Minister for Justice v Maksymillian Przemyslaw Anusiewicz

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 15 November 2024
• Neutral Citation: [2024] IEHC 723
• Docket Number: Record No. 2024 No. 033 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

Maksymillian Przemyslaw Anusiewicz

Respondent

[2024] IEHC 723

Record No. 2024 No. 033 EXT

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking the respondent’s surrender – Whether surrender was prohibited pursuant to s. 45 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice, applied to the High Court seeking the surrender of the respondent, Mr Anusiewicz, on foot of a European arrest warrant (EAW) issued by Judge Krzysztofiak of the Regional Court in Zamosc, Poland dated the 12 July 2016 to serve the balance of a three-year sentence, imposed by Sad Rejonowy District Court on the 10 November 2015. The remaining balance to be served was 2 years, 11 months and 27 days imprisonment. The respondent set out three specific grounds of objection: (a) he ought not be surrendered owing to a failure to comply with the requirements of s. 45 of the European Arrest Warrant Act 2003; (b) his surrender was prohibited as there was a real risk that, if surrendered, he might be detained in inhuman or degrading conditions; and (c) his personal and family circumstances ought to be considered, albeit in the context of applications ancillary to a surrender order.

Held by McGrath J that, having considered the facts in relation to the trial in absentia in the case, he could not be satisfied that the rights of the defence were upheld in the process which led to the conviction and sentence for which the respondent’s arrest was sought. In that regard, McGrath J noted that there was no dispute in relation to the following facts: (a) after arrest the respondent was interrogated by the Public Prosecutor in Zamosc and charged with the relevant offences on 10 October 2011 - prior to release he signed a document by which he acknowledged his obligation to inform the authorities of any change of address and furthermore was made aware therein that any documents served on that address would be deemed to be good service if he had not informed them of any new address; (b) he was not then informed that he could be tried in his absence if he failed to appear at any future hearing; (c) at the time when the respondent was charged with the offences, it seemed he could not in fact be tried in absentia under Polish law; (d) due to a change in Polish law in 2015, it became possible to try persons in absentia and, following the re-activation of the proceedings, a decision was made to try the respondent in his absence; (e) notification of the trial and, following conviction and sentence, of the possibility of appeal was done by service of summonses and other documents on him at his last known address, an address he had given to the Polish authorities in 2011 at a time when he was charged in relation to the matters - in the summons then served advising him of the trial, it was indicated for the first time in the process that he could be tried in absentia; (f) the respondent did not appear at the trial and no lawyer, nominated by either the respondent or the Court, acted on his behalf; (g) the respondent was tried and sentenced in absentia; and (h) the respondent did not have an unqualified right of re-trial or appeal, if surrendered.

McGrath J refused to make an order directing the surrender of the respondent to Poland on the EAW.

Application refused.

JUDGMENT delivered by Mr. Justice Patrick McGrath on the 15 November 2024

1 In this application the Minister seeks the surrender of the Respondent on foot of a European Arrest Warrant issued by Judge Beata Krzysztofiak of the Regional Court in Zamosc, Poland dated the 12 July 2016. Part K of the Warrant confirms that this warrant ‘was changed on 23 January 2024’ but no issues arises therefrom.

2 The surrender of the Respondent is sought to serve the balance of a three-year sentence, imposed by Sad Rejonowy District Court on the 10 November 2015, which sentence became final on the 9 December 2015. The remaining balance to be served is 2 years 11 months and 27 days imprisonment.

3 The warrant was endorsed by this Court on the 7 February 2024. The Respondent was subsequently arrested on the 12 February 2024 and has been remanded on continuing bail pending the outcome of these proceedings.

4 I am satisfied that the Respondent is the person in respect of whom this EAW is issue and no issue is taken in relation to identity in this case.

5 The warrant was issued by a Judge assigned to the Regional Court in Zamosc, a ‘judicial authority’ within the meaning of s.2 of the European Arrest Warrant Act, 2003 [‘the 2003 Act’].

6 I am satisfied that the surrender is not prohibited for any of the reasons set out in in s.21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003 (as amended) [‘ the 2003 Act’]. I am further satisfied that is surrender is not prohibited under Part 3 of the 2003 Act.

7 The warrant is, so far as is practicable, set out in the form of the Annex to the Framework Decision and I am satisfied the information provided therein satisfies the requirements of s11 of the Act.

8 The offence of which the Respondent was convicted and sentenced is described at Part (e) of the Warrant as ‘Article 280 s1 of the Penal Code in conjunction with Article 64 s 1 of the Penal Code – an offence against property – assault and robbery committed in circumstances of recidivism’ Further factual details of the conduct which led to this conviction is set out at Paragraph E2.

9 The offence is not a ‘ticked box’ offence as set out in Article 2.2 of the Framework Decision and it is therefore necessary to consider whether there is correspondence. 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’.

10 The relevant principles for showing correspondence are 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.

11 I am satisfied that the offence set out in the Warrant corresponds with offences under Irish Law being:

• a. Robbery contrary to Section 14 of the said Criminal Justice (Theft and Fraud Offences) Act, 2001; and / or

• b. Theft contrary to Section 4 of the said Act; and / or

12 The Respondent is sought in order to serve a sentence of 2 years 11 months and 27 days and therefore the minimum gravity requirements set out in s.38 of the Act are met.

13 Points of Objection were filed on the Respondents behalf on the 12 April 2024 and the Respondent therein set out three specific grounds of objection:

• a. The Respondent ought not be surrendered owing to a failure to comply with the requirements of s45 of the 2003 Act;

• b. His surrender is prohibited as there is a real risk that, if surrendered, he might be detained in conditions which are inhuman or degrading; and

• c. His personal and family circumstances ought to be considered, albeit in the context of applications ancillary to a surrender order.

Conditions of Detention

14 The Respondent objects to surrender pursuant to s.37 of the 2003 Act, Article 4 and 5 of the Charter of Fundamental Rights and Article 40.3.1 of the Constitution on account of conditions of detention in Poland.

15 The Respondent in this regard refers to a report of the National Mechanism for the Prevention of Torture for Poland, dated the 17 January 2023, which he says detailed alarming deficiencies in the conditions of detention in a particular prison, Barczewo prison, such that he claims a real risk of his being subjected to torture if surrendered. He further states that the said report demonstrates a real risk that he might be detained in a cell of less than 3m2 living space.

16 The Applicant submits that the report referred to by the Respondent fails to reach the threshold of the first step in the so called ‘Aranyosi’ test. The Minister submits that the report referred to by the Respondent relates only to one prison in Poland and does not provide evidence of systemic concerns or difficulties such that would necessistate this court to seek any specific assurances from the requesting state.

17 In Minister for Justice v Rettinger [2010] IESC 45, the Supreme Court accepted that prison conditions in the requesting state could give rise to a refusal to surrender under s.37 of the 2003 Act but stressed that where such an objection is raised:

‘the burden rests upon the [respondent] to adduce evidence capable of proving that there are substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention’

18 A summary of the principles which have emerged from the case law in this regard was provided by Burns J in Minister for Justice v Angel [2020] IEHC 699 where the court said as follows:

‘(a) the cornerstone of the Framework Decision is that member states, save in exceptional circumstances, are required to execute any European arrest warrant on the basis of the principles of mutual recognition and trust;

(b) a refusal to execute a European arrest warrant is intended to be an exception;

(c) one of the exceptions arises when there is a real or substantial risk of inhuman or degrading treatment contrary to Article 3 ECHR or Article 4 of the Charter of Fundamental Rights of the European Union (‘the...