Minister for Justice and Equality v Gorczyca [2020] IEHC 59 (10 February 2020)

JUDGMENT of Mr. Justice Binchy delivered on the 10th day of February, 2020

1. By this application the applicant seeks an order for the surrender of the respondent to

Poland pursuant to a European Arrest Warrant dated 3rd September, 2019 (“the EAW”).

The EAW was issued by a The Regional Court of Toruń, as issuing judicial authority

2. The EAW was endorsed by the High Court on 8th October, 2019. The respondent was

arrested and brought before the Court on 13th November, 2019. The application first

opened before the Court on 3rd December, 2019, was then adjourned until 13th

December, 2019, and adjourned again until the 20th December, 2019 following upon

directions by this Court, pursuant to s. 20 of the European Arrest Warrant Act 2003 (as

amended) (hereinafter “the Act of 2003”).

3. At the opening of the application, I was satisfied that the person before the Court is the

person in respect of whom the EAW is issued.

4. I was further satisfied that none of the matters referred to in ss. 21 A, 22, 23 and 24 of

the Act of 2003 arise, and that the surrender of the respondent is not prohibited for any

of the reasons set forth in any of those sections.

5. At para. B of the EAW regarding the decision on which the warrant is based it is stated

that an enforceable court ruling suggesting provisional detention does not apply. At para.

B.2 “reference number of case in which the decision was rendered” two case file

references are given. The first is reference number II K 15/14, described as a cumulative

judgment with the force of law of the District Court in Chelmno of 20th March, 2014

cumulating the sentences handed down in three earlier decisions:

1. The District Court of Chelmno of 20th March, 2003 (II K 136/02)

2. The District Court of Świecie of 29th May, 2008 (II K 280/06)

3. The District Court of Grudziądz of 20th January, 2003 (II K 352/02)

6. The second decision is under case file reference number II K 222/04 described as

judgment with the force of law of the District Court in Świecie of 18th April, 2013.

7. At para. C.2 of the EAW the length of custodial sentence or detention order imposed is

outlined. For reference II K 15/14 this is a cumulative penalty of three years’

imprisonment, adjudicated by a cumulative judgment of the District Court in Chelmno of

20th March, 2014 cumulating the following penalties:

1. One year and six months’ imprisonment handed down in case II K 136/02

2. Substitutive penalty of six months’ imprisonment handed down in case II K 280/06

3. Two years’ imprisonment handed down in case II K 352/02

8. The sentence handed down in case reference II K 222/04 is outlined as a cumulative

penalty of one year and four months’ imprisonment, by judgment of the District Court in

Świecie of 18th April, 2013.

9. At para. C.3 the sentence remaining to be served for reference II K 15/14 is one year,

two months and 20 days’ imprisonment. For case reference II K 222/04 the remaining

sentence is one year and 27 days’ imprisonment.

10. In para. D of the EAW it is stated that:

1. The respondent did not appear in person at the trial resulting in the decision in case

file reference number II K 15/14, and nor did he appear in person at the trial

resulting in the decision in case file reference II K 280/06.

2. The respondent did appear in person at the trial resulting in the decisions in all

other cases i.e. cases file reference numbers: II K 136/02, II K 352/02 and II K

11. In relation to those cases at which he did not appear in person further information is

provided in para. D. In the case of file reference number II K 15/14 it is stated that:

“The convict was notified, by post on 24th February 2014, about the date of the

trial, during which the cumulative sentence was adjudicated. He collected the

notification in person. His attorney was present at the trial on 20th March 2014.

The cumulative judgment adjudicated by the District Court in Chelmno in case file

reference number II K 15/14 was issued at the request of the convict. Thus, both

the convict and his attorney were familiar with single sentences with the force of

law, which were covered by the cumulative sentence; these sentences were not

12. In case file reference number II K 280/06, it is stated that:

“The convict did not collect the correspondence, he did not stay at the place of his

residence in Poland, his new place of stay was not known, the police officers

established that, most probably, Sebastian Gorczyca was staying in the territory of

Great Britain. With reference to the above, at the Court’s sitting on 29th May 2008

penal judgment in the form of order was issued towards Sebastian Gorczyca. Then,

the copy thereof was sent to the last known address of the convict in Poland; the

convict did not collect the correspondence. The sentence became valid on 19th July

13. At para. E of the EAW, it is stated that it relates to nine offences. Particulars of the nine

offences are set out at para. E.2 of the EAW. However, notwithstanding that this is so,

the IJA has also indicated the application of Article 2(2) of the Framework Decision by

underlining two categories of offences in para. E.1 of the EAW. These are those relating

to forgery of administrative documents and trafficking therein, and, separately, swindling.

