The Minister for Justice v Lukaszewski
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] IEHC 485 |
| Court | High Court |
| Docket Number | [2021 No. 180 EXT] |
In the Matter of an Application Under S. 16 of the European Arrest Warrant Act 2003, as Amended.
[2022] IEHC 485
[2021 No. 180 EXT]
THE HIGH COURT
AN ARD-CHÚIRT
JUDGMENT of Mr Justice David Keane delivered on the 29th July 2022
The Minister for Justice (‘the Minister’) applies under s. 16(2) of the European Arrest Warrant Act 2003, as amended (‘the Act of 2003’), for an order directing the surrender of Rafal Sebastian Lukaszewski to the Republic of Poland, pursuant to a European Arrest Warrant (‘the EAW’) issued by the District Court of Torun, as the issuing judicial authority in that Member State, on 7 May 2021.
The EAW seeks the surrender of Mr Lukaszewski to serve a sentence of imprisonment of 1 year and 10 months imposed upon him on 23 July 2013 for two offences of theft or fraud that are the subject of case file II K 339/13 (‘file 339/13’), and a consecutive sentence of 2 years and 2 months imposed upon him on 6 September 2013 for ten further offences of theft or fraud that are the subject of case file II K 403/13 (‘file 403/13’). The EAW recites that the entire duration of that aggregate four-year sentence remains to be served.
I am satisfied that the offences concerned meet the minimum gravity requirements of s. 38 of the Act of 2003 and that they each correspond to an offence under the law of the State, being either that of making a gain or causing a loss by deception, contrary to s. 6 of the Criminal Justice (Theft and Fraud) Offences Act 2001, or that of using a false instrument, contrary to s. 26 of that Act, as the case may be. Mr Lukaszewski raises no issue on either of those points.
Mr Lukaszewski was arrested on 21 June 2021 on foot of an alert (‘the SIS II alert’) issued under the second generation of the Schengen Information System, established by Council Decision 2007/JHA (‘the Council Decision’), and was brought before the High Court. The EAW was provided to the High Court when Mr Lukaszewski was brought before it again on 25 June 2021. I am satisfied that the person before the court is the person in respect of whom the EAW was issued. Mr Lukaszewski raises no issue in that regard.
In response to a request from the Minister as the Central Authority in the State, the issuing judicial authority provided additional information, by letter dated 2 July 2021, concerning documentation previously served on Mr Lukaszewski in connection with the offences for which his surrender is now sought and concerning sentences previously imposed on Mr Lukaszewski in Poland for other offences.
Points of Objection were filed on Mr Lukaszewski's behalf on 29 July 2021. Mr Lukaszewski's solicitor swore affidavits on 28 July 2021 and 10 January 2022 to ground Mr Lukaszewski's opposition to the application.
By letters dated 29 October, 1 November 2021, and 14 January 2022, the High Court requested the issuing judicial authority to provide it with certain specified additional information. The issuing authority provided additional information in response to those requests by letters dated 8 November 2021 and 19 January 2022.
While Mr Lukaszewski puts the Minister on strict proof of the matters that it is necessary to establish under s. 16(2) of the Act of 2003 and while a wide range of objections to surrender are raised in his points of objection, in both his written and oral submissions Mr Lukaszewski relies on two specific objections.
First, Mr Lukaszewski submits that his surrender must be refused under s. 22(2) of the Act of 2003 because the law of Poland does not provide that a person surrendered to it will not be proceeded against, sentenced or detained for an offence or offences committed prior to surrender that are not covered by the EAW, and he will be proceeded against, sentenced or detained for such an offence if surrendered (‘the rule of specialty objection’).
Second, Mr Lukaszewski submits that his surrender must be refused under s. 37 of the Act of 2003 because it would be incompatible with the State's obligations under the European Convention on Human Rights (‘the ECHR’) in that, in the determination of the criminal charges covered by the EAW, he was deprived of his minimum right under Article 6(3) of the ECHR to legal assistance in his defence (‘the right to legal assistance objection’).
I will deal with each of those arguments in turn.
In advancing the argument that Polish law does not provide for the rule of specialty and that, if returned to Poland, he will be proceeded against, sentenced or detained for an offence or offences not covered by the EAW, Mr Lukaszewski relies upon the assertion that his prosecution and conviction for the offences that are the subject of the EAW occurred in clear breach of the rule.
The relevant sequence of events, as disclosed in the information provided by the issuing judicial authority, was as follows.
The same issuing judicial authority had issued an earlier EAW for Mr Lukaszewski in 2011 for the purpose of prosecuting him for other quite separate offences, the subject of case file Kop 22/10 (‘file 22/10’). That warrant had been transmitted to the United Kingdom as the executing Member State. In February 2013, Mr Lukaszewski was surrendered to Poland where he pleaded guilty to those offences and was sentenced to a term of imprisonment that ended with his release from custody in January 2017. For clarity, I will refer to that earlier EAW as ‘the UK EAW’.
After his surrender to Poland on foot of the UK EAW, Mr Lukaszewski was prosecuted and sentenced for the offences covered by the EAW on foot of which he is now before this court. As already described, a sentence of imprisonment of 1 year and 10 months was imposed upon Mr Lukaszewski on 23 July 2013 for the two offences of theft or fraud that are the subject of file 339/13, and a consecutive sentence of 2 years and 2 months was imposed upon him on 6 September 2013 for the ten further offences of theft or fraud that are the subject of case file 403/13, amounting to an aggregate sentence of four years imprisonment.
While serving the sentence imposed on him for the offences covered by the UK EAW, Mr Lukaszewski was invited to renounce his entitlement to the application of the specialty rule to the execution of the sentences imposed for the offences covered by the present EAW but formally declined to do so on 25 February 2014. Hence, he was released from custody in January 2017 at the expiration of the sentence imposed for the UK EAW offences. On 30 March 2017, Mr Lukaszewski's request to withhold the execution of the sentences imposed in respect of the offences covered by the present EAW was refused. On 3 April 2017, Mr Lukaszewski was summoned to prison to commence serving those sentences. In response, he requested a postponement or stay. On 10 May 2017, that request was refused. Despite that refusal, Mr Lukaszewski failed to comply with the summons and a warrant later issued for his arrest in or about the month of August 2017.
Mr Lukaszewski submits that, on those facts, there has been an accomplished breach of the rule of specialty as it applied to his earlier surrender from the United Kingdom to Poland from which an inference should be drawn that the law of Poland does not provide that a person surrendered to that Member State pursuant to an EAW will not be ‘proceeded against, sentenced or detained for the purpose of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence’ other than the offence or offences on which his surrender may be ordered, and that – notwithstanding the presumption to the contrary required under s. 22(3) of the Act of 2003 — Mr Lukaszewski will be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his personal liberty in respect of another offence if surrendered to Poland, so that his surrender must be refused under s. 22(2) of that Act.
The Minister submits, and I accept, that this argument is misconceived in light of the judgment of the European Court of Justice in Case C-388/08 PPU Criminal proceedings against...
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