Minister for Justice v Kluska

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 24 May 2023
• Neutral Citation: [2023] IEHC 301
• Court: High Court
• Docket Number: Record No. 2022/178 EXT

Between

Minister for Justice

Applicant

and

Lukasz Kluska

Respondent

[2023] IEHC 301

Record No. 2022/178 EXT

THE HIGH COURT

European arrest warrant – Surrender – Correspondence – Applicant seeking the surrender of the respondent to Poland – Whether correspondence could be shown in respect of the first offence

Facts: The applicant, the Minister for Justice, applied to the High Court for the surrender of the respondent, Mr Kluska, to Poland pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended. The application for surrender, issued by the Polish authorities, related to a sentence of one year and six months which was imposed by the Local Court in Bydgoszcz, Poland, on 4 December, 2017 (file reference number IV K 1096/16). The sentence was a cumulative sentence imposed in respect of three offences. The respondent raised two issues in opposition to the application for surrender. First, he said correspondence had not been shown in respect of the first offence and, as he was wanted to serve a cumulative sentence, this prohibited surrender: Minister for Justice v Ferenca [2008] IESC 52. Secondly, he said that he was not aware of the date and place of hearing where the decision to impose the sentence (the subject of the warrant) was made. The Polish authorities indicated at point (d) of the warrant that the decision was made in absentia. It was indicated in the warrant that the respondent was not personally summoned but was informed of the date of the hearing planned for 22 November 2017 by notice sent to the address where the respondent was residing. However, there was a significant dispute in the case about the correctness of the addresses used to notify the respondent of the criminal proceedings and the respondent submitted that surrender was prohibited by s. 45 of the 2003 Act.

Held by Stack J that the respondent was serving a sentence of imprisonment and was released for a specified time in order to work outside the prison, but failed to report back to the prison at the required date and time. Stack J held that this corresponds to a failure to return to prison on the expiry of a period of temporary release and would, in Ireland’s jurisdiction, correspond to an offence contrary to s. 6(2) of the Criminal Justice Act 1960. Stack J held that the regime in Poland of release for work outside the prison is, to paraphrase Clarke J at para. 41 of Minister for Justice v Szall [2013] IESC 7, as a matter of substance, sufficiently similar to the Irish regime of temporary release that it can properly be said that it corresponds to the failure to return to prison in Ireland’s jurisdiction after a period of temporary release pursuant to s. 2 of the 1960 Act. Stack J held that s. 38 of the 2003 Act did not prohibit the surrender of the respondent to Poland as correspondence could be shown in respect of all three offences. Stack J was satisfied that the Polish authorities sent notification of the various hearing dates to 55/20 Powstańców Wielkopolskich and that this was the only address given by the respondent as his address for service. Stack J held that the respondent’s failure to update that address in accordance with the legal obligation on him to do so, and of which he had been informed, in circumstances where it was evident that he was aware that he was the subject of criminal proceedings meant that he consciously and unequivocally waived his right to be notified of the hearings and therefore to be present at the hearings; rather than engage with the criminal procedures and update his address, he simply moved to Ireland in February, 2017.

Stack J held that both objections failed and she would make an order pursuant to s. 16 of the 2003 Act for the surrender of the respondent to the Polish authorities.

Application granted.

JUDGMENT of Ms. Justice Stack delivered on 24 May, 2023 .

Introduction

1 . This is an application for surrender pursuant to s. 16 of the European Arrest Warrant Act, 2003, as amended, issued by the Polish authorities, and which relates to a sentence of one year and six months which was imposed by the Local Court in Bydgoszcz, Poland, on 4 December, 2017 (file reference number IV K 1096/16).

2 . The sentence was a cumulative sentence imposed in respect of three offences, and there is no issue about correspondence in respect of the second and third offences. These are obviously recognisable as conduct which would comprise the offences of attempted theft and theft, respectively, in this jurisdiction. As the sentence imposed is one for more than four months, and as it not necessary, in the case of a cumulative sentence, to prove that a sentence of at least four months was imposed in respect of each offence, there is no issue with “minimum gravity”, that is, with the requirements of s. 38 (1)(a)(ii) of the 2003 Act.

