High Court: Final determination on surrender of Polish man declined pending outcome of Celmer case

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Stating that the outcome of questions referred to the Court of Justice of the European Union (CJEU) by the High Court in March 2018 could have an impact on the present case, Ms Justice Donnelly said that it was appropriate to await the decision in Celmer prior to making a final determination in the present case.

Furthermore, Ms Justice Donnelly was not satisfied that the provisions of s. 45 of the European Arrest Warrant Act 2003 had been complied with, and sought further information from the issuing judicial authority.

Background

Piotr Ludwin was convicted of five separate offences in Poland, and his surrender was sought on foot of a European Arrest Warrant (EAW) dated 30th September 2013.

Mr Ludwin’s had been adjourned pending the decision in Minister for Justice v. Lipinski IESC 26 on revocation of suspended sentences and whether the absence of a defendant during the enforcement proceedings prohibited surrender. Ms Justice Donnelly said that this had now been determined following on from the CJEU’s decision in Openbaar Ministerie v. Ardic (Case C-571/17).

While conceding that the the issue regarding his presence at the revocation of his conditional release was finally determined against him, Mr Ludwin submitted that his surrender was still prohibited as there was no compliance with the provisions of s. 45 of the European Arrest Warrant Act 2003, as amended. It was submitted that there was no clarity with respect to the position as regards his appearance at the appeals giving rise to these sentences.

Furthermore, it was also raised that the situation regarding the rule of law in Poland (as considered in Minister for Justice and Equality v Celmer IEHC 119) meant that there was a real risk that Mr Ludwin could be required to serve a greater period of imprisonment than that to which he had been sentenced.

In particular, it was submitted that there could be no guarantee that Article 26 of the Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States 2002/584/JHA of 13 June 2002 would be complied with.

European Arrest Warrant Act 2003

Considering Section 38 of the European Arrest Warrant Act 2003 and the prohibition of surrender, Ms Justice Donnelly said that two of the offences presented “no difficulty”, and that there was correspondence of the rest of the offences in this jurisdiction – incorrect designation was not a bar to surrender. Minimum gravity had been reached and the Court was not required to prohibit surrender on this ground.

Section 45 of the European Arrest Warrant Act 2003 states that a person shall not be surrendered if he/she” did not appear in person at the proceedings resulting in the sentence or detention order” in respect of which the EAW was issued, unless the EAW indicates certain matters required by the Framework Decision.

Ms Justice Donnelly considered the decisions from the CJEU in Openbaar Ministerie v. Tadas Tupikas (Case C-270/17) and Openbaar Ministerie v. S³awomir Andrzej Zdziaszek (Case C-271/17) and the Court of Appeal in Minister for Justice and Equality v. Palonka IECA 69.

Ms Justice Donnelly said it was clear that Mr Ludwin was not present at the cumulative judgment in October 2012, as he had left Poland for Ireland in 2009. As such, Ms Justice Donnelly was not satisfied that the provisions of s. 45 had been complied with “in respect of the cumulative judgment in II K 812/11 comprising the aggregate penalty of 1 year and 4 months and the aggregate penalty of 2 years imprisonment”.

On whether the Court should seek further information pursuant to Section 20 of the European Arrest Warrant Act 2003, Ms Justice Donnelly said that he would exercise his discretion to seek further information from the issuing judicial authority in Poland (Minister for Justice v. Sadiku and Gherine IECA 65 considered)

Article 8 ECHR

Mr Ludwin claimed that his personal and family rights would be interfered with by his surrender, stating that he had established significant roots in Ireland, and that his father and sister lived here also. Mr Ludwin argued that he would not be protected from dangerous gangs in Poland which he said pressured him to leave in 2009, and said that they would have contacts in the prisons in Poland.

Rejecting this point, Ms Justice Donnelly said that the offences for which he was convicted were of a recidivist and violent nature, and therefore there was a high public interest in ensuring surrender. Ms Justice Donnelly said that the delay was of his own making as he left Poland of his own volition.

Celmer and the Rule of Law in Poland

Ms Justice Donnelly said that it was possible that the pending decision of the CJEU in Celmer could be relevant to the wider issue of the impact a finding of a breach of the common value of the rule of law has on surrender procedures in general.

As such, Ms Justice Donnelly said that it was appropriate to await the decision of the CJEU prior to making a final determination on Mr Ludwin’s case.