Minister for Justice & Equality v Wojciech Orlowski

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 04 February 2021
• Neutral Citation: [2021] IEHC 109
• Date: 04 February 2021
• Court: High Court
• Docket Number: [Record No. 2015/145 EXT] [Record No. 2015/160 EXT] [Record No. 2017/50 EXT]

Between

Minister for Justice & Equality

Applicant

and

Wojciech Orlowski

Respondent

[2021] IEHC 109

[Record No. 2015/145 EXT]

[Record No. 2015/159 EXT]

[Record No. 2015/160 EXT]

[Record No. 2017/50 EXT]

THE HIGH COURT

European arrest warrants – Surrender – Correspondence – Applicant seeking the surrender of the respondent pursuant to European arrest warrants – Whether correspondence was established

Facts: The Republic of Poland issued four European arrest warrants (the EAWs) seeking the surrender of the respondent, Mr Orlowski, in order to prosecute him for offences and also in order to enforce existing sentences of imprisonment arising out of convictions of offences already handed down in Poland. Objections to surrender were raised in connection with specific offences, and also generally in relation to all EAWs. Objections to the first EAW concerned correspondence, s. 41 of the European Arrest Warrant Act 2003 and retrospective criminalisation. Objections to the second EAW concerned reasonable inferences and ss. 16(1)(c) and 45 of the 2003 Act. Objections to the third EAW concerned correspondence. Objections to the fourth EAW concerned uncertainty as to the status or contents of the EAW, by reason of the correspondence concerning the amendment to the same, and the repeal of one of the legislative provisions referred to in the EAW as being relevant under Polish law to the application. Objections applicable to all EAWs concerned s. 37 of the 2003 Act, EU Directive 2012/13 and rule of law concerns in Poland.

Held by the High Court (Binchy J) that there was not enough information provided for the Court to be satisfied that possession of the substance described at para. E. IV of the first EAW would constitute an offence in Ireland’s jurisdiction. Binchy J held that as far as s. 41 of the 2003 Act was concerned, it was not established that the offences were the same and that the surrender of the respondent was prohibited by that section. Binchy J held that, regarding retrospective criminalisation, the offences concerned were offences under a different legislative provision at the time that the offences were alleged to have been committed by the respondent. Binchy J was satisfied that the information provided in the second EAW in relation to the fifth offence was sufficient to establish correspondence with an offence under s. 10(1) of the Criminal Law (Sexual Offences) Act 1993. Binchy J held that if the kind of enquiry into service of the proceedings envisaged by Baker J at para. 90 of her judgment in Minister for Justice and Equality v Zarnescu [2020] IESC 59 is to have any meaning, it must, in a case such as this, entitle the Court to draw the conclusion that there had been no breach of the respondent’s rights of defence, and that he either knew of the date of the proceedings or failed to exercise any diligence at all about it. Binchy J held that the actions of the respondent as set forth in paras. E. II-IV of the third EAW would, if committed in Ireland’s jurisdiction, constitute an offence under s. 17 of the Public Order Act 1994. Binchy J held that it was apparent from the decisions of Donnelly J in Minister for Justice and Equality v Swacha [2016] IEHC 796 and Minister for Justice and Equality v Zielinski [2017] IEHC 419, as well as the decision of the Supreme Court in Minister for Justice, Equality and Law Reform v O Fallúin [2010] IESC 37, that the Court was not concerned with the process by which the fourth EAW was amended. Binchy J held that if a repealed provision was included in error, it was hard to see how that could undermine the application, in circumstances where other legislative provisions were also indicated as being applicable. Binchy J found that nowhere in the respondent’s affidavits did he raise any matters sufficient to engage an objection grounded upon s. 37 of the 2003 Act. Binchy J held that the objection grounded on EU Directive 2012/1 must be rejected having regard to the decisions of Donnelly J in Minister for Justice v EP [2015] IEHC 662 and Kennedy J in Farrell v Superintendent of Milford Garda Station, Maguire v Superintendent of Letterkenny Garda Station [2019] IECA 278. Binchy J held that the respondent had not reached the very high threshold of satisfying the Court that, if surrendered, there were substantial grounds for believing he would be at a real risk of not receiving a fair trial by an independent and impartial tribunal.

Binchy J held that the respondent should be surrendered in respect of all of the matters for which his surrender was sought in connection of all four of the EAWs, save only the offence described in para. E(IV) of the EAW dated 4th December, 2012.