3 . There are two issues raised by the respondent in opposition to the application for surrender. First, he says correspondence has not been shown in respect of the first offence and, as he is wanted to serve a cumulative sentence, this prohibits surrender: Minister for Justice v. Ferenca [2008] 4 I.R. 480, [2008] IESC 52.

4 . Secondly, he says that he was not aware of the date and place of hearing where the decision to impose the sentence (the subject of the warrant) was made. The Polish authorities have indicated at point (d) of the Warrant that this decision was made in absentia. It is indicated in the warrant that the respondent was not personally summoned but was informed of the date of the hearing planned for 22 November 2017 by notice sent to the address where the respondent was residing. However, there is a significant dispute in this case about the correctness of the addresses used to notify the respondent of the criminal proceedings and the respondent submits that surrender is prohibited by s. 45 of the 2003 Act.

5 . I will deal with these objections in turn.

Whether section 38 of the 2003 Act prohibits surrender

6 . The first offence to which the warrant relates is described in the following terms:

“In the period from 25 July 2016 to 29 November 2016, in Bydgoszcz, taking advantage of the fact that he had a permit to temporarily leave the Custody Suite in Bydgoszcz starting from 22 July 2016 in order to perform work without supervision, he did not come back, without any justifiable excuse, within 3 days after the deadline at the latest, to the indicated penitentiary unit, which constituted an offence under article 242 section 2 of Penal Code.”

7 . The Minister has been put on proof of correspondence, that is, of compliance with the requirements of s. 38 (1)(b) of the 2003 Act, as amended.

8 . The Minister initially submitted that the first offence corresponded to the offence of escape from lawful custody contrary to common law and to an offence of being unlawfully at large contrary to s. 6 of the Criminal Justice Act, 1960.

9 . Section 6(2) of the 1960 Act provides that it shall be an offence to be unlawfully at large and s. 6(1) of the 1960 Act provides:

“A person who, by reason of having been temporarily released under section 2 or section 3 of this Act, is at large shall be deemed to be unlawfully at large if—

(a) the period for which he was temporarily release has expired, or

(b) a condition to which his release was made subject has been broken.”

10 . Section 2 (1) of the 1960 Act, as substituted by s. 1 of the Criminal Justice (Temporary Release of Prisoners) Act, 2003, with effect from 12 November, 20014 (S.I. 679 of 2004) provides:

“The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person.”

11 . The additional information dated 27 January, 2023, states that, on 22 July 2016, the respondent was serving the sentence of one year and two months' imprisonment imposed under the aggregate sentence of the District Court in Bydgoszcz of 2 July, 2015, file ref. IX K 39/15 (“the 2015 sentence”). I refer to the 2015 sentence in more detail below, in the context of argument made by reference to s. 45 of the 2003 Act. For now, it is sufficient to note that it is conceded that the warrant is in error at this point as the term of that sentence was in fact one year and nine months. The warrant then continues:

“He was granted permission to leave the remand prison temporarily in order to work, while serving the above-mentioned sentence, under a system of work without an escorting officer. [The respondent] was to carry out work at the Complex of Care and Education Institutions in Bydgoszcz…. On 22 July 2016, at about 04.33 p.m.”

12 . The additional information dated 27 January, 2023, goes on to set out the provisions of Polish law which provides for a convict's duty to perform work. It is clear from that that persons detained in semi-open or open prisons may be employed outside the prison without an escorting officer and that this is in fact the norm for inmates in open prisons. It is clear that the respondent was released temporarily for the purpose of working outside the prison and he was not escorted by an officer.

13 . This purpose is different from the purposes of temporary release as set out in s. 2(2) of the 1960 Act, which include: the rehabilitation of prisoners, to help prepare them for life after prison, to allow them to assist in the investigation of crime, and more general purposes connected with the good management of the prison, but this is not really material. The Minister relies on the decision of the Supreme Court ( per Clarke J.) in Minister for Justice v. Szall [2013] I.R. 470, [2013] IESC 7 where it was held (at para. 40):

“Where … the offence specified in the relevant European arrest warrant...