Minister for Justice and Equality v Lyszkiewicz

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 04 February 2021
• Neutral Citation: [2021] IEHC 108
• Docket Number: [2019 No. 349 EXT]
• Court: High Court
• Year: 2021

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

JAKUB LYSZKIEWICZ

RESPONDENT

[2021] IEHC 108

Binchy

[2019 No. 349 EXT]

THE HIGH COURT

JUDGMENT of Mr. Justice Binchy delivered on the 4th day of February, 2021

1 By this application the applicant seeks an order for the surrender of the respondent to Poland pursuant to a European arrest warrant dated 27th May, 2019 (“the EAW”). The EAW was issued by The Regional Court in Rzeszów, as issuing judicial authority (“IJA”).

2 The EAW was endorsed by the High Court on 21st October, 2019. The respondent was arrested and brought before the Court on 8th November, 2019. The application opened before the Court on 16th January, 2020, and was then adjourned until 5th February, 2020, following upon a direction by this Court, pursuant to s. 20 of the European Arrest Warrant Act 2003 (as amended) (hereinafter “the Act of 2003”) to seek further information from the IJA. On 5th February, 2020 the matter was again adjourned for the provision of additional information by the IJA, to 4th March, 2020.

3 At the opening of the application, I was satisfied that the person before the Court is the person in respect of whom the EAW is issued.

4 I was further satisfied that none of the matters referred to in ss. 21 A, 22, 23 and 24 of the Act of 2003 arise, and that the surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.

5 At para. B of the EAW, it is stated that the decision on which it is based is an enforceable decision of detention on remand of the District Court in Rzeszów of the 27th April, 2016, “to use detention on remand for the period of 3 months from the date of apprehension and to issue an arrest warrant”. A case file reference X K 232/15 is provided.

6 At para. C of the EAW, information regarding the length of sentence that may be imposed for the offences to which the EAW relates is provided, by reference to the relevant provisions of the Polish Criminal Code, as follows:

i. Offence under Article 286 - 1 carries a penalty of up to 8 years of imprisonment.

ii. Offence under Article 287 - 1 carries a penalty of up to 5 years of imprisonment.

iii. Offence under Article 191 - 1 carries a penalty of up to 3 years of imprisonment.

iv. Offence under Article 191a - 1 carries a penalty of up to 5 years of imprisonment.

Accordingly, minimum gravity is established in relation to all offences.

7 At para. E of the EAW, it is stated that the warrant relates to five offences, particulars of which are set out at para. E (2), and may be summarised as follows:

i. In the period between 1st January, 2013 until 28th February, 2013, the respondent gained unauthorised access to an online account of an auction portal and replaced the email address and phone number of that account, for the purpose of material gain. (An offence under Article 287 § 1 of the Criminal Code)

ii. On 9th March, 2013 the respondent conducted multiple transactions of cosmetics and dietary supplements causing the “disadvantageous” disposal of purchasers' property and misleading the purchasers regarding the actual delivery of the items. Seven transactions are then set out. (An offence under Article 286 § 1, in relation to Article 12 of the Criminal Code)

iii. In the period between 17th December, 2013 until 7th January, 2014, “with premeditated intent”, the respondent threatened to post indecent pictures of two named women online. The EAW states that the respondent was forcing one of these women to transfer 30 000 000 ‘gold’ (circa 9000 PLN) worth of virtual currency within a video game and as a consequence, that named woman transferred 20 000 000 ‘gold’ (circa 600 PLN [sic]). (An offence under Article 191 § 1 in relation to Article 12 of the Criminal Code)

iv. On 18th December, 2013 the respondent again threatened to post indecent pictures of the woman, forcing the other named woman to transfer virtual content in the same video game, equivalent to circa 1000 PLN. (An offence under Article 191 § 1 of the Criminal Code)

v. On 18th December, 2013 the respondent circulated the image of the second named woman on Facebook without her consent. (An offence under Article 191a § 1)

The provisions of the Criminal Code referred to above are then set out in full.

8 At para. E.1 boxes referring to “fraud” and “crime against protection of data collected, stored, processed and transferred within an IT system” are ticked.