14. As a result, there was uncertainty as to which offences the IJA was relying upon Article

2(2) of the Framework Decision. Accordingly, the central authority here sent a letter

seeking further information in relation to this and other matters, to the central authority

in Poland (in this case The Regional Court of Toruń) on 2nd August, 2019, asking the IJA

to explain why a description of all of the offences for which the surrender of the

respondent is requested is provided at para. E.2 of the EAW, when two offences on the

list at para. E.1 had been selected. In its reply of 3rd September, 2019, the IJA stated

that this was done in error, but the IJA did not clarify to which offences it intended the

Article 2(2) offences of forgery and swindling to apply.

15. The matter first came on for hearing before this Court on 3rd December, 2019, and this

Court directed that further information should be sought from the IJA, pursuant to s. 20

of the Act of 2003, in relation to this and other matters. In its reply of 10th December,

2019, the IJA effectively repeated the reply that it had given to the same inquiry in its

letter of 3rd September, 2019. Accordingly, the Court was none the wiser in relation to

this issue when the matter next came before the Court on 13th December, 2019 and

accordingly this Court directed that yet another inquiry in relation to this matter to clarify

those offences which the IJA intended to refer to in ticking the boxes in respect of forgery

and swindling. This gave rise to a reply, by return, which stated simply that:

“In s. E.2 of the European Arrest Warrant the Court, indicated the detailed

description of all deeds for the commission of which Sebastian Gorczyca was

sentenced and all these deeds are covered by the European Arrest Warrant.”

Of course this did still not answer the question and so on 20th December, 2019, the Court

directed that one last letter should be sent to clarify the issue, and adjourned the matter

for one final occasion to 13th January, 2020. By letter dated 2nd January, 2020, the IJA

“…the offences for the commission of which the person described above was

sentenced, and which are covered by the European Arrest Warrant are as follows:

forgery of administrative documents and trafficking therein; fraud and obtaining of

credit under false pretences, whereas in s. E.1 there in no field to contain the

enumerated offence consisting in obtaining credit under false pretences and that is

why, in s. E.2 the Court included detailed description of each of the offences

committed by Sebastian Gorczyca.”

16. By this letter, the Court understands the IJA to state that because some of the offences

referred to in the EAW did not fit into the categories of offences set out in para. E.1 (i.e.

those referred to Article 2(2) of the Framework Decision), specifically those offences

consisting of obtaining credit under false pretences, it decided to provide a detailed

description of all offences in respect of which the surrender of the respondent is sought in

para. E.2 of the EAW, although in its earlier correspondence it acknowledged that in so

doing it did so in error.

17. It is well established that where there is a lack of clarity in an EAW as to those offences

which an IJA intends to rely upon para. E.1 of the EAW, the Court will consider if the

offences described in the EAW correspond to offences in the law of the state. This is

apparent from the decision of Peart J. in Minister for Justice, Equality & Law Reform v.

Paulauskas [2009] IEHC 32 and the decision of Donnelly J. in the case of Minister for

Justice & Equality v. Ludwin [2018] IEHC 220 in which case, having found that the IJA

had made a manifest error in ticking one of the offences in part E(1) of the EAW, she

went on to say, at para. 13:

“A number of decided cases have dealt with the situation where the issuing judicial

authority has completed part E(1), indicating reliance on Article 2(2) of the 2002

Framework Decision, and part E(II), indicating non-reliance. Following on from the

decision of Peart J. in Minister v. Paulauskas [2009] IEHC 32 the High Court has

accepted that this not a bar to surrender provided that correspondence has been

18. In the descriptions of the offences provided in the EAW by the IJA, it has used the word

“forged” on four different occasions, in relation to four separate offences.

19. At para. E.1 of the EAW it is stated that the warrant relates to nine offences. Even

allowing for differences of procedures in jurisdictions, and the fact that sometimes

separate incidents each of which would amount in itself to an offence are amalgamated so

as to constitute a single offence, it is difficult reading this EAW to understand why it is

stated to relate to nine offences.

20. This is so because particulars of the convictions giving rise to the sentences for which the

surrender of the respondent is sought are provided in para. E of the EAW, and it appears

to me that there are no less than fifteen incidents, each of which constitutes an offence.

