Minister for Justice & Equality v Klubikowski

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 27 April 2021
• Neutral Citation: [2021] IEHC 292
• Court: High Court
• Docket Number: [2019 No. 041 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Rafal Klubikowski

Respondent

[2021] IEHC 292

[2019 No. 041 EXT.]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 27th day of April, 2021

1 By this application the applicant seeks an order for the surrender of the respondent to the Republic of Poland (“Poland”) pursuant to a European arrest warrant dated 5th September, 2018 (“the EAW”). The EAW was issued by District Judge Joachim Wieliczuk, delegated to the Regional Court in Gorzow Wielkopolski, as the issuing judicial authority. The EAW seeks the surrender of the respondent in order to enforce a sentence of 4 years' imprisonment imposed on 12th September, 2011 of which 3 years, 1 month and 2 days remains to be served.

2 The EAW was endorsed by the High Court on 4th March, 2019 and the respondent was arrested and brought before the High Court on 1st July, 2019.

3 I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. No issue was raised in this respect.

4 I am satisfied surrender of the respondent is not precluded for any of the reasons set forth in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”) and I deal briefly with the objection to surrender based on s. 22 of the Act of 2003 at the end of this judgment.

5 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 4 months' imprisonment.

6 The sentence of 4 years' imprisonment imposed on the respondent is an aggregate sentence in respect of nine drugs-related offences. It is agreed between the parties that, in line with the reasoning of the Supreme Court in Minister for Justice, Equality and Law Reform v. Ferenca [2008] IESC 52, as the aggregate sentence cannot be broken down into specific sentences for each offence, then, unless correspondence can be established for all of the offences, surrender must be refused. Of particular interest in this regard is offence VII in the EAW, which is particularised as follows in the English translation:-

“VII. On January 21, 2011, in Gorzów Wlkp., Lubuskie Province, in the apartment at Maczka 17/5, contrary to the provisions of the Act, the requested grew cannabis, other than fibrous hem; additionally, the requested committed this act within 5 years after having served more than 6 months of a penalty of deprivation of freedom for an intentional offence similar to that for which he was sentenced by the District Court in Stargard Szczecinski, case file No. II K 666/05, for one year and 6 months of imprisonment, which he served from 11 March 2005 to 25 April 2005 and from 10 August 2008 to 27 December 2009.”

In the original Polish version of the EAW, the offence is set out as follows:-

“VII. w dniu 21 stycznia 2011 r. w Gorzowie Wlkp. woj. lubuskiego w mieszkaniu przy ul. Maczka 17/5 wbrew przepisom ustawy uprawial konopie inne niz wlókniste, przy czym czynu tego dokonal w ciagu 5 lat od odbycia kary pozbawienia wolnosci w wymiarze powyzej 6 miesiecy, bedac skazanym za umyslne przestepstwo podobne wyrokiem Sadu Rejonowego w Stargardzie Szczecinskim sygn. akt II K 666/05 na kare roku i 6 miesiecy, która odbywal w okresach od 11 marca 2005 r. do 25 kwietnia 2005 r. i od 10 sierpnia 2008 r. do 27 grudnia 2009 r.”

7 Counsel on behalf of the respondent submitted that this particular offence had been the subject of a previous European arrest warrant and the High Court had determined there was no correspondence between that offence and an offence under the law of the State. He submitted that such finding was binding as between the parties and therefore surrender could not be ordered in respect of same.

8 It is agreed between the parties that by a previous European arrest warrant issued on 27th August, 2014 (“the 2014 warrant”), the surrender of the respondent was sought and refused in respect of an offence particularised in the English translation as follows:-

“III. On January 21, 2011, in Gorzów Wlkp., Lubuskie Voivodeship in the apartment at ul. Maczka 17/5, the sought man grew hemp other than other textile crops, whereas he committed the offence within 5 years from serving custodial sentence of over 6 months, being sentenced for similar intentional offence with the decision of District Court in Stargard Szczecinski, case no. II K.666/05 for the penalty of one year and six months, which he served from March 11, 2005 to April 25, 2005 and from August 10, 2008 to December 27, 2009,

i.e. the offence under Art. 63 sec.1 of the Act on prevention of drug abuse in conjunction with Art. 64 § 1 of the Penal Code.”

In the original Polish version of the 2014 warrant, the offence is set out as follows:-

“III. w dniu 21 stycznia 2011r. w Gorzowie Wlkp. woj. lubuskiego w mieszkaniu przy ul. Maczka 17/5 wbrew przepisom ustawy uprawial konopie inne niz wlókniste, przy czym czynu tego dokonal w ciagu 5 lat od odbycia kary pozbawienia wolnosci w wymíarze powyzej 6 míesíecy, bedac skazanym za umyslne przestepstwo podobne wrokiem Sadu Rejonowego w Stargardzie Szczecinskim sygn. akt II K.666/05 na kare roku i 6 miesiecy, która odbywal w okresach od 11 marca 2005 r. do 25 kwietnia 2005 r. i od 10 sierpnia 2008 r. do 27 grudnia 2009 r.,

tj. o czyn z art. 63 ust 1 Ustawy o przeciwdzialaniu narkomanii w zw. z art. 64 § 1 kk.”

9 If there was any doubt on foot of the English versions as to whether offence III in the 2014 warrant and offence VII in the current EAW relate to precisely the same offence, then such doubt is dispelled by the Polish version which is identical in both documents. In fairness to counsel for the applicant, she did not dispute that offence III in the 2014 warrant and offence VII in the current EAW were, in substance, the same offence. She also accepted that, despite surrender being refused by the High Court in 2015 in respect of that offence, following surrender, the respondent was prosecuted and sentenced in respect of that offence. However, she submitted that there had been no breach of the rule of specialty as set out in article 27 of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), and incorporated into Irish law by s. 22 of the Act of 2003, as the respondent had not yet been deprived of his liberty in respect of same and the current EAW could be treated as a request for permission to do so in accordance with s. 22 of the Act of 2003.

10 Prior to dealing with issues concerning the rule of specialty, a fundamental issue arises as to what is the legal effect of the High Court judgment in 2015, in which Donnelly J. held there was no correspondence between that offence and an offence under the law of the State. It is agreed by the parties that the basis of the decision of Donnelly J. was the reference in offence III in the 2014 warrant to ‘hemp’ as opposed to ‘cannabis’ and that it was not an offence under Irish law to cultivate hemp. Counsel for the respondent submits that an issue estoppel arises in respect of that issue and this Court is bound by same. Counsel for the applicant submits that no issue estoppel arises, that there has been a change of facts and this Court is free to consider the issue of correspondence afresh. She submits that as the Polish wording in the description of the offence in both warrants is identical, there must have been a mistranslation in the 2014 warrant and that knowledge of such mistranslation constitutes a new fact which allows this Court to reconsider the issue.

11 The requirement of correspondence between offences in the EAW and offences under the law of the State, or double criminality as it is sometimes referred to, is set out at s. 38(1) of the Act of 2003:-

“38.–(1) Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in respect of an offence unless—

• (a) the offence corresponds to an offence under the law of the State, and—

  • (i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or

  • (ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment,

  or

• (b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.”

12 The concept of correspondence is set out at s. 5 of the Act of 2003:-

“5.–For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State.”

13 In Minister for Justice v. Dolny [2009] IESC 48, Denham J., as she then was, explained how the Court should approach the issue of correspondence at para. 38 as follows:-

“38. In addressing the issue of correspondence it is necessary to consider...