High Court dismisses surrender refusal under Art 8 ECHR due to lack of exceptional family disruption.

THE HIGH COURT

[2025] IEHC 370

BETWEEN Record No 2024 018 EXT

MINISTER FOR JUSTICE

APPLICANT

v.

TOMASZ FRANCISZEK KAPLONIAK

RESPONDENT

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 27 June 2025

1. The applicant seeks the surrender of the Respondent to Poland on foot of a European Arrest Warrant [‘EAW’] dated the 26 May 2023. He is sought in order to serve a sentence of two years imprisonment, imposed by the District Court in Kamienna Gora in Poland on the 16 July 2008, which sentence became final and binding on the 24 July 2008.

2. The Warrant was endorsed by this Court on the 29 January 2024. The Respondent was arrested on the 1 July 2024 and subsequently admitted to bail pending the outcome of these proceedings.

3. This is the second EAW that has been received from Poland seeking the surrender of the Respondent to serve this sentence. The first EAW [‘EAW # 1’], dated 21 June 2016, was issued by the same Judicial Authority but was subsequently revoked as it was indicated thereon that the expiry of the statute of limitations for the enforcement of the penalty set out therein, fell on the 24 July 2023. In accordance with Article 15.3 of the Executive Penal Code of Poland, however, the convicted person’s evasion of the imposed penalty suspends the period of the Statute of Limitations for the enforcement of an imposed penalty for a maximum of ten years. The IJA therefore revoked EAW#1 and issued the current EAW, which takes into account the extended period under the Statute of Limitations for the enforcement of the penalty.

4. No issue is taken as to identity, and I am in any event satisfied that the person arrested on foot of the EAW and currently before the Court is the person named in that Warrant.

5. The EAW was issued at the Regional Court, III Criminal Division in Jelenia Gora, Poland and I am satisfied that the warrant was issued by a judicial authority within the meaning of the European Arrest Warrant Act, 2003 [‘the 2003 Act’].

6. I am satisfied that there are sufficient particulars set out in the Warrant such that it complies with s. 11 of the 2003 Act and the requirements of the Framework Decision.

7. I am satisfied that none of the matters referred to in sections 22, 23 and 24 of the 2003 Act, arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

Correspondence

8. The IJA have certified that the offences in respect of which surrender is sought are ‘ticked box offences’, namely amongst the category of offences set out in Article 2.2 of the Framework Decision in respect of which it is not necessary to demonstrate correspondence.

9. The ‘ticked box’ is ‘fraud’ and from consideration of the EAW, including the particulars of the offences as set out in part (e) of the Warrant, there does not appear to be any manifest or apparent error in listing the offences as ‘ticked box offences’

10. The minimum gravity requirement under the 2003 Act is clearly met as the Respondent is sought to serve a sentence of two years’ imprisonment.

Grounds of Objection

11. The Respondent objects to surrender on the following grounds:-

(i) His surrender is prohibited under s. 45 of the 2003 Act; and

(ii) Surrender may be prohibited under s. 37 of the 2003 Act as to return him to Poland on foot of this Warrant would be a disproportionate interference with his personal and family rights under the Constitution and / or Article 8 of the European Convention on Human Rights.

12. In an affidavit filed in these proceedings, the Respondent inter alia states:-

(a) He has lived and worked openly in Ireland since 2009 and was shocked at being arrested on foot of this EAW as he was sure he had no pending criminal matters in Poland;

(b) His adult daughter has lived in this jurisdiction since 2007 and he currently lives with his sister in Finglas, Dublin;

(c) He has not come to adverse Garda attention in Ireland and worked for 14 years with UPS delivery service until 2024 and now works in Nippon Express;

(d) He was questioned by the police in Poland in relation to the 2006 offences [‘the central offences’] and accepted his culpability for the same. When those matters came to Court in 2008, he pleaded guilty as indicated in the Warrant;

(e) He was not aware of any upcoming trial in relation to the offence in 2009 [‘the triggering offence’]. He did not know about those charges and did not speak with any lawyer in relation to the same. He has not been in Poland since 2009 and did not evade justice in relation to the 2009 matter as he did not know about any criminal process in relation thereto;

(f) He has applied to the Polish Court in Jelena Gora and instructed a lawyer in Poland to seek to have any sentence served in Ireland and / or to seek to make an outstanding financial payment in lieu of the said sentence.