The respondent was convicted of these offences over the course of four different court

proceedings, under the file references set out at para. 5 above. While there is some

uncertainty as to those offences upon which the IJA relies upon Article 2(2) of the

Framework Decision, there cannot be the slightest doubt but that in relation to those

offences in which it is expressly alleged that the respondent either forged a document or

made use of a forged document, the IJA intended to rely upon the offence described as

forgery of administrative documents and trafficking therein in the Article 2(2) list of

offences. It would in my view be absurd to conclude that the requesting state could not

rely upon the ticking of that box in relation to those offences.

21. In relation to all other offences however, these must comprise a mixture of offences in

respect of which the IJA intended to rely upon the Article 2(2) offence of swindling, and

others in respect of which it did not intend to rely upon the Article 2(2) list at all. It is no

function of this Court to attempt to distinguish one from the other. Where there is a lack

of clarity about those offences in respect of which an IJA is relying upon the Article 2(2)

list, the executing state cannot place any reliance on the latter and must instead consider

whether or not the acts comprising those offences as set out in the EAW (and, if

applicable, additional information) would, if committed in the State, constitute an offence

in this jurisdiction.

22. So far as these proceedings are concerned, the upshot of the above is as follows. Case

file reference II K 280/06 refers to two offences. The first was committed on 12th July,

2000 and it is stated that in committing this offence, the respondent made use of a forged

employment certificate. In the second offence of 27th September, 2000, it is stated that

the respondent had “previously forged the certificate” (this appears to refer also to an

employment certificate). Accordingly, it is not necessary for the applicant to demonstrate

correspondence in relation to the offences the subject of file reference II K 280/06.

23. Under the heading of file reference II K 352/02, particulars of four offences are provided.

The first of these offences is stated to have occurred in 23rd November, 2001, and it is

stated that the respondent forged the signatures of two persons on the contract of sale of

a vehicle. The applicant is not required to prove correspondence as regards this offence.

24. Under the same file reference, the EAW then describes two offences of car theft, one that

occurred on 27th January, 2002, and another that occurred on 5th February, 2002.

These acts would clearly correspond to offences under s. 4 of the Criminal Justice (Theft

and Fraud) Offences Act 2001 (“the Act of 2001”).

25. The final offence described under case reference II K 352/02 states that the respondent,

acting in concert with others, and in order to gain material benefit, demanded from the

owner of a stolen vehicle a sum of money for the return of the illegally seized vehicle.

Counsel for the applicant submitted that this would constitute an offence under s. 18 of

the Act of 2001, relating to the possession of stolen property. He also suggested that it

may be an offence under s. 17 of the Criminal Justice (Public Order) Act 1994 which

creates the offence of making an unwarranted demand with menaces. Since there is no

indication of menaces in the acts as described, I think it unlikely that the acts as set out

could constitute an offence under the latter section. However, the acts described would, I

believe, constitute an offence under s. 18 of the Act of 2001, and it was not argued to the

26. Under file reference II K 136/02, there is a description of just one offence in which it is

stated that the respondent acted so as to gain material benefit, and in concert with

another, he “had the personnel of the shop dispose disadvantageously of the property at

the amount of 2370.74 PLN, which resulted in conclusion of the credit contract he had no

intention to pay back”. It is reasonable to infer that this means that the respondent

obtained goods from a shop pursuant to some kind of credit agreement which he had no

intention of honouring. Counsel for the applicant submitted that this would constitute an

offence under s. 6 of the Act of 2001. That section provides that “A person who

dishonestly, with the intention of making a gain for himself or herself or another, or of

causing loss to another, by any deception induces another to do or refrain from doing an

act is guilty of an offence”. I agree that on the basis of the brief description of the acts

set out in the EAW, they would constitute that offence if committed in this jurisdiction.

Counsel for the respondent did not submit otherwise.

27. Particulars of eight offences are provided under file reference no. II K 222/04. In three of

these, being offences committed on 29th December, 1999, 4th April, 2000 and

September, 2000 (the precise date is not provided) it is stated that the respondent used

(on each occasion) a forged employment certificate. It is not necessary to prove

correspondence in relation to these offences. As regards the other offences:

28. It is stated that on 10th May, 1999 the respondent “misleading the wronged bank as to

the fact of having resources on the bank account, which in fact he had not, he cashed five

cheques for the total amount of 1,456.48 PLN.” It is submitted that this would constitute

an offence under s. 6 of the Act of 2001. It was not argued otherwise, and I agree.

29. It is stated that on 27th March, 2000 the respondent, acting so as to gain material

benefit, concluded a credit contract for the purchase of goods “as a result of misleading as

to the possibility and intention to fulfil the obligation incurred, by which he caused the

losses at the amount of 555.98 PLN to the detriment of the wronged party”. Again it is

argued that this would be an offence under s. 6 of the Act of 2001, and again it was not

argued otherwise. It is clear that this paragraph states that the respondent mislead

another party when he entered into a credit contract to purchase goods, and caused that

party a loss. Such acts, if committed in this jurisdiction, would in my view amount to an

offence under s. 6 of the Act of 2001.

