Minister for Justice & Equality v Minierski

• Jurisdiction: Ireland
• Judge: Ms. Justice Caroline Biggs
• Judgment Date: 24 October 2022
• Neutral Citation: [2022] IEHC 634
• Court: High Court
• Docket Number: [2021 No. 307 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Marcin Krzysztof Minierski

Respondent

[2022] IEHC 634

[2021 No. 307 EXT.]

THE HIGH COURT

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 24 ^th 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 6 ^th of June 2016 (“the EAW”). The EAW was issued by Jerzy Zielinski, Judge of the Circuit Court in Świdnica, as the issuing judicial authority.

2 . The respondent was arrested on the 1 ^st of November 2021, on foot of a Schengen Information System II Alert, and brought before the High Court on that date. The EAW was produced to the High Court on the 11 ^th of November 2021.

3 . The respondent is sought for surrender for the purposes of serving a sentence of imprisonment of 4 years, 3 years and 4 months remains to be served.

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, 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.

7 . Part E. of the warrant states:

“On the 30 ^th of October 2004 in Wałbrzych, in the province of Dolny Śląsk, acting jointly and in co-operation [the respondent] took part in the beating-up of Grzegorz Bajorski in the following way: they repeatedly punched and kicked him on the head and all over the body, which resulted in the said male's suffering such injuries as: numerous skin abrasions on the head, face, hips, left hand and the neck, intradermal blood extravasations on the head, on the face and on the neck, a contused wound in the chin penetrating the oral vestibule and with the front teeth knocked out, a damage to the tongue and mucosa, numerous post-trauma oedemas in the area of the face and the neck as well as injuries to the facial skeleton. The said injuries led to the loss of consciousness, to the bleeding into the respiratory track and to the swallowing of blood into the alimentary tract. They constitute a bodily harm specified in Art.156 §1 of C.Pen. being an actual risk to life as they were the injuries to the facial skeleton leading to the loss of consciousness, to impaired defence reflex, to major bleeding into the respiratory track and to a decrease in the blood oxygenation to a dangerously low oxygen level, all which [sic] was to the detriment of Grzegorz Bajorski; this is an offence under Art.158 §2 of C. Pen. and Art.156 §1 (2) of C.Pen. in conj. with Art.11 §2 of C. Pen.”

8 . I am satisfied that correspondence can be established between the offences referred to in the EAW and offences under the law of this State, that is, assault causing harm contrary to Section 3 of the Non-Fatal Offences Against the Person Act, 1997 or, alternatively, an offence of causing serious harm contrary to Section 4 of the Non-Fatal Offences Against the Person Act, 1997.

9 . The respondent objected to surrender on the following grounds:

• • That surrender of the respondent is prohibited by Part 3 of the European Arrest Warrant Act and by the Framework Decision and it would otherwise by contrary to law.

• • That the respondent's surrender is prohibited by Section 37 of the European Arrest Warrant Act on the grounds of the breach of his Constitutional, his Charter, and his Convention rights, and it otherwise represents a disproportionate interference with his personal and/or his family rights.

• • That the surrender of the respondent would be contrary to Section 45 of the European Arrest Warrant Act, on the grounds of trial in absentia.

• • That the European arrest warrant asserts that the underlying domestic Polish decision became final on 14 ^th June, 2006, more than fifteen years ago. However, that appears to be inconsistent with the known facts of the case, and/or in any event, and in the light of the previous surrender proceedings it would be unfair to surrender the respondent who, in any event and without prejudice to the foregoing, denies that he committed the offence outlined in the European arrest warrant.

• • Further or in the alternative, that the surrender of the respondent would represent an abuse of process and/or constitute a fundamental unfairness in light of the excessive passage of time, the respondent's circumstances, the previous proceedings, the nature of the case and all the attendant circumstances.

• • That there has been an inordinate and unwarranted delay in transmitting the European arrest warrant in seeking surrender and/or in arresting the respondent and he is greatly prejudiced thereby.

Is surrender prohibited by Section 11 of the 2003 Act?