13. The background to the imposition of the sentence for which surrender is now sought is somewhat complicated and are summarised hereafter:

a. On the 16 July 2008, the Respondent was sentenced to a term of two years imprisonment, suspended for a term of 5 years [Polish Case file reference II K 68/08]. This decision became final and binding on the 24 July 2008. No issue of alleged noncompliance with s. 45 of the 2003 Act arises in relation to these proceedings;

b. On the 27 January 2010 a wholly suspended sentence of 10 months imprisonment was imposed for offences committed by the Respondent on the 2 April 2009 [Polish Case file reference 957/09]. It is in relation to these proceedings that the Respondent has raised the issue of alleged non-compliance with s. 45 of the 2003 Act;

c. On the 21 September 2010, the Polish Court revoked the suspension of the suspended sentence imposed on the 16 July 2008 in Case Ref 68/08. This was done as; by committing the offence at b. above [Polish Case Ref 957/09] ‘the triggering offence’, the Respondent had breached the terms upon which his sentence had originally been suspended and this triggered the activation of that sentence.

14. The Respondent was not present at the ‘trial resulting in the decision’ in respect of the triggering offence. The Respondent says that there has been a failure on the part of the Polish authorities to demonstrate compliance with the requirements of s. 45 in respect of this triggering offence and his defence rights were not upheld in those criminal proceedings. He claims on the authority of Case No. II K 492/11: LU & PH CJEU C- 514/21 & C-515 that, given that it was this offence which triggered the activation of the suspended sentence in the first proceedings, he cannot therefore be surrendered on foot of this EAW.

Section 20 Requests

15. Three requests for additional information have been sent to the IJA pursuant to s. 20 of the 2003 Act.

16. The first request was issued by this court on the 14 October 2024. The first question concerned the enforcement of the suspended sentence of 2 years imprisonment imposed in respect of the 2006 offences [Case Ref No II K 68/08]. A Part D table was sought in relation to the ‘trial resulting in the decision’ for the triggering offence [Case Ref II K 957/07].

17. On the 15 October 2024 the IJA enclosed a Table D in respect of case II K 957/09. It was indicated therein that the Respondent ‘did not appear in person at the court hearing in the course of which the judgment was passed’ in that case. The IJA however went on to say at Part (d)4 of Table D:-

‘At a court sitting on the 27th January 2020, the Court granted a motion for a judgment of conviction without proceeding to trial. The defendant, Thomas Kaploniak, was not present at the sitting despite being duly notified of the date by means of a double advice letter………….. On the 29th January 2010, a copy of the verdict was sent to the residential address indicated by Thomas Kaploniak, with instructions on how and when to file an appeal thereto.’

18. A second s. 20 request for additional information was sent on the 12 November 2024, raising the following matters:-

‘i The High Court notes that in the Table (d) that has been provided, certain information has been provided under (d) 4, however no box under 3.1b, 3.2 or

3.3 has been ticked, as is required. Could this be clarified please?

ii There is reference to a ‘double advice letter’ in Table (d) – can it be clarified what this term precisely means and in what circumstances was this double advice letter sent?

iii Can it be confirmed how Mr Kaploniak was made aware that the matter in ref. II 957/09 could proceed in his absence?

iv Can it be clarified whether any paperwork was given to or made available to Mr Kaploniak when he was at the police station in relation to the matter in ref. II K 957/09?

v The question numbered (ii) in our last communication with you dated 14th October 2024 appears not to have been answered. We again ask you to kindly provide any available explanation for the passage of time between the sentencing orders made in 2010 and the issuing of the European arrest warrant on 26th May 2023 taking into account that Mr Kaploniak renewed his Polish passport at the Polish Embassy in Dublin in October 2018’

19. In the Reply of the 15 November 2024 the IJA indicated:-

(i) The other boxes at 3.1b, 3.2 or 3.3 were not marked as the explanations were set out in box 3.4;

(ii) With regard to questions (ii) and (iii) the following was stated:-

‘the double advice letter indicated under point d(4) means that two attempts were made to serve on the sought person notice of the date of the hearing on the examination of the Prosecutor’s motion to impose on Tomasz Kaploniak – at the hearing at which the presence of the parties was not obligatory – the penalty agreed by him with the Prosecutor on 12th May 2009 and to pass judgment without taking evidence. The penalty agreed with the sought person is imposed on him and a copy of the judgement was sent to him at the address he indicated. The sought person did not receive the delivered document which was then returned to the Court and attached to the case file. It was up to the wanted person to take an interest in his own case. Since he had fully admitted to having committed the alleged act, and had agreed to the penalty, he thus wished to have imposed on him.

