About this case:

• Citation:
  [2019] IEHC 742
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Donald Binchy

Referring to a recent report regarding prison conditions, Mr Justice Donald Binchy said that 3m² of floor space per prisoner did not breach Article 3. However, Mr Justice Binchy did direct the Minister for Justice and Equality to clarify one of the four offences described in the EAW before finalising his ruling.

Background

In February 2019, the High Court endorsed a European Arrest Warrant seeking the surrender of Daniel Sosnowski to Poland. The EAW described four offences for which Mr Sosnowski was sentenced in January 2016. Mr Justice Binchy said that one offence related to what was clearly an assault which would correspond with an assault in this jurisdiction contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997.

Another offence described a burglary and an assault which would both clearly constitute offences in this jurisdiction.

Possession of amphetamine sulphate

A further offence described how Mr Sosnowski was found in possession of 1.61g of amphetamine sulphate – Mr Sosnowski contended that there was no proof that possession of this substance constituted an offence in this jurisdiction. The Minister argued that the offence corresponded to possession of a controlled drug prohibited by section 3 of the Misuse of Drugs Act 1977, and that “amphetamine” is listed under the Schedule of controlled drugs set out in the 1977 Act.

Furthermore, the Schedule provides that “Any salt of a substance or product specified in paragraph 1, 2 or 3 of this Schedule” is a controlled drug, and “Any preparation or product containing any proportion of a substance or product specified in paragraph 1, 2, 3 or 4 of this Schedule” is a controlled drug.

Commenting that it had been unnecessary for the Minister to produce expert evidence regarding this offence, Mr Justice Binchy was satisfied that a sulphate is a “salt of a substance” pursuant to the Schedule. Mr Justice Binchy said that, even if he was wrong about this, it was clearly the case that amphetamine sulphate must be a preparation or product containing a proportion of amphetamine – thus being a controlled substance under the 1977 Act.

Correspondence unclear

Mr Sosnowski challenged correspondence in relation to an offence in February 2011, where he threatened a woman “with committing an offence against her health, which threat caused in the threatened person a justified fear to be fulfilled”. Mr Sosnowski argued that this description did not correspond to any offence in Irish law.

In response to an enquiry from the Minister for clarification as to whether the threat was to cause physical injury to the victim, the issuing authority replied stating that “the threat of the sentenced person had to consist in a physical injury of the body of the wronged person”.

In the High Court, the Minister argued that the acts as described correspond to an assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997. The Minister submitted that, when read as a whole, section 2 “embraces just about every possible form of harm to a person’s health” – therefore the offence as described must correspond to an offence under this section.

Stating that there were “insufficient particulars” given, Mr Justice Binchy said he could not rule on the issue and directed the Minister to enquire as to “precisely” what was allegedly “said by way of threat”.

Sentences

The EAW stated that Mr Sosnowski received an aggregate penalty of six months and six years’ imprisonment. The EAW stated that the remaining sentence to be served was “6 months, 5 months, and 27 days”, which Counsel for Mr Sosnowski took issue with.

Mr Justice Binchy said it was clear that the reference to “6 months” was a typographical error which intended to refer to “6 years”, and that the 5 months and 27 days evidently gave credit for the four days spent in custody.

Mr Justice Binchy also rejected an objection regarding the calculation of the aggregate sentence, which he said did not have to be provided by the issuing authority.

Rejecting objections regarding “rule of law issues in Poland” (which were based on Mr Sosnowski’s assertion that he was not present at his sentencing), Mr Justice Binchy said the Court was obliged to accept what was stated on the EAW – i.e. that Mr Sosnowski was present at his sentencing. Mr Justice Binchy said this was in accordance with the trust and confidence that underpins the EAW framework.

Prison conditions in Poland

Mr Sosnowski claimed that the conditions of imprisonment in Szczecin were inhuman and degrading. In this regard, Mr Szczecin averred, inter alia, that when he previously served time in Szczecin prison there were six to seven people in a cell of 14/15m² – this being less than the minimum requirements for prison space.

Mr Justice Binchy referred to a report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) dated 25 July 2018, which was based on the inspection of five Polish prisons in May 2017.

The CPT’s main criticism related to the official minimum standard of space per prisoner – set in Poland at 3m². The CPT asked the authorities in Poland to raise this minimum to 4m² per prisoner, but they have refused to do so.

In Mursic v Croatia, the European Court of Human Rights confirmed that 3m² of floor space per prisoner in multi-occupancy accommodation was the relevant minimum standard under Article 3 ECHR. The ECtHR stated that anything below 3m² would be “so severe that a strong presumption of a violation of Article 3 arises”.

However, the CPT in their 2018 report confirmed that prisons in Poland were adhering to the minimum requirements. As such, Mr Justice Binchy said Mr Sosnowski’s complaints were not supported by the CPT report – or indeed by any other evidence. In those circumstances, Mr Justice Binchy rejected Mr Sosnowski’s objection based on a risk of inhuman or degrading treatment.