10 . Of relevance to the respondent's points of objection, is the fact that a previous European arrest warrant had issued for this respondent relating to the sentence which is the subject matter of the EAW presently before the Court. Though not specifically referred to in the notice of objection, the respondent has suggested that there were a number of errors in the current European arrest warrant sufficient to prohibit surrender.

11 . The respondent submits that the information in part E of the warrant is the same information that was outlined in the previous EAW, as issued by the same Judge on 13 ^th July, 2009 [2009 No. 304 EXT] and the respondent submits it is deficient in its detail.

12 . Furthermore, the respondent submits that the previous EAW indicated that 3 (three) years, (two) months and 2 (two) days of deprivation of liberty (i.e. a period less than the current EAW) remained to be served.

13 . In addition, the respondent submits that the previous EAW indicated (at section B) that the applicable case reference number was II K 396/05 and not case no. II K 369/05 as is stated in the present manifestation of the same surrender request.

14 . In light of these issues, this Court sought further information from the issuing judicial authority. This was provided by the issuing judicial authority in a letter dated the 17 ^th of January 2022 wherein it was stated:

“1. The correct file number of the case concerning Marcin Minierski is II K 396/05. The files of reference [sic] II K 369/05 do not have any relevance to this sentenced person.

2. When calculating the remaining portion of the sentence to be served by the said sentenced person a calculation error occurred. The correct length of the sentence of imprisonment remained [sic] to be served by Marcin Minierski is 3 years and 4 months. The Court has credited the provisional detention from the 29 ^th of November 2004 to the 27 ^th of July 2005 (7 months and 28 days) and the detention in Irish prison [sic] from the 1 ^st of July 2010 to the 2 ^nd of July 2010 (2 days) against the sentence of 7-year [sic] imprisonment imposed on him.

3. Pursuant to the content of Article 158 paragraphs 1 & 2 of the Criminal Code anybody that takes part in a fight or a battery/beating in which a person is exposed to the immediate risk of loss of life or of a consequence specified in Article 156 § 1 or Article 157 § 2 shall be liable to imprisonment for up to 3 years. If the consequence of a fight or of a beating is a serious damage to human health, the perpetrator is liable to imprisonment for a term from 6 months to 8 years. Beating means an active assault on one or more people by two or more attackers, being, at least, in the form of a violation of bodily integrity. In the judgment dated the 14 ^th of November 2005 the District Law Court of Wałbrzych found that the said sentenced person together with and in co-operation with two other persons had taken part in the beating of Grzegorz Bajorski in this way that they had repeatedly punched him, kicked him on the head and the whole body, as a result of which the victim suffered numerous injuries which caused severe damage to his health (Article 156 paragraph 1 of the Criminal Code). Such circumstances of the perpetrators' behaviour emerged from the testimonies of witnesses and (in part) from the statements/explanations provided by the sentenced persons themselves.”

15 . In relation to the requirement for clarity, this Court has considered the case of the Minister for Justice & Equality v. Herman [2015] IESC 49, wherein the Supreme Court stated at para. 17; -

“[17] At the core of this appeal is the issue of clarity; or the lack of it. It is essential when a court has before it a request in a European arrest warrant that there be clarity as to the offences for which surrender is sought, and as to any proposed sentencing.”

16 . In Minister for Justice and Equality v. AW [2019] IEHC 251, Donnelly J. indicated at para. 48; -

“[48] The respondent has also claimed that his surrender is prohibited because the information does not set out the degree of participation of the respondent in the offences. The information in the EAW has already been set out. This does not list the names of the people he conspired with. The requirement for detail in the EAW is set out in the Framework Decision and in the Act of 2003. The Superior Courts in a number of cases have examined the reasons for the giving of details. These are to permit the High Court to carry out its functions under the Act of 2003 of endorsing the EAW and establishing correspondence and also to permit the respondent to challenge his surrender on grounds such as the rule of speciality (s.22), ne bis in idem and extraterritoriality (See Minister for Justice and Equality v Cahill [2012] IEHC 315 and Minister for Justice Equality and Law Reform v Desjatnikovs [2008] IESC...