30. It is stated that on 7th July, 2000, acting in concert with another, he certified an untruth

in a document relating to remuneration gained, which document was used to mislead the

“wronged party” as a result of which the respondent obtained credit in the amount of 800

PLN. This again would correspond to an offence under s. 6 of the Act of 2001.

31. An almost identical offence is stated to have occurred on 16th October, 2000 which would

also constitute an offence under s. 6 of the Act of 2001.

32. Finally, it is stated that in a period between July and August, 2000 the respondent

“implementing the premeditated intent, he aided another person to sell and hide diesel

and heating oil originating from the offence of the value not less than 14,400 PLN.”

Counsel for the applicant submitted that the acts as described indicate that the

respondent was convicted of handling stolen property, contrary to s. 17 of the Act of

2001. Counsel for the respondent on the other hand submitted that the acts do not

indicate any such thing. I agreed with counsel for the respondent that the particulars

provided are inadequate to establish correspondence with any offence in this jurisdiction,

and so I directed that a request for further information should be made for greater details

of the particulars of this offence. This request was made by letter from the central

authority here on 3rd December, 2019, to which a reply was given on 10th December,

2019 in relation to this and other matters. As regards this matter it is stated:

“In July, 2000, Dariusz Peron concluded the contract with Szostka Production and

Commercial Enterprise Limited Liability Company in Swiecie; pursuant to this

contract the payment for the taken fuel was to be paid within 7 days from issuing of

the invoice. In the period from July 2000 to 23rd August 2000 Dariusz Peron

collected in total 11,400 litres of fuel from this enterprise. Sebastian Gorczyca

helped him to sell the oil and he knew oil was obtained by a prohibited act. On

18th April, 2013 at the trial in case file reference number II K 222/04 Sebastian

Gorczyca pleaded guilty to the commission of all deeds charged thereto.”

33. In my opinion, these particulars establish no more than that the respondent assisted

another person to sell oil for which he knew that other person had not yet paid the

supplier. While it is stated that the oil was “obtained by a prohibited act”, it is unclear

precisely what is said to have constituted the prohibited act. The person with whom the

respondent was working acquired the oil pursuant to a contract. He did not pay for the oil

within the period stipulated. It is difficult to see how any of this could constitute an

offence on the part of the respondent, if those acts were carried out in this jurisdiction.

That being the case, the respondent cannot be surrendered in relation to his conviction

for this offence in Poland. It is then necessary to consider the implications of this in

relation to all of the other offences which are mixed together with this offence for the

purposes of the imposition of a cumulative penalty of one year and four months under

case file reference no. II K 222/04.

34. Before doing that however, it is necessary to address another difficulty that arises in the

context of s. 45 of the Act of 2003. From the particulars furnished, it appears to this

Court that there were five different occasions that would fall within the description of a

“trial resulting in the decision” as that term has been interpreted by the Court of Justice

of the European Union in the case of Tupikas (C 270/17 PPU). The respondent was

present in court for three of those occasions. The two occasions on which he was not in

court were for the decisions given under file reference no.s II K 15/14, and II K 280/06.

As regards the first of these, the file reference no. II K 15/14, this is described as being a

“cumulative judgment with force of law of the District Court in Chelmno of 20th March,

2014 cumulating the following sentences”, and it then goes on to refer case file

references no.s II K 136/02, II K 280/06 and II K 352/02. Later in the EAW, it is stated

that this cumulative judgment was issued “at the request of the convict”, the EAW then

goes on to state “thus, both the convict and his attorney were familiar with single

sentences with a force of law, which were covered by the cumulative sentence; these

sentences were not questioned”. As regards the notification for these proceedings under

file reference II K 15/14 it is stated that the respondent was notified by post and it is

further stated that he collected the notification in person, and that his attorney was

present at the trial on 20th March, 2014. That in my view disposes of any difficulty as

regards the non-attendance by the respondent himself at these proceedings, i.e. the

proceedings resulting in the judgment of 20th March, 2014, under reference II K 15/14.

