Minister for Justice v Zajac

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Patrick McGrath
• Judgment Date: 23 October 2024
• Neutral Citation: [2024] IEHC 618
• Docket Number: [2023 No. 169 EXT]

In the Matter of An Application Under S. 16 of the European Arrest Warrant Act 2003, As Amended.

Between

Minister for Justice

Applicant

and

Mariusz Zajac

Respondent

[2024] IEHC 618

[2023 No. 169 EXT]

THE HIGH COURT

European arrest warrant – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to the Republic of Poland pursuant to a European arrest warrant – Whether correspondence was established

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr Zajac, to the Republic of Poland pursuant to a European arrest warrant dated 9 July 2022 (the EAW). The EAW was issued by Judge Tusinski of the Regional Court in Czestochowa, as the issuing judicial authority (the IJA). The EAW was a conviction warrant and sought the surrender of the respondent in order to serve a sentence of imprisonment of 3 years, of which 2 years, 4 months and 24 days remained to be served. The respondent objected to surrender on the following grounds: (i) there was a real risk he would be exposed to inhuman and degrading treatment whilst imprisoned in the requesting state and surrender was precluded by reason of s. 37 of the European Arrest Warrant Act 2003; (ii) correspondence was not established, and surrender was precluded by reason of s. 38 of the 2003 Act; (iii) surrender was precluded by reason of undue interference with his family rights under Article 8 of the European Convention on Human Rights; and (iv) surrender was precluded under s. 45 of the 2003 Act.

Held by McGrath J that in the warrant itself, it was said that the respondent ‘jointly and in cooperation with others in an organised criminal group with premediated intent’ committed the offences; if he were charged in Ireland’s jurisdiction with a similar type of offence on a joint enterprise basis, as alleged, then he could be equally liable for the offences which resulted from the carrying out of the joint enterprise. Therefore, McGrath J held that correspondence was made out in relation to those offences. He noted that correspondence for the second offence was with an offence under s. 72 of the Criminal Justice Act 2006. In light of information from the issuing judicial authority, it was clear to him that there had been compliance with the requirements of the Framework Decision and no issue arose under s. 45 such as to operate as a bar to surrender. Having considered assurances received from the issuing judicial authority, McGrath J was satisfied that the respondent had failed to establish a real risk that he would be exposed to inhuman and/or degrading treatment in the prisons of the Requesting State generally or on the two specific grounds which he advanced. McGrath J noted that there had been considerable and largely unexplained delay in the case, and in that period of time the family and personal circumstances of the respondent had significantly altered. However, McGrath J did not consider, as was the case in for example Minister for Justice v Palonka [2022] IESC 6, a s. 16 order for surrender would result in such exceptional and oppressive disruption to family life, that this was one of those rare cases where there existed extreme and exceptional circumstances such that surrender would be disproportionate in the particular circumstances of the case. It was clear to him from all the available information that the decision of the District Court of Czestochowa on 02.12.2006. to suspend the enforcement proceedings against the respondent had the effect of also suspending the statute of limitations and as such the case operated well within the period of limitation.

McGrath J made an order for the respondent’s surrender pursuant to s. 16 of the 2003 Act.

Application granted.

JUDGMENT delivered on 23 day of October 2024 by Hon . Mr Justice Patrick McGrath

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 9 July 2022 (“the EAW”). This EAW was issued by Marek Tusinski, a Judge of the Regional Court in Czestochowa, as the issuing judicial authority.

2 The EAW is a conviction warrant and seeks the surrender of the respondent in order to serve a sentence of imprisonment of three years, of which two years, 4 months and 24 days remain to be served.

3 The issuing State has certified that the offences to which the warrant relates ae contrary to Article 194 paragraph 1 letter e of the Criminal Code, with application of Article 396 paragraph 10 of the Criminal Procedure Code.

4 The respondent was arrested on 5 January 2024 on foot of a Schengen Information System II alert and brought before the High Court on the 6 January 2024. The EAW was produced before the High Court on the 10 January 2024.

5 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.

6 I am satisfied that none of the matters referred to in section 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the 2003 Act”), 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.

7 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.

8 The respondent objects to surrender on the following grounds:-

• (i) There is a real risk he will be exposed to inhuman and degrading treatment whilst imprisoned in the requesting state and surrender is precluded by reason of s. 37 of the 2003 Act.

• (ii) Correspondence is not established, and surrender is precluded by reasons of s.38 of the 2003 Act.

• (iii) His surrender is precluded by reason of undue interference with his family rights under Article 8 of the European Convention on Human Rights [‘ECHR’].

• (iv) Surrender is precluded under s.45 of the 2003 Act.

Correspondence

9 As set out within section (e) of the EAW, tick-box certification was not engaged, and as such, correspondence must be proven. The Respondent objects to his surrender on the basis that there is an absence of correspondence between the offences for which his surrender is sought and offences under Irish Law.

10 Section 5 of the 2003 Act provides:-

‘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’.

11 The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence – Minister for Justice v Dolny [2009] IESC 48.

12 It is submitted by the Applicant that the first offence of assault and extortion corresponds with a range of domestic offences including:-

• • Blackmail, extortion and demanding money with menaces contrary to s17 of the Criminal Justice (Public Order) Act 1994 (as amended).

• • Assault contrary to s2 of the Non-fatal Offences Against the Persons Act 1997.

• • Assault causing harm contrary to s3 of the Non-fatal Offences Against the Persons Act 1997.

• • Threats to kill or cause serious harm contrary to s5 of the Non-fatal Offences Against the Persons Act 1997.

13 Further, it is submitted that the second offence corresponds with s.72 of the Criminal Justice Act 2006 which makes it an offence to “participate in or contribute to” any activity, whether or not that activity is an offence, which intentionally or recklessly enhances the ability of a criminal organisation or any of its members to commit or facilitates the commission of a serious offence.

14 The Respondent does not concede that correspondence is established. He submits that while the first three offences listed within the warrant would involve physical threats or assaults and would constitute offences under domestic law, the warrant is silent in regard to the specific acts committed by the Respondent.

15 It is submitted by the Respondent that for criminal liability to be established as a joint enterprise he is required to have actively participated or encouraged such actions.

16 I do not agree with the submission of the Respondent. In the warrant itself, it is said that the Respondent ‘ jointly and in cooperation with others in an organised criminal group with premediated intent’ committed these offences. If he were charged in this jurisdiction with a similar type of offence on a joint enterprise basis, as here alleged, then he could be equally liable for the offences which resulted from the carrying out of the joint enterprise. Correspondence is therefore made out in relation to these offences.

17 Correspondence for the second offence is with an offence under s.72 of the Criminal Justice Act, 2006. This makes it an offence to ‘participate in or contribute to’ and activity, whether or not that activity is an offence, which intentionally or recklessly enhances the ability of the criminal organisation or any of its members to commit or facilitates the commission on a serious offence, It is clear from the description of the second offence alleged that this criminalises participation in an organised criminal gang for the purpose of committing serious offences and this corresponds with s.72 of the 2006 Act.

Section 45

18 The warrant initially did not include any information on the presence of the Respondent at the trial or any information as to whether he was represented in the course of the various hearings....