Minister for Justice and Equality v Przbylski

• Jurisdiction: Ireland
• Judge: Ms. Justice Caroline Biggs
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] IEHC 735
• Court: High Court
• Docket Number: [2021 No. 37 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Robert Lech Przbylski

Respondent

[2022] IEHC 735

[2021 No. 37 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 Poland pursuant to a European arrest warrant – Whether the proposed surrender was in breach of s. 45 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 Przbylski, to the Republic of Poland pursuant to a European Arrest Warrant dated the 1st of February 2021 (the EAW). The EAW was issued by Circuit Court Judge Wieliczuk, as the issuing judicial authority. The EAW sought the surrender of the respondent in order to enforce a sentence of two years imprisonment which was imposed on the 17th of November 2006 in his absence for twenty, mostly fraud and driving-type offences. The respondent objected to surrender on the following grounds: (i) the proposed surrender was in breach of s. 45 of the European Arrest Warrant Act 2003 (as amended) because the respondent did not appear in person at the trial of the offences or when the sentence or detention order was imposed in respect of which the EAW was issued; and (ii) the proposed surrender was prohibited by s. 37 of the 2003 Act because it constituted a breach of his constitutional rights to fair procedures, because of the cumulative inordinate and unjustified delay in issuing, endorsing and executing the warrant.

Held by Biggs J that there was no culpable delay on the part of the executing or the issuing judicial authority. Biggs J held that the respondent’s circumstances did not go beyond the norm and the presumption in s. 4A of the 2003 Act had not been rebutted. In Biggs J’s view, in accordance with the judgments of Minister for Justice and Equality v Zarnescu [2020] IESC 59 and Case C‑270/17 PPU Tadas Tupikas, it was the duty of the Court to ensure that the rights of the respondent were upheld. Biggs J held that this was achieved by taking due consideration of all the circumstances characterising the case before it, including the information which it may, itself, obtain. Biggs J noted that the respondent mandated a lawyer to act and appear for him at the hearing of the matter; that lawyer did not turn up to the hearing and could provide no explanation as to why that was. Biggs J found that the respondent had acted candidly and openly in relation to that aspect of matters, with the assistance of his solicitor in Ireland’s jurisdiction. Biggs J held that the Court must apply a purposive interpretation to the legislation. In all of the circumstances, Biggs J held that there had been a breach of the respondent’s defence rights under s. 45 of the 2003 Act and therefore surrender was prohibited by that section.

Biggs J made an order refusing the application for surrender to the Republic of Poland.

Application refused.

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 10th day of October, 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 1 ^st of February 2021 (“the EAW”). The EAW was issued by Circuit Court Judge Joachim Wieliczuk, as the issuing judicial authority.

2 . The EAW seeks the surrender of the respondent in order to enforce a sentence of two years imprisonment which was imposed on the 17 ^th of November 2006. The warrant seeks the surrender of the respondent to serve the cumulative two-year sentence imposed in his absence for twenty, mostly fraud and driving-type offences.

3 . The EAW was endorsed by the High Court on the 15 ^th day of February 2021 and the respondent was arrested and brought before the High Court on the 18 ^th day of February 2022.

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, and s 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

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

7 . The respondent objected to surrender on a number of extensive grounds, however, Counsel for the respondent confirmed during the oral hearing and in his written submissions, that the only grounds being relied upon were as follows:

I. Non-compliance with Section 45 of the Act of 2003:

The proposed surrender of the respondent, for the offences set out in the EAW, is in breach of Section 45 of the European Arrest Warrant Act of 2003 (as amended) because the respondent did not appear in person at the trial of the offences or when the sentence or detention order was imposed in respect of which the EAW was issued. The trial of the respondent took place, in absentia. The respondent did not receive any notification regarding a date for a Court hearing and he did not receive the judgment from the Court. The European Arrest Warrant Act 2003 as amended, does not disclose with sufficient particulars and sufficient clarity how the final sentence came into being and on that premise the surrender of the respondent should be refused.

II. Undue interference with the respondent's Article 8 rights, particularly on the ground of delay:

The proposed surrender of the respondent in respect of the said offences to the issuing State is prohibited by Section 37 of the Act of 2003 (as amended), because it constitutes, inter alia;

(i) A breach of his constitutional rights to fair procedures, inter alia because of the cumulative inordinate and unjustified delay in issuing, endorsing and executing the within warrant.

8 . The respondent swore an affidavit dated 4 ^th April 2022 wherein he averred to the following:

• • The respondent moved to Ireland in August 2006 and has lived here ever since. His two children, now aged 24 and 22, live with him and his wife.

• • He recognises the voluntary submission to penalty provided by the Polish authorities on the 1 ^st April 2022, dated the 29 ^th May 2006. He confirms that he signed that notice. He did so on the advice of a lawyer, Maciej Luczynski, who told him that if he did this, he would receive a suspended sentence. He asked the lawyer to represent him. He now understands that the lawyer did not represent him at the sentence hearing and that a sentence of two years was imposed on him.

• • He never received any notification of the imposition of this penalty or any information about his capacity to appeal.

• • In 2006, the respondent's father lived with his step-mother at ul. Bohaterow Westerplatte 6/3 in Gorzów Wlkp. He did not live there. He had previously resided at ul. Czartoryskiego 18/3 in Gorzów Wlkp. He rented that property from the local council between 2001 and 2003. When his National ID card issued on the 23 ^rd October 2001, this was the address at which he resided and this address features on his then issued ID card. Between 2003 and 2005 he lived at Oginsekiego 14D/12 in Gorzów Wlkp, a house he had purchased. He sold this property to repay money taken in the criminal offences which are the subject of the warrant. Between 2005 and leaving for Ireland in 2006, his wife lived with her mother. He was working as a mechanic in Germany (close to the Polish border). He was initially contacted by Police about these offences in October 2005. He returned to Poland every second day to sign in at the Police station in Gorzów Wlkp for a period but he cannot, at this point, be certain of when this requirement stopped. It certainly stopped after he signed the voluntary submission to penalty.

• • Between signing the voluntary submission to penalty form in May 2006 and the hearing on the 17 ^th November 2006, he never received any notice informing him of the hearing date. He was unaware of the hearing date. At all times, he understood that he would receive a suspended sentence.

• • Since moving to Ireland, the respondent has worked as a truck driver. His wife and children (then aged 8 and 6) came to Ireland in the weeks after he did. His children have been educated in Ireland. His son, aged 24 commenced a course of study in September 2022. His daughter, aged 22, is currently studying Psychology.

• • The respondent's wife raised their children in Ireland. She is 49 years of age. Last year, she was diagnosed with lung cancer. The respondent understands that the form of lung cancer she suffers with is called Adenocarcinoma, which is an aggressive form. She has received treatment in the Mater Hospital and in the Beacon Hospital. In the last month, she was treated in hospital for almost two weeks and had an operation which involved the removal of a portion of one lung. She is currently recuperating at home but requires assistance and will continue to require assistance. The respondent is now her principal carer and this illness, coupled with these proceedings, are causing him a great deal of stress.

• • The respondent avers that he is unaware of the reason for the delay in seeking his surrender. His father, who lived at ul. Bohaterow Westerplatte 6/3 in Gorzów Wlkp, knew that he had moved to Ireland. He lived at that address until his death in 2016. He states that he does not understand how it has taken over 15 years to seek his surrender to Poland.

9

The ‘Fraud’ box has been ticked under Part E.1. of the warrant pursuant to Article 2.2. in relation to the first fifteen offences. No manifest error is apparent. There remains five offences for which...