He was fully aware that there would be no trial in the case since he had agreed that the case would be proceeded without taking evidence and thus at a court hearing without the participation of the parties. Had he wished to appear, he would have been able to do so by receiving the date of the court sitting. The mere form of the notice not of the summons, constitutes evidence that attendance at the court hearing is only a right, not an obligation. The sought person did not take care of his own affairs, he did not even show the slightest interest…..’

(iii) In reply to Question (iv) the IJA stated that in this case (Ref No II 957/09), the Respondent on the 3 November had signed ‘with his own hand, a form with instruction on his rights and obligations (delivered to him on the same day), in which he was instructed about the obligation to respond to correspondence address to him, as he was obliged to appear following each summons in the course of criminal proceedings’

(iv) In answer to Question (v) it was again indicated that the relevant courts did not have prior knowledge that he had renewed his passport in the Polish Embassy in Dublin in 2018.

20. A third s. 20 Request, dated the 7 March 2025, was issued and the following information sought from the IJA:-

‘i. What precisely was agreed with the Prosecutor on the 12th May 2009 in relation to the disposal of the matter in case ref. II K 957/09?

ii. Please clarify whether the requested person, Tomasz Kaploniak, was informed by the Prosecutor that he was obliged to attend the hearing on 27 th January 2010 in respect of case ref. 957/09 iii. Please clarify whether the requested person, Tomasz Kaploniak, was personally informed by the Prosecutor that the trial resulting in the decision could proceed in his absence on 27th January 2010 in respect of case refe. II K 957/09?

iv. Please clarify whether the requested person was personally and / or officially informed by any other person of the possibility that the trial resulting in the decision could proceed in his absence on 27th January 2010, in respect of case ref. II K 957/09?’

21. A reply was received on the 12 March 2025 which attached a copy of the ‘application submitted by Tomasz Kaploniak on 12th May 2009’ which contained the agreement made between the Respondent and the Prosecutor in Case II K 957/09 and which was signed by Mr Kaploniak. This attachment is headed as an ‘Application’ to the Court by the Respondent and reads as follows:-

‘I have been informed of the possibility of applying Article 353.1 of the Code of Criminal Procedure and Article 387.1 of the Penal Code to my case, i.e. the issuance of a conviction and submission to punishment without conducting evidentiary proceedings. I would like to take advantage of the possibility of applying Article 335.1 of the Code of Criminal Procedure to my case, and I voluntarily consent to the issuance of a conviction without conducting evidentiary proceedings.

In case ref. 1 Ds. 225/09, in which I am a suspect of an offense under Article

273 of the Penal Code, I submit to the penalty proposed by the District Prosecutor’s Office in Kamienna Gora, namely:

- 10 (ten) months of imprisonment, with the enforcement of the penalty conditionally suspended for a probation period of 2 (two) years.

- Simultaneously, I accept the adjudication of procedural costs and fees in this case’

22. The reply from the IJA then continued: -

‘Since he agreed to the proposed penalty, his presence at the hearing was not mandatory, and therefore, the Prosecutor had no reason to require his attendance. The convicted offender consented to the issuance of a conviction without a trial, thereby accepting that the case would be heard in a session, including without the participation of the parties. If he had wished to attend, he had the opportunity to do so upon receiving notification of the hearing date’.

23. The Respondent has not filed any affidavit in response to the information received in answer to the three s. 20 requests described above. The Respondent has not therefore inter alia:-

a. Denied that he signed the application form in which he indicated that wished to apply for the procedure under Polish law which allowed the entry of a conviction and imposition of an agreed sentence without ‘evidentiary proceedings’ b. Denied that he signed a document confirming that he had been advised of his rights and obligations on the 3 November 2009 in respect of the triggering offence [to II K 957/09]; or c. Averred that he was in any way disadvantaged by the procedures adopted at his request, albeit in his absence, and which resulted in the conviction and sentence to which he had submitted being imposed. Relevant Case Law

24. The question of alleged noncompliance with s. 45 of the 2003 Act, solely arises in relation to the so called ‘triggering offence’, namely the 2009 offence which was dealt with in the Polish Court as Case II K 957/09. The Respondent was not present at the ‘trial resulting in the decision’ for that offence, which was the decision of the Court of in 2010 to convict him of that offence and to impose a suspended sentence of 2 years imprisonment.

