Minister for Justice and Equality v Grzegorz Lukaszka

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 07 July 2021
• Neutral Citation: [2021] IEHC 631
• Court: High Court
• Docket Number: [2019 No. 366 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Grzegorz Lukaszka

Respondent

[2021] IEHC 631

[2019 No. 366 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking an order for the surrender of the respondent to the Republic of Poland pursuant to a European arrest warrant – Whether surrender was precluded by reason of s. 45 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, sought an order for the surrender of the respondent, Mr Lukaszka, to the Republic of Poland pursuant to a European arrest warrant dated 16th December, 2014 (the EAW) issued by Judge Krzemianowski, of the District Court in Koszalin, as the issuing judicial authority. The respondent objected to surrender on the following grounds: (i) surrender was precluded by reason of s. 38 of the European Arrest Warrant Act 2003, as amended, in that correspondence could not be established between the offences set out in the EAW and an offence under the law of the State; and (ii) surrender was precluded by reason of s. 45 of the 2003 Act, in that the sentence had been imposed in absentia and the requirements of that section had not been met.

Held by the High Court (Burns J) that correspondence had been made out. Burns J dismissed the respondent’s objection in that regard. He was satisfied on the basis of the specific documentation before the Court that the hearing on 2nd December, 2011 involved the variation of the nature of a sentence by the exercise of a discretionary power and so fell outside the ambit of the Court of Justice of the European Union decision in Ardic (Case C-571/17 PPU) (2017) and the Supreme Court decision in Minister for Justice and Equality v Lipinski [2017] IESC 26. He held that, in such circumstances, the hearing on 2nd December, 2011, imposing the sentence of imprisonment, was a hearing in absentia and must meet the requirements of Article 4a of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended, and s. 45 of the 2003 Act. He held that such compliance had not been established.

Burns J refused surrender.

Application refused.

Judgment of Mr. Justice Paul Burns delivered on the 7th day of July, 2021

1 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 16th December, 2014 (“the EAW”) issued by Judge Tomasz Krzemianowski, of the District Court in Koszalin, as the issuing judicial authority (case reference II Kop 90/14).

2 Part B of the EAW indicates that the surrender of the respondent is sought to enforce a judgment of the local court in Szczecinek dated 22nd December, 2009 (case reference II K 753/09) imposing a sentence of 150 days' imprisonment and part C indicates that 148 days remain to be served. Part F of the EAW indicates that a sentence of limitation of freedom was originally imposed but this was subsequently changed into a prison sentence by order dated 2nd December, 2011.

3 The EAW was endorsed by the High Court on 11th November, 2019 and the respondent was arrested and brought before the High Court on 26th February, 2020.

4 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. This was not put in issue by the respondent.

5 I am further 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.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 are met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.

7 The respondent objects to surrender on the following grounds:-

• (i) surrender is precluded by reason of s. 38 of the Act of 2003, in that correspondence could not be established between the offences set out in the EAW and an offence under the law of the State, and

• (ii) surrender is precluded by reason of s. 45 of the Act of 2003, in that the sentence had been imposed in absentia and the requirements of that section had not been met.

Correspondence

8 At part E of the EAW, it is stated that it relates to one offence, the circumstances of which are described as follows:-

“On 4 November 2009 in Szczecinek at an apartment at no. 9/1 Zielona Street, against the law, he was in possession of 1 gram of intoxicant in the form of marihuana.”

9 The Court requested additional information from the issuing judicial authority in respect of the EAW including, inter alia:-

• “1. Please indicate the precise nature of the substance which Mr Grzegorz Lukaszka was found to have possessed.

• 2. Please indicate the chemical compound of the substance described as marihuana and/or provide a copy of the certificate of scientific analysis of the substance.”

10 The following response was received:-

“With regard to the substance that was secured with Grzegorz Lukaszka, that according to the protocol of use of the drug tester Nark 2 Fast Blue B Salt reagent, the dried green plant was tested, secured on 04.11.2009 from Grzegorz Lukaszka, and that the test was positive for the presence of marijuana in the tested substance, however, the aforementioned test did not indicate the exact nature of the substance that Grzegorz Lukaszka possessed, only establishing that it was marijuana. Moreover, no scientific analysis of the substance was carried out in the conducted proceedings, which makes it impossible to indicate the chemical compound of the substance defined as marijuana, secured from Grzegorz Lukaszka.”

11 Counsel for the applicant submitted that the acts set out in the EAW would, if committed in this State, amount to the offence of unlawful possession of a controlled drug, namely cannabis, contrary to s. 3 of the Misuse of Drugs Act, 1977, as amended (“the Act of 1977”). Counsel for the respondent submits that “marijuana” was not a controlled drug under that Act and the legislation did not refer to same. He further submits that marijuana in some forms could be possessed without committing an offence and used the example of hemp made from the marijuana plant. He submitted that as no analysis of the substance was available, it was not possible to establish correspondence.

12 Counsel on behalf of the applicant referred the Court to Minister for Justice v. Wicinski [2011] IEHC 169 in which Poland sought the surrender of Mr. Wicinski to serve sentences in respect of, inter alia, possession of “ marihuana”. An argument similar to that submitted in this case was made on behalf of Mr. Wicinski and was dismissed by the Court. Edwards J. held at para. 40:-

“40. The Court does...