Minister for Justice and Equality v Leszek Stefan Lizurej

JurisdictionIreland
JudgeMr. Justice Paul Burns
Judgment Date22 November 2021
Neutral Citation[2021] IEHC 742
Docket Number[2018 No. 151 EXT.] [2018 No. 211 EXT.]
Year2021
CourtHigh Court
Between
Minister for Justice and Equality
Applicant
and
Leszek Stefan Lizurej
Respondent

[2021] IEHC 742

[2018 No. 151 EXT.]

[2018 No. 210 EXT.]

[2018 No. 211 EXT.]

THE HIGH COURT

European arrest warrants – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to the Republic of Poland pursuant to three European arrest warrants – Whether correspondence existed between the alleged offence outlined in the second warrant and offences in the State

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Lizurej, to the Republic of Poland pursuant to three European arrest warrants as follows: European arrest warrant dated 25th March, 2014, issued by Judge Wagnerowski, of the Regional Court in Tarnow, as the issuing judicial authority (EAW 1) – Proceedings Record No. 2018/151 EXT; European arrest warrant dated 13th December, 2012, issued by Judge Derela, of the Third Criminal Division of the Regional Court in Kielce, as the issuing judicial authority (EAW 2) – Proceedings Record No. 2018/210 EXT; and European arrest warrant dated 23rd May, 2016, issued by Judge Broda, of the Third Criminal Division Court in Sad Okregowy in Kielce, as the issuing judicial authority (EAW 3) – Proceedings Record No. 2018/211 EXT. The EAWs sought the surrender of the respondent in order to enforce sentences of imprisonment imposed upon him as follows: as regards EAW 1, a sentence of one-year imprisonment imposed on 16th December, 2010, of which 11 months and 28 days remained to be served (case reference number IIK 509/10); as regards EAW 2, a sentence of three years’ imprisonment imposed on 31st October, 2006, of which one year, two months and 24 days remained to be served (case reference numbers IIK 37/04, II K118/04 and IIK 673/04); and as regards EAW 3, a sentence of four years’ imprisonment imposed on 23rd February, 2006, of which two years and seven months remained to be served (case reference number IIK 90/05). The respondent contested his surrender on the basis that: (1) all three EAWs concerned convictions in absentia, contrary to s. 45 of the European Arrest Warrant Act 2003; (2) correspondence did not exist between the alleged offence outlined in the second warrant and offences in the State, as required by s. 38 of the Act; and (3) there was a lack of clarity surrounding the nature of offences for which surrender was sought.

Held by Burns J that surrender of the respondent on foot of EAW 1 was not precluded by reason of Part 3 of the 2003 Act or any provision of that Act. On the basis of the information before Burns J, he was not satisfied to draw the inference that the respondent was drunk at the time of his offending in Poland and therefore, Burns J found that correspondence had not been established. Burns J was satisfied that surrender of the respondent on foot of EAW 2 was precluded by reason of s. 38 of the 2003 Act. Burns J held that surrender of the respondent on foot of EAW 3 was not precluded by reason of Part 3 of the 2003 Act or any provision of that Act.

Burns J held that, having dismissed the respondent’s objections to surrender in respect of EAW 1 and EAW 3, the Court would make an order for surrender in respect of each of those EAWs pursuant to s. 16 of the 2003 Act. Burns J held that, as regards EAW 2, the Court would refuse to make an order for surrender.

Application granted in part.

JUDGMENT of Mr. Justice Paul Burns delivered on the 22nd day of November, 2021

1

By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Poland (“Poland”) pursuant to three European arrest warrants as follows:-

  • — European arrest warrant dated 25th March, 2014, issued by Judge Rafal Wagnerowski, of the Regional Court in Tarnow, as the issuing judicial authority (“EAW 1”) – Proceedings Record No. 2018/151 EXT;

  • — European arrest warrant dated 13th December, 2012, issued by Judge Maria Derela, of the Third Criminal Division of the Regional Court in Kielce, as the issuing judicial authority (“EAW 2”) – Proceedings Record No. 2018/210 EXT; and

  • — European arrest warrant dated 23rd May, 2016, issued by Judge Renata Broda, of the Third Criminal Division Court in Sad Okregowy in Kielce, as the issuing judicial authority (“EAW 3”) – Proceedings Record No. 2018/211 EXT.

2

The EAWs seek the surrender of the respondent in order to enforce sentences of imprisonment imposed upon him as follows:-

  • — as regards EAW 1, a sentence of one-year imprisonment imposed on 16th December, 2010, of which 11 months and 28 days remains to be served (case reference number IIK 509/10);

  • — as regards EAW 2, a sentence of three years' imprisonment imposed on 31st October, 2006, of which one year, two months and 24 days remains to be served (case reference numbers IIK 37/04, II K118/04 and IIK 673/04); and

  • — as regards EAW 3, a sentence of four years' imprisonment imposed on 23rd February, 2006, of which two years and seven months remains to be served (case reference number IIK 90/05).

3

Each EAW was endorsed by the High Court as follows:-

  • — EAW 1 was endorsed by the High Court on 14th May, 2018;

  • — EAW 2 was endorsed by the High Court on 23rd July, 2018; and

  • — EAW 3 was endorsed by the High Court on 25th June, 2018.

4

The respondent was arrested on foot of all three EAWs on 13th June, 2021 and brought before the High Court on 14th June, 2021 on foot of same.

5

I am satisfied that the person before the Court, the respondent, is the person in respect of whom each of the EAWs has been issued. No issue was raised in this regard.

6

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 these applications and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

7

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

EAW 1
8

At part E of EAW 1, it is stated that it relates to one offence. I am satisfied that correspondence can be established between that offence and an offence under the law of the State, namely unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs Act, 1977, as amended. Correspondence was not disputed.

9

At part D of EAW 1, it is indicated that the respondent did not appear in person at the trial resulting in the decision. It is further indicated:-

“1.a. The person was summoned in person on 22.09.2010 and thereby informed of the scheduled date and place of the trial which he then attended, however, did not appear at the subsequent trials, namely, on 8.11.2010 and 16.12.2010, the last of which resulted in the above court decision, whereas the person had been informed that a decision may be adjudged even if he did not appear for the trial.”

10

Also at part D, it is indicated:-

“the person did not request a retrial or appeal within the applicable time frame.”

11

I am satisfied that the reference to the respondent not requesting a retrial or appeal within the applicable timeframe has not been properly invoked by the issuing judicial authority. That particular sub-point of part D of EAW 1 is only relevant where the issuing judicial authority has sought to rely upon point 1.d. of the Table set out in s. 45 of the Act of 2003, and, in this instance, the issuing judicial authority has not done so. Therefore, the reference to the respondent not requesting a retrial or appeal has no independent significance and has no legal effect. It can, therefore, be ignored by this Court. Counsel for the respondent submits that the invocation of the subpoint referring to a failure to apply for a retrial or appeal has introduced an unacceptable level of ambivalence or confusion into part D of EAW 1 and that this Court cannot rely upon the invocation of point 1.a. of same. I reject that submission. Reading EAW 1 as a whole, together with all of the documentation before the Court, it is clear that point 1.a. at part D of EAW 1 has been appropriately indicated and relied upon by the issuing judicial authority.

12

At part F of EAW 1, it is indicated as follows:-

“The convicted was not present at the trial at which the sentence was passed, although he had appeared at the first trial; and since he was properly summoned for subsequent trials at which he did not appear without presenting notes of excuse, the court continued the trial process in his absence. Pursuant to the Polish law the adjudged sentence was not passed in default. The court ruling was not effectively appealed. The convicted did not appear at penal institution and searching for him by means of the warrant notice was ineffective as well. The convicted Leszek Lizurej is probably staying on the territory of Ireland or England. The statute of limitation on execution of the sentence expires no earlier than on 24 December 2025 and no later than on 24 December 2035.”

13

Counsel on behalf of the respondent submits that the reference to “ trials” at part D and part F of EAW 1 raised the possibility that there may in fact have been a number of different trials in this matter and, therefore, it was not possible to ascertain which of the trials the summons referred to in part D applied to.

14

I am satisfied reading EAW 1 as a whole that the reference to “ trials” is simply a reference to hearing dates in a single trial process. This is apparent from the wording at parts D and F of EAW 1. In particular, at part F of EAW 1 it is stated that, although the respondent appeared at the first trial, he did not appear thereafter and “ the court continued the trial process in his absence”. By additional information dated 12th July, 2021,...

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1 cases
  • Minister for Justice and Equality v Tomczak Slawomir
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    • High Court
    • 6 December 2021
    ...... the helpful judgment of Mr Justice Burns in Minister for Justice Equality and Law Reform v Lizurej [2021] IEHC 742 (“ Lizurej ”). In that case Mr Justice Burns considered similar issues to ......

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