Minister for Justice and Equality v Andrzek Gozdyra

• Jurisdiction: Ireland
• Judge: Ms. Justice Caroline Biggs
• Judgment Date: 10 February 2022
• Neutral Citation: [2022] IEHC 143
• Court: High Court
• Docket Number: [2021 No. 363 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Andrzek Gozdyra

Respondent

[2022] IEHC 143

[2021 No. 363 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 44 – Applicant seeking an order for the surrender of the respondent to the Republic of Poland pursuant to a European arrest warrant – Whether surrender was prohibited by s. 44 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Gozdyra, to the Republic of Poland pursuant to a European Arrest Warrant dated the 1st of December 2010 (the EAW). The EAW was issued by Ms Pawlowska, Judge of Radom Provincial Court as the issuing judicial authority. The EAW sought the surrender of the respondent in order to prosecute him in respect of alleged sexual offences. The respondent objected that the issue of whether Mr Gozdyra’s surrender to Poland for the alleged rape on five occasions of three women during a period of time spanning June – October 2006 in Bristol, the United Kingdom, was prohibited under s. 44 of the European Arrest Warrant Act 2003; it was the subject of a previous refusal to endorse a European Arrest Warrant Act in respect of those alleged offences. The respondent maintained that the issue of his surrender was therefore subject to an issue estoppel and/or subject to a cause of action estoppel and/or the changes to statute did not interfere with his vested rights. The respondent submitted that the applicant had not established the relevant statutory basis upon which the requesting Member State purported to prosecute the applicant, in Poland, for acts alleged to have been committed in the United Kingdom in 2006; it had not been established that any of the complainants were in fact Polish citizens, or indeed the basis upon which the requesting member state asserted that it had a right to prosecute the respondent for the alleged acts. Strictly without prejudice to the foregoing objections, it was pleaded that s. 44 of the 2003 Act, on its proper interpretation, prohibited the surrender of the respondent. The respondent submitted that his surrender to Poland would constitute a breach of his fundamental rights under the Constitution as protected under s. 37(1)(b) of the 2003 Act or further or in the alternative under 37(1)(a) relating to his rights under the European Convention on Human Rights and its Protocols; in particular, surrender would cause a breach of his fair trial rights pursuant to, inter alia, the Convention and Article 6 of the European Convention on Human Rights. The respondent asserted that the lack of an independent judiciary in Poland and other changes, eroding the rule of law in the requesting member state, meant that he could not receive a fair trial in that jurisdiction.

Held by Biggs J that the applicant fairly conceded that it could not be suggested that the United Kingdom was a convention state. Biggs J held that the requirements of s. 3(3) of the Criminal Law Extraterritorial Jurisdiction Act 2019 could not be satisfied; as a consequence surrender was prohibited by s. 44 of the 2003 Act. The court did not adjudicate on any of the other points of objection raised by the respondent.

Biggs J held that the court would make an order refusing the application for surrender.

Application refused.

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 10th day of February, 2022

1 By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Poland pursuant to a European Arrest Warrant dated the 1st of December 2010 (“the EAW”). The EAW was issued by Agnieszka Pawlowska, Judge of Radom Provincial Court as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent in order to prosecute him in respect of alleged sexual offences.

3 The respondent was arrested on the 16th of December 2021, on foot of a Schengen Information System II alert, and brought before the High Court on that date. The EAW was produced before the High Court on the 21st of December 2021.

4 I am satisfied that the person before the court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

5 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 for consideration in this application for surrender of the respondent.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. Each of the offences in respect of which surrender of the respondent is sought carries a maximum penalty in excess of twelve months imprisonment.

7 I am satisfied that correspondence can be established between the offences referred to in the EAW and offences under the law of this State, viz. Rape contrary to Section 2 of the Criminal Law Rape Act 1981.

8 As surrender is sought to prosecute the respondent, no issue arises under s. 45 of the Act of 2003.

9 The respondent's Points of Objection are as follows:

(A) “Res Judicata/ Issue Estoppel/ Cause of Action Estoppel

• I. The issue of whether Mr. Gozdyra's surrender to Poland for the alleged rape on five occasions of three women; Anna Turek; Renata Prawda; Katarzyna Wojak; during a period of time spanning June – October 2006 in Bristol, the United Kingdom, is prohibited under section 44 of the European Arrest Warrant Act 2003. It is the subject of a previous refusal to endorse a European Arrest Warrant Act in respect of these alleged offences, by The Honourable Mr. Justice John Edwards. A transcript of the decision of Mr. Justice Edwards has been directed by this Honourable Court and the respondent reserves the right to advance further points on this grounds when the said transcript is to hand.

• II. The respondent maintains that the issue of his surrender is therefore subject to an issue estoppel and/or subject to a cause of action estoppel and/or the changes to statute do not interfere with his vested rights.

• III. The applicant has not established the relevant statutory basis upon which the requesting Member State purports to prosecute the applicant, in Poland, for acts alleged to have been committed in the United Kingdom in 2006. It has not been established that any of the above named complainants are in fact Polish citizens, or indeed the basis upon which the requesting member state asserts that it has a right to prosecute the respondent for the alleged acts.

• IV. Strictly without prejudice to the foregoing objections, it is pleaded that Section 44 of the Act of 2003, on its proper interpretation, prohibits the surrender of the respondent.

(B) Fair Trial Rights

• V. The reasons hereinafter pleaded, the surrender of Mr. Gozdyra to Poland would, constitute a breach of his fundamental rights under the Constitution as protected under section 37 (1) (b) of the European Arrest Warrant Act, 2003 or further or in the alternative under 37 (1) (a) relating to his rights under the European Convention on Human Rights and its Protocols. In particular, surrender would cause a breach of his Fair Trial rights pursuant to, inter alia, the Convention and Article 6 of the European Convention on Human Rights.

• VI. The trial of this aspect cannot take place in accordance with fundamental rights due to, inter alia, the lack of coercive powers over the witnesses which are located here in the United Kingdom, and over the Police authorities in that jurisdiction, that no longer forms part of the European Union. It is not clear what the status of the allegations were in England, and whether or not a decision had been made to prosecute the respondent in that jurisdiction. It is also unclear why the English authorities did not issue a European Arrest Warrant in respect of the respondent. It is not clear from the European Arrest Warrant what material the requesting Member State purports to base the prosecution of the respondent upon, and whether any assistance was provided by the English authorities in this regard.

(C) Surrender a breach of the fundamental rights of the respondent pursuant to the Charter of Fundamental Rights of the European Union/Rule of Law

• VII. The applicant asserts that on account of the recent changes in the landscape of the Law of Poland, and the Judgments of the CJEU in joined cases C-345/29PPU and C-412/20 PPU the judgments of 19th November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982) and of 26 March 202, Miasto Lowicz and Prokurator Generalny (C-558/18 and C-563/18, EU:C:2020:234); the judgment of Sad Najwyzszy (Izba Pracy I Ubezpieczen Spolecznych) (Supreme Court, Chamber of Labour and Social Insurance) of 5 December 2019, in which that court, ruling in the dispute which gave rise to the request for a preliminary ruling in Case C-585/18, held that the Krajowa Rada Sadownictwa (National Council of the Judiciary, Poland) was not, in its current composition, an impartial body independent of the...