Application granted.

JUDGMENT of Mr. Justice Binchy delivered on the 4th day of February, 2021

1 This judgment is concerned with four European arrest warrants (the “EAWs”) issued by the Republic of Poland seeking the surrender of the respondent in order to prosecute him for offences and also in order to enforce existing sentences of imprisonment arising out of convictions of offences already handed down in Poland. Objections to surrender have been raised in connection with specific offences, and also generally in relation to all EAWs. I will first address the objections raised as regards specific offences, by reference to the EAW in which they arise.

The First EAW [2015/159 EXT]

2 The first EAW is dated 4th December, 2012, and was issued by a judge of the Court of Appeal of the Circuit Court in Lublin. It was endorsed by this Court on 13th August, 2015 and the respondent was arrested pursuant to same on 5th November, 2015.

3 At para. E of the first EAW, it is stated that it relates to a total of six offences. Following a request for information made by the central authority here to the central authority in Poland, it was clarified that the surrender of the respondent is not sought in connection with the first of the six offences, and so the surrender of the respondent is requested for the purposes of his prosecution for the offences described at paras. E. II-VI of the first EAW. Having regard to the objections raised to his surrender in connection with these offences, it is expedient to set these offences out in full as follows:-

“II. In the period known from the IV quarter of 2002 year until May 2003 year of dates closely unknown in Zamosc, lubelskie province, Radom, mazowieckie province and in Warsaw acting in intention taken in advance for the purpose of obtaining financial benefit jointly and in agreement with identified person, in short intervals of time and against regulations of statutory provisions he participated in dealing the considerable quantity of psychotropic substance in the form of not less than 85 grams of amphetamine and a considerable quantity of intoxicant in the form of not less than 5750 grams of marihuana in such a way that he acquired – from the identified person in total not less than 3250 grams of marihuana in at least five transactions including the batches of the drug of weight 500 grams, 1000 grams and in one case 750 grams, — as well as from unidentified persons 2500 grams of marihuana in portions of 500 grams and in one case of weight 300 grams and also 85 grams of amphetamine and then he sold off to the identified person 2300 grams of marihuana in five batches including in four cases weight of 500 grams of the drug and one time of 300 grams as well as 85 grams of amphetamine in portions of weight from 5 to 10 grams and in one case 60 grams, moreover the remaining quantity of marihuana to unidentified persons;

III. on date 6th October 2004 year in Zamosc, lubelskie province against the regulations of statutory provisions he participated in dealing the psychotropic substance in the form of 30 tablets of ecstasy, in such a way that he delivered the drug with the intermediary of identified person Adam Jarkiewicz;

IV. on date 6th October 2004 year in Zamosc, lubelskie province against regulations of statutory provisions he possessed a precursor in the form of 50 millilitres of BMK (benzyl methyl ketone) which he next delivered to Adam Jarkiewicz with the intermediary of other identified person, for the purpose of prohibited production of psychotropic substance;

V. in the period from 31st March 2005 year until 16th May 2005 year in Zamosc and in other localities of lubelskie province, acting in organized criminal group in executing the intention taken in advance, in short intervals of time and against the regulations of statutory provisions he participated in dealing the considerable quantities of psychotropic substances in quantity 1200 grams of amphetamine and 4200 tablets of ecstasy, in such a way that he purchased the drugs from unidentified persons and next he sold them off to Jakub Wisniewski and Marcin Bednaruk on date 31st March 2005 year 2000 pieces of ecstasy tablets and 200 grams of amphetamine, on date 4th April 2005 year 1500 pieces of ecstasy tablets and 500 grams of amphetamine and on date 16th May 2005 700 pieces of ecstasy tablets and 500 grams of amphetamine, for the purpose of their further distribution;

VI. on date 19th October 2005 year in Warsaw using violence in such a way that during the undertaken attempt of opening from the outside left front door of a vehicle driven by him make Opel Omega registration numbers LLY 5056 by the police officer assistant chief constable Jacek Setniewski of the Division III Central Bureau of Investigation Main Police Headquarters who was standing in the street, he suddenly moved the vehicle above mentioned from the place and continued driving straight – he forced the police officer above mentioned to discontinue his legal official activity;”

4 A notice of objection in relation to the first EAW was filed on behalf of the respondent on 25th January, 2016. The following objections were raised:-

• (1) The offences in connection with which the respondent is...