25. This is not a case where the Applicant can show compliance with any of the boxes set out at Paragraph D in section 45 of the 2003 Act, in respect of the 2009 triggering offence. That is however not the end of the matter as this court should then consider all the facts and circumstances concerning the criminal process in that case, in order to and consider whether the defence rights of Mr Kaploniak were respected and upheld in the proceedings that led to his conviction and sentence in respect of the said offence.

Case Law

26. In Minister for Justice v Zarnescu [2020] IESC 59 the Supreme Court reviewed the jurisprudence of the European Court of Justice in relation to Article 4a of the Framework Decision and set out a number of principles labelled (a) to (r) as follows:-

(a) The return of a person tried in absentia is permitted;

(b) Article 4(6) of the Framework Decision permits the refusal to return where the requested state has a legitimate reason to refuse the EAW;

(c) A person tried in absentia will not be returned if that person's rights of defence were breached;

(d) Section 45 of the Act, which is designed to give effect to Article 4(6) in Irish law, expressly identifies circumstances in which a person tried in absentia may be returned, primarily where there is evidence of service or where the person was legally represented or where it is shown that a right of retrial in the requesting state is available as of right; (e) The examples outlined in section 45 as forming the basis of the analysis are not exhaustive, and the requested authority may look to the circumstances giving rise to the non-attendance of the accused person at the hearing;

(e) The requested state has a margin of discretion in how it approaches the facts, and whether to refuse return;

(f) In so doing the requested authority must be satisfied that it has been established unequivocally that the accused person was aware of the date and place of trial and of the consequences of not attending;

(g) Actual proof of service is not always required, and an assessment may be made from extrinsic evidence that the requested person was aware but nonetheless chose not to attend;

(h) Proof of service on a family member is not sufficient extrinsic evidence of that knowledge;

(i) The assessment is made on the individual facts but there must be actual knowledge by the requested person;

(j) Whether actual knowledge existed is a matter of fact and can be shown from extrinsic evidence;

(k) The purpose of the exercise is to ascertain whether the requested person who did not attend at trial has waived his or her right of defence;

(l) A waiver may be express or implicit from the circumstances, but an implication that a requested person has waived his or her rights to be present at trial is not to be lightly made and will not be made if it has not been unequivocally established that the person was aware of the date and place of trial;

(m) The degree of diligence exercised by a requested person in receiving notification of the date and place of trial may be a factor in the assessment of his or her knowledge of the date of trial;

(n) In a suitable case a manifest absence of diligence may lead a requested authority to the view that the accused person made an informed decision not to be present at trial, or where it can be shown that there was an informed choice made by the person to avoid service;

(o) The mere absence of enquiry as to the date or place of hearing in itself may not be sufficient, as it must be unequivocally shown that the requested person made an informed decision and, so informed, either expressly or by conduct waived a right to be present;

(p) It may in a suitable case be appropriate to weigh the degree of responsibility of the requesting state to notify an accused person of the date of trial against the accused's responsibility for the receipt of his or her mail;

(q) The enquiry has as its aim the assessment of whether rights of defence have been breached. It is not therefore a wide ranging or free-standing enquiry into the behaviour or lack of diligence of the requested person, and the purpose is to ascertain if rights of defence were adequately protected.

27. At paragraph 63 of her Judgment in Zaranescu Baker J said: “In the light of the

decision of the Court of Justice in Dworzecki and the language of the Frameworks Decisions, the requested court may examine the behaviour of a requested person with a view to ascertaining whether it has been unequivocally established that he or she was aware of a trial date and the consequence of nonattendance, with a view to ascertaining if an informed choice was made not to attend. This in practical terms means ascertaining whether the person has knowingly waived his or her rights to be present at trial.”

28. The Court of Appeal in Minister for Justice v Szamota [2023] IECA 143 considered Zarnescu in light of subsequent judgments of the CJEU. The Court there said that a relatively broad approach could approach could be taken to waiver, subject to the rights of the defence.

29. Speaking for the Court, Collins J stated (at paragraphs 28 & 29):

“It is also relevant in this context that in LU & PH itself the CJEU was clear that the executing judicial authority may take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of the defence and thus surrender that person to the issuing Member State, including ( inter alia) ‘ the conduct of the person concerned, in particular the fact that he or she sought to avoid service of the information addressed to him or her or to avoid any contact with his or her lawyers’). That language, which picks up on statements made in TR, suggests that, for the purposes of Article 4a of the Framework Decision, the right to be present at one's trial may, in certain circumstances, be effectively waived even where the person concerned was not aware of the date and place of his or her trial (because they had taken steps which prevented notice of their trial being served upon them). It may therefore be the case that the concept of waiver in this context must be understood more broadly than the Supreme Court's decision in Minister for Justice and Equality v Zarnescu [2020] IESC

59 would appear to suggest. As Baker J made clear (at para 65), return may still be ordered even where the case does not fit within any of the exceptions to non-surrender set out in section 45 ‘ but only if the court is satisfied having made an appropriate inquiry that the rights of defence of the requested person have been met.’ However, the court went on to read the ECtHR jurisprudence as requiring, as a condition of an effective waiver, that it be established unequivocally that the accused person ‘ was aware of the date and place of trial and of the consequences of not attending’ (see para 90(g) as well as 90(m)).

With respect, that may put the matter too far. The Strasbourg jurisprudence certainly appears to identify knowledge of the criminal proceedings as a prerequisite to an effective waiver but it does not appear to make knowledge of the date and place of trial a necessary condition for waiver in all circumstances:

see the authorities referred to in IR, §53, as well as ECtHR 13 September 2018, MTB v Turkey (Application no. 47081/06), §47 and following and the authorities referred to there. Zarnescu was, of course, decided before the CJEU's decisions in TR, IR and LU & PH, all of which appear to espouse a relatively broad approach to the issue of waiver, subject always to respect for the rights of defence.”

30. In Minister for Justice v Szlachcikowski [2024] IECA 2024 the Court considered Zarnescu, and Szamota and the decision of the UK Supreme Court in Bertino v Public Prosecutor’s Office Italy [2024] UKSC 9. The Court concluded that for a waiver to be unequivocal and effective, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. The Court begins its analysis by observing that while an accused has a right to attend their trial – “it is a right not an obligation”

(par. 50). The following passage was quoted with approval from Bertino: “Cases are fact specific. It leaves open the possibility of a finding of unequivocal waiver if the facts are strong enough without, for example, the accused having been explicitly being told that the trial could proceed in absence.”

31. The Court accepted that the jurisprudence of the European Court of Human Rights had been correctly interpreted by the UK Supreme Court and stated: “… for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another. I readily accept that it will not be necessary in every case for evidence to be adduced that the requested person was expressly advised of the potential consequences of not turning up for his trial.

Awareness of consequences could be established in other ways.” (Par 72)

32. Having concluded that on the facts of that case there was no evidence of the respondent having reasonably foreseen the consequences of non-attendance, the Court added: “I reiterate that I see no reason why in another case a court should not be able, from cumulative information provided and evidence as to attendant circumstances, to infer the necessary awareness.” (Par 74).

33. There is no direct evidence that the Respondent waived his right to be present at his trial in relation to the triggering offence. The question in this case is, therefore, whether there is evidence from which this court can infer that he waived his right to attend at the said trial.

34. It is clear from the case law that a lack of diligence on the part of an accused person to make him or herself aware of the date of trial, is not of itself sufficient in order to constitute a waiver of the right to attend. The onus rests on the Applicant to show that, in all the facts and circumstances, it can be inferred that he or she chose to absent him or herself from the trial.

35. At paragraphs 28 and 29 of his Judgment in Szamota (as set out above), however, Collins J referred to the requirement, in light of the Judgments of the CJEU as cited by him therein, to take a relatively broad approach to the concept of waiver in this regard.

Whilst it is therefore necessary to establish that the requested person had knowledge of the criminal proceedings for the purposes of an effective waiver of the right to be present at trial, it is not always necessary to show that he or she was aware of the actual date and place of the trial.

36. Furthermore, as stated at paragraphs 74 & 75 in Bertino, whilst generally it will be possible to prove that the person was aware of the consequences by adducing evidence that he or she