The Minister for Justice and Equality v Witkowski

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony Hunt
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] IEHC 241
• Docket Number: Record No.: 2020/326EXT
• Court: High Court
• Date: 26 March 2021

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACTS 2003 AND 2012

BETWEEN:

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

-AND-

TOMASZ WITKOWSKI

RESPONDENT

[2021] IEHC 241

Tony Hunt

Record No.: 2020/326EXT

THE HIGH COURT

EXTRADITION

European arrest warrant – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to Poland pursuant to a European arrest warrant – Whether the respondent’s trial in absentia was in accordance with the requirements of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Witkowski, to Poland pursuant to a European arrest warrant (the EAW) dated 12 August 2020 issued by Judge Tobala of the Second Penal Division of the District Court of Zamosc. The EAW sought enforcement of a sentence imposed by the Regional Court of Zamosc on 31 August 2018, consisting of a joint penalty of 4 years and 10 months of deprivation of liberty imposed in respect of five offences. 1 year and 11 months and 6 days of this sentence remained to be served. Appearing on behalf of the respondent, Mr Kelly distilled the written objections to surrender lodged down to two grounds. The first related to whether the respondent’s trial in absentia was in accordance with the requirements of the European Arrest Warrant Act 2003. The second related to the requisite correspondence of one of the five offences listed in the EAW with an offence in Irish law. Mr Kelly conceded that the issue of correspondence did not arise in respect of the remaining four “ticked-box” offences listed in the EAW.

Held by Hunt J that the requisite correspondence was established and that there was no bar to surrender by virtue of the provisions of s. 38(1)(a) of the 2003 Act. He was satisfied from the information set out in the warrant as a whole that the respondent had been represented at various stages of the Polish proceedings, including at the trial resulting in the decision sought to be enforced by the EAW. In those circumstances, Hunt J was satisfied that there was no bar to surrender having regard to the provisions of s. 45 of the 2003 Act.

Hunt J held that as neither of the objections to surrender had been made out, and as he was otherwise satisfied that the applicant had demonstrated compliance with the provisions of the 2003 Act required for an order of surrender, and such an order was not otherwise barred by the statute, he would order the surrender of the respondent to Poland pursuant to s. 16(1) of that Act for the purpose of service of the remaining sentence, and subject to any credit due to him for time served in Ireland’s jurisdiction.

Application granted.

JUDGMENT of Mr. Justice Tony Hunt delivered on 26 March 2021

1 The applicant seeks an order for the surrender of the respondent to Poland pursuant to a European arrest warrant (“the EAW”) dated 12 August 2020 issued by Judge Pawel Tobala of the Second Penal Division of the District Court of Zamosc. The warrant seeks enforcement of a sentence imposed by the Regional Court of Zamosc on 31 August 2018, consisting of a joint penalty of 4 years and 10 months of deprivation of liberty imposed in respect of five offences. 1 year and 11 months and 6 days of this sentence remain to be served.

2 The EAW was indorsed by the High Court on 9 November 2020 and the respondent was arrested and brought before the Court on 11 December 2020. I am satisfied that the person now before the Court is the person in respect of whom the EAW was issued. Identity was not put in question by the respondent. Equally, there is no issue as to compliance with the minimum gravity requirements of the 2003 Act.

3 Mr. Mark Byrne (of the Outer Bar) appeared for the applicant and Mr. Kieran Kelly (also of the Outer Bar) appeared on behalf of the respondent. Mr. Kelly helpfully distilled the written objections to surrender lodged down to two grounds. The first relates to whether the respondent's trial in absentia was in accordance with the requirements of the 2003 Act. The second relates to the requisite correspondence of one of the five offences listed in the EAW with an offence in Irish law. Mr. Kelly properly conceded that the issue of correspondence did not arise in respect of the remaining four “ticked-box” offences listed in the EAW.

Correspondence

4 The correspondence issue arises in respect of the offence set out at Point IV of para. E2 of the EAW. The EAW recites that this offence in Polish Law is “ contrary to Article 14 Section 1 of the Penal Code in connection with...