Convention on Human Rights. The minister argued that conviction for administrative offences falls outside the concept in Joined Cases C-514/21 & C-515/21 LU & PH of offences triggering the revocation of a suspended sentence following a trial in absentia, and so what occurred was merely “the execution of a sentence previously imposed”.

The court considered that on the facts, no new judicial decision was made as the maximum sentence was already decided and neither the nature nor the quantum of the sentence was varied, save in accordance with Latvian law. However, Ms Justice Dunne recognised that the District Court enjoyed a discretion as to whether or not to convert the sentence, and that it was apparent that the result may have differed if the respondent had attended court.

Having examined the caselaw, the court felt that the issue of whether the 2020 hearing was “a trial resulting in the decision” was not acte claire “by reason of the discretion as to whether or not to impose the additional sentence in circumstances where that hearing occurred in absentia, given that the presence of Mr Radionovs at such hearing could have made a difference to the decision”.

The court decided that the administrative fines were not “trigger offences” as described in LU on the basis that it was not convinced that such offences engaged his Article 6 rights in the absence of appropriate evidence supporting that contention.

Conclusion

Accordingly, the court referred the following questions to the European Court of Justice: whether the hearing resulting in the conversion of the supervisory sentence to a custodial sentence was a “trial resulting in the decision” for the purpose of Article 4a, and whether the decision to convert the sentence modified the quantum and nature of the respondent’s previous sentence such as to come within the exception in paragraph 77 of Ardic.

Minister for Justice and Equality v Sergeis Radionovs [2023] IESC 37