9 By letter dated 20th September, 2019 the central authority in this jurisdiction sought clarification of para. E of the EAW, in particular the boxes ticked, as the second box indicated does not correspond with the wording of Article 2.2 of the Framework Decision. In its response dated 23rd September, 2019 the IJA clarified that the offences relied upon under Article 2.2 of the Framework Decision are “computer-related crime” and “swindling”. Having been provided with that clarification, I am satisfied that Article 2.2 of the Framework Decision has been invoked as regards all offences described in the EAW. In any case, no objection to surrender was made in this regard, although in his first point of objection, the respondent did plead that the offences with which the respondent is charged do not correspond to offences in this jurisdiction. Quite properly however, this objection was not pursued at hearing, in light of the reliance placed by the IJA on the ticking of the boxes for computer related crime and swindling.

10 The respondent's solicitor swore an affidavit dated 27th November, 2019, seeking adjournment of proceedings at that time in order to obtain information of the respondent's Polish lawyer, Mr. Damian Przekwas. In this affidavit it is stated that the respondent believes that he has been convicted of two of the offences outlined in the EAW and received a non-custodial sentence. It is then averred that contact had been made with Mr. Przekwas who advised that he was unsure as to whether the respondent's assertion was correct. It was stated in the affidavit that without clarification of this issue, the respondent would be at risk of being surrendered for prosecution of offences for which he has already been convicted.

11 The respondent subsequently provided a letter to the Court of Mr. Przekwas dated 13th January, 2020 (the letter was incorrectly entitled “Affidavit of Laws”). This letter states that Mr. Przekwas was taking steps before the District Court in Rzeszów to apply to change the order for the respondent's pre-trial detention to bail, coupled with a ban on leaving the country during the trial. Mr. Przekwas says that the respondent instructed him that, at the time the decision on pre-trial detention was issued by court order of 27th April, 2016, he had not lived in Poland for a long time and did not know he was subject to an arrest warrant. Mr. Przekwas further states that the respondent was not informed of the letters delivered to his previous Polish address. Mr. Przekwas also mentions that the respondent has health problems and that pre-trial detention is not mandatory. He also claims that the use of pre-trial detention in Poland has been criticised in many judgments of the European Court of Human Rights (the “ECtHR”).

12 Points of objection were delivered on behalf of the respondent on 18th November, 2019. Six points were raised, just one of which was pursued at the hearing of this application. This was as follows:

“At para. C.2 of the EAW, the requesting state seeks the return of the respondent for the purpose of three months pre-trial detention. It appears that the pre-trial detention has been pre-determined against the respondent without any right to be admitted to bail. It is therefore repugnant to the constitutional imperatives of Bunreacht na hÉireann 1937 to return the respondent to the requesting state.”

13 In light of this objection, further information was sought by the Court of the IJA, by letter of 17th January, 2020. The following question was asked:

“In relation to the order for detention of three months, is it possible for the respondent to apply to the court on his surrender to be released while awaiting trial, subject to such restrictions as the court considers appropriate?”

The IJA replied by letter dated 28th January, 2020, in which the IJA stated that:

“the hearing regarding the examination of the request of the defender of the accused Jakub stated Lyszkiewicz to change the preventive measure was appointed by the District Court in Rzeszów on 03.02.2020 at 15:20.”

14 Further information was sought by letter of 6th February, 2020 as to the outcome of the hearing of the District Court in Rzeszów. In its response to this inquiry the IJA stated that “by invalid decision of 03.02.2020 the District Court in Rzeszów don't accepted the request of the defender of the accused Jakub Lyszkiewicz to change the preventive measure of pre-trial detention.” The Court interprets this letter as meaning that the respondent's application to the Polish court to set aside the pre-trial detention order was unsuccessful. Mr. Przekwas had been retained by the respondent for the purpose of that application, and counsel for the respondent confirmed, at the hearing of this application, that this interpretation of the IJA's letter is correct - i.e. his application to the District Court in Rzeszów to vacate the pre-trial detention order was unsuccessful.

15 A second letter of Mr. Przekwas, dated 1st February, 2020, was also opened to the Court. This was a letter responding to questions asked of him by the respondent's solicitors. Although the questions are not repeated in his response, it is clear that Mr. Przekwas is advising, inter alia, on the procedures available to revoke or vary a pre-trial detention order. He outlines that such applications may be brought no sooner than three months from the date of the pre-trial detention order, and that the appeal is heard by the...