35. However, as regards the proceedings under file reference no. II K 280/06, the sentence

for which formed part of the consideration of the court under file reference no. II K 15/14,

it is stated that the respondent did not collect correspondence notifying him of the trial of

these proceedings which took place 29th May, 2008. This appears to be the date upon

which the respondent was convicted of this offence. It is further stated that a copy of the

judgment was sent to the respondent at his home address, but he did not collect the

correspondence, and that the sentence then handed down became valid on 19th July,

36. From all of the above, the following emerges. The surrender of the respondent is sought

in connection with two court judgments, reference number II K 15/14 and reference

number II K 222/04. The first of these judgments arose from an application made by the

respondent himself to “cumulate” three different sentences previously imposed upon him

in case file reference numbers II K 136/02, II K 352/02 and II K 280/06. The issue of the

guilt/innocence of the respondent in connection with the offences with which he was

charged at these trials underlying case reference number II K 15/14 was not addressed at

that trial, which appears to have been concerned only with the amalgamation of penalties

imposed in the underlying trials. Although it is not stated in this case, in other cases this

“accumulation” or aggregation of sentences frequently results in a reduction in the overall

sentence, but whether or not it did so in this case is not material to the decisions the

37. I am satisfied that the requirements of the Act of 2003 have been met as regards the

judgment resulting from case file reference number II K 15/14, and the underlying trials

(i.e. arising from case file reference numbers II K 136/02, II K 280/06 and II K 352/02)

in all bar one respect, and that is the respondent was not in attendance at the trial at

which his guilt was determined in case file reference number II K 280/06. Nor have any of

the circumstances set out in the table attached to s. 45 of the Act of 2003 (as amended)

been indicated as being of application. This means that the surrender of the respondent in

connection with his conviction for the offences to which case file reference number II K

280/06 is prohibited. This is because while s. 45 of the Act of 2003 is satisfied as regards

the penalty ultimately imposed in respect of this and other matters on 20th March, 2014,

it is not met as regards the hearing at which the guilt of the respondent was determined

in respect of this matter, on 29th May, 2008.

38. This results in a further complication by reason of the fact that his sentence in respect of

those proceedings has become enmeshed with the sentence imposed on him in

connection with the offences, the subject of case file reference numbers II K 136/02 and

II K 352/02. It is clear from the decision of the Supreme Court in Minister for Justice,

Equality and Law Reform v. Ferenca [2008] IESC 52 that, in such circumstances,

surrender is usually prohibited in respect of all offences because it is not possible to

disentangle the penalty imposed in connection with the offence for which surrender is

prohibited, from those in respect of which surrender may be allowed.

39. A similar difficulty arises in connection with one of the incidents giving rise to the

conviction of the respondent in case file reference number II K 222/04. It will be recalled

that I have ruled that one of the incidents concerned is neither covered by the invocation

of Article 2(2) of the Framework Decision, and nor do the facts giving rise to the

conviction for that offence correspond to an offence in this jurisdiction. Since the penalty

for this matter is also a cumulative penalty imposed on the respondent in connection with

seven other incidents, it is not possible to disentangle the matter in respect of which

surrender is prohibited from those in respect of which it is permitted.

40. That said, however, this Court was previously informed in other proceedings where a

similar difficulty arose, that in those proceedings it would be open to the respondent

concerned to make application to have the penalty imposed on him pursuant to the

cumulative judgment reduced proportionately to reflect the fact that he was not being

surrendered for one of the offences to which that cumulative penalty related. On that

basis, in those proceedings, surrender was ordered. This does not appear to have been an

option in the proceedings before the Supreme Court in Ferenca.

41. In case such a mechanism is available in this case, I will make a further request for

information of the IJA, pursuant to s. 20 of the Act of 2003 and I will defer making a

decision on the surrender of the respondent pending receipt of an answer to these

questions which are:

1. If the surrender of the respondent is refused in connection with any one or more of

the offences of which the respondent has been convicted, but in respect of which he

has received a cumulative penalty, is it open to the respondent to make application

to the court to have the cumulative penalty imposed upon him reduced

proportionately to reflect the fact that his surrender has been refused in connection

with a specified offence or offences?

2. If it is open to the respondent to make such an application to court, is he assured

that the relevant sentence or sentences will be reduced proportionately so that the

sentences that he will be required to serve will relate only to those offences for

which he has been surrendered?

3. If such an application to court is available to the respondent, will it be conducted by

way of an oral hearing at which the respondent may be present and represented by

a lawyer of his choosing?

42. If the court can be satisfied that, if surrendered, the respondent is assured that his

sentences will be reduced proportionately to reflect the decision of this Court that he is

not being surrendered in connection with the offences to which I have referred, then I will

direct his surrender in connection with all other offences.

Result: Request for additional information, pursuant to s. 20 of the Act of 2003, was made to the issuing judicial authority.

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