Minister for Justice v Wilgorz

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 29 October 2024
• Neutral Citation: [2024] IEHC 644
• Docket Number: Record No. 2023 No. 247 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

Krzysztof Arkadiusz Wilgorz

Respondent

[2024] IEHC 644

Record No. 2023 No. 247 EXT

THE HIGH COURT

European arrest warrant – Surrender – Abuse of process – Applicant seeking the surrender of the respondent to Poland pursuant to a European arrest warrant – Whether surrendering the respondent would amount to an abuse of process

Facts: The applicant, the Minister for Justice, applied to the High Court seeking the surrender of the respondent, Mr Wilgorz, to Poland pursuant to a European arrest warrant, dated 31 October 2023, issued by Judge Myszakowska of the District Court, Wroclaw, for the purposes of serving a custodial sentence originally imposed on him on 28 October 2023. In his notice of objection the respondent, after putting the applicant on full proof, raised the following objections: (a) surrender is prohibited under s. 45 of the European Arrest Warrant Act 2003; (b) owing to the conditions in which he might be detained in Poland, his surrender is prohibited under Article 3 of the ECHR, Article 4 of the Charter and Article 38.1.1 of the Constitution; (c) his surrender may be prohibited on the basis that to send him to Poland would be incompatible with his rights under Article 8 of the ECHR and Article 41 of the Constitution. Following the receipt of various assurances and information set out in responses to s. 20 requests, the respondent did not pursue his objection to surrender on the basis of poor prison conditions contrary to Article 3 of the Convention or his objection on the grounds that there had been a failure to comply with the requirements of s. 45 of the 2003 Act. His sole ground of objection related to delay and given the additional information, abuse of process.

Held by McGrath J that, insofar as the Irish Courts may entertain arguments as to abuse of process in limited circumstances, such are essentially confined to whether the surrender proceedings themselves amount to an abuse of the Irish Courts processes rather than a general question as to whether the conduct of which complaint is made is an abuse of process in the issuing state. McGrath J noted that, as made clear by O’Donnell J in Minister for Justice v JAT (No. 2) [2016] IESC 17, there is a weighty interest in ensuring that the State honours its treaty obligations and, if anything there is an even greater interest in ensuring performance by the State of obligations entailed by membership of the European Union. Noting that the respondent was aggrieved that he was not required to serve the sentence back in 2013 and was called upon to serve the same, McGrath J held that the sentence was lawfully imposed, should be enforced and the State, via the mechanism of the Framework Decision, should assist the Polish authorities in enforcing it. There was in McGrath J’s view no basis for the court finding an abuse of process.

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

Application granted.

JUDGEMENT delivered by Hon. Mr. Justice Patrick McGrath on the 29 October 2024

1 A European arrest warrant [‘EAW’], dated the 31 October 2023, was issued by Dobromira Myszakowska, Judge of the District Court. Wroclaw, Poland, who is a ‘judicial authority’ within the meaning of s.2 of the European Arrest Warrant Act, 2003 [‘the 2003 Act’]. The Respondent is sought for surrender for the purposes of serving a custodial sentence originally imposed on him on the 28 of October 2023 (Case Ref: VI K 380/08).

2 The Respondent was arrested on foot of a Schengen II SIS alert on the 13 of December 2023 and was subsequently admitted to bail pending the outcome of these proceedings.

3 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.

4 I am satisfied none of the issues referred to in ss 21A, 22, 23 or 24 of the 2003 Act arise for consideration and surrender is not precluded for any of the reasons set out therein.

5 This EAW was issued for the purposes of enforcing a sentence of imprisonment of 8 months for an offence of Driving whilst he was disqualified by a previous court order, contrary to Article 244 of the Penal Code. Such an offence corresponds with an offence of Driving Whilst Disqualified contrary to Section 38 of the Road Traffic Act, 1961 (as amended).

6 The sentence of 8 months was imposed in Wroclaw District Court on the 28 of October 2008 but was wholly suspended for probationary period of 3 years – case Ref 380/08.

7 On the 17 September 2009, owing to the commission of a similar type of offence during the period of suspension, the said court in Wroclaw activated the sentence and he was ordered to serve the period of 8 months in total (Case Ref: Ko 263/09)

8 No issue arises in relation to Minimum Gravity. The sentence of seven months and twenty-nine days remains to be served in its entirety and there is therefore compliance with the minimum gravity requirement under Section 38(1)(a)(ii) of the 2003 Act.

Grounds of Objection

9 A notice of objection was filed by the Respondent on the 31 of January 2024 and subsequently filed an affidavit on the 7 of February 2024. In his notice of objection the Respondent, after putting the Minister on full proof, raised the following objections:-

• a) Surrender is prohibited under s.45 of the European Arrest Warrant Act, 2003 [‘the 2003 Act’].

• b) Owing to the conditions in which he might be detained in Poland, his surrender is prohibited under Article 3 of the ECHR, Article 4 of the Charter and Article 38.1. 1 of the Constitution.

• c) His surrender may be prohibited on the basis that to send him to Poland would be incompatible with his rights under Article 8 of the ECHR and Article 41 of the Constitution.

10 In an affidavit filed by the Respondent on the 7 of February 2024, he stated that he had been originally arrested for the offence set out in this EAW in Manchester on the 1 of November 2012. He claimed that he was thereafter surrendered on this EAW to Poland on the 22 January 2013. Upon surrender the time he has spent in custody in the UK was taken into consideration in Poland and thereafter continued to serve this 8 month sentence until released on the 14 of April 2013.

11 A number of s.20 requests were sent to the issuing judicial authority in relation to these proceedings.

12 Firstly, a s.20 request was sent to the IJA on the 8 of February 2024 seeking assurances in relation to prison conditions and furthermore asking for a Part D Table in respect of the offence which triggered the revocation application for the suspended sentence in Case VI K 380/08.

13 A second s.20 request, dated the 15 of February 2024, was forwarded to the IJA...