Minister for Justice and Equality v Orlowski
| Jurisdiction | Ireland |
| Judge | Mr. Justice Paul Burns |
| Judgment Date | 02 March 2021 |
| Neutral Citation | [2021] IEHC 160 |
| Docket Number | [2019 No. 334 EXT.] |
| Court | High Court |
[2021] IEHC 160
Paul Burns
[2019 No. 334 EXT.]
THE HIGH COURT
By this application the applicant seeks an order for the surrender of the respondent to the Republic of Poland (“Poland”) pursuant to a European arrest warrant dated 1st August, 2019 (“the warrant”), issued by Judge Jarosław Leszczyński, Judge of the Circuit Court in Łódź, as the issuing judicial authority. The surrender of the respondent is sought to serve the remaining 6 months of a sentence of 3 years' imprisonment imposed on the respondent in 2001 in respect of four offences committed in 1992, when the respondent was 17 years old.
The offences referred to in the warrant may be briefly set out as follows:-
I. violent assault on a police officer;
II. insulting a public officer in the performance of his official duties;
III. burglary; and
IV. unlawful taking of a vehicle.
The warrant was endorsed by the High Court on 11th November, 2019 and the respondent was arrested and brought before this Court on 21st June, 2020.
I am satisfied that the person before the Court is the person in respect of whom the warrant was issued. This was not put in issue by the respondent.
I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.
I am satisfied that the minimum gravity requirements of the Act of 2003 are met. The remaining sentence to be served is 6 months' imprisonment.
The respondent delivered points of objection, dated 29th June, 2020, including that surrender should be refused due to the following:-
(i) a lack of correspondence in respect of offence II;
(ii) non-compliance with s. 45 of the Act of 2003: and
(iii) abuse of process.
As regards the objection based on a lack of correspondence, in addition to arguing there was no correspondence made out on the facts, counsel for the respondent argued that the Court was bound by an earlier decision of the High Court between the same parties which held that no such correspondence existed.
It was agreed between the parties, and confirmed by the issuing Member State, that the sentence in question was a composite/aggregate sentence in respect of all of the offences in question so that it was not possible to allocate a particular amount of the sentence to a particular offence. In such circumstances, it was agreed between the parties, in line with the decision of the Supreme Court in Minister for Justice, Equality and Law Reform v. Ferenca [2008] IESC 52, [2008] 4 I.R. 480, that unless correspondence could be made out in respect of all of the offences, then the Court should refuse surrender.
It was further agreed between the parties and the Court that the Court should first rule upon the issue of correspondence, as this could dispose of the matter.
The requirement of correspondence between offences in the EAW and offences under the law of the State, or double criminality as it is sometimes referred to, is set out at s. 38(1) of the Act of 2003:-
“38. (1) Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in respect of an offence unless—
(a) the offence corresponds to an offence under the law of the State, and—
(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or
(ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment,
or
(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.”
The concept of correspondence is set out at s. 5 of the Act of 2003:-
“5. For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State.”
In Minister for Justice v. Dolny [2009] IESC 48, Denham J., as she then was, explained how the Court should approach the issue of correspondence at para. 38 as follows:-
“In addressing the issue of correspondence it is necessary to consider the particulars on the warrant, the acts, to decide if they would constitute an offence in the State. In considering the issue it is appropriate to read the warrant as a whole. In so reading the particulars it is a question of determining whether there is a corresponding offence. It is a question of determining if the acts alleged were such that if committed in this jurisdiction they would constitute an offence. It is not a helpful analogy to consider whether the words would equate with the terms of an indictment in this jurisdiction. Rather it is a matter of considering the acts described and deciding whether they would constitute an offence if committed in this jurisdiction.”
Part E of the warrant sets out the circumstances of the commission of offence II as follows:-
“[reference to 4th May, 1992 and the circumstances of the commission of offence I] At the same time, using abusive words, the convict verbally insulted the victim and the other attending police officers.”
The category and legal qualification of the offence is given as:-
“Offence II – Article 236 Criminal Code 1969 – insulting a public officer during and in connection with the performance of his official duties.”
A further detailed description of the offence is given as follows:-
“Offence II – on 4 May, 1992 in Łęczna, Lubelskle Region, using abusive words verbally insulted police officers Ryszard Gomuła, Mieczysław Orkoń, Waldemar Cur, Piotr Jasielski, Piotr Kostyra, Tadeusz Ławnik, and Robert Jureczko during and in connection with the performance of their official duties.”
A request for additional information dated 9th October, 2019 was made pursuant to s. 20 of the Act of 2003. In respect of offence II, the following request was made:-
“4. The reason why surrender was refused in 2011 was that correspondence could not be established with Offence II, on the facts as described in the 2009 warrant. The law in Ireland has changed somewhat since then so it is possible that correspondence could, now, be established. To assist the Court in its assessment, you are invited to provide the following additional information:
(a) When Mr. Orlowski was led out of the flat and taken to the police car, were any members of the public present?
(b) Were Jacek Chmielewski, Grzegorz Arciemien, and/or Krystyna Bojarska present when he was led out of the flat and taken to the police car?
(c) Were the police officers identifiable as such at the time of the offence? If not, did they identify themselves to Mr. Orlowski as police officers?
(d) If Mr. Orlowski also engaged in any other form of behaviour at or around that time which could be considered threatening, abusive or insulting, please provide details.
(e) If Mr. Orlowski also engaged in any other form of behaviour which could be described as resisting, obstructing or impeding the police officers in the execution of their duties, at or around that time, please provide details.”
A reply was received dated 7th November 2019, which states, inter alia:-
“4. Advises that when Robert Orłowski was led out of the flat and taken to the police car:
(a) members of the public were present, i.e. at the time of the incident in the flat present were: Krystyna Bojarska (flat owner) and her daughters Anna and Monika (last names not identified) and Pawel Koskiuk;
(b) Jacek Chmielewski, Grzegorz Arciemen and Krystyna Bojarska were present when Robert Orłowski was led out of the flat and into the police car: Krystyna Bojarska was in the flat, and Jacek Chmielewski and Grzegorz Arciemen were stopped and led out together with Robert Orłowski;
(c) At the time of the offence the attending Police officers were identifiable as Police officers on duty;
(d) Robert Orłowski already prior to 1992 committed acts of cruelty, in particular he killed rabbits with a pair of secateurs, his behaviours entailed police interventions; he was aggressive towards police officers, it happened that in order to avoid arrest he used on policemen: a knife, physical force, and set a dog on them.”
Counsel for the respondent relied upon the fact that the requested surrender of the respondent in respect of these same offences and sentence had been the subject of earlier proceedings, Min for Justice and Equality v. Orlowski [2011] IEHC 374 (herein referred to as “ Orlowski No. 1”), in which surrender was refused by Edwards J. on 7th October, 2011, due to a lack of correspondence between offence II and an offence under Irish law.
It is not entirely clear from the documentation furnished why the Polish authorities decided to issue a fresh warrant in respect of the same matter in 2019, approximately eight years later, but it appears to have been as a result of the relevant enforcement period being extended.
Counsel on behalf of the applicant submitted that a refusal to surrender on foot of a particular warrant did not prevent a fresh warrant being issued seeking the surrender of the requested person in respect of the same offences/sentence. In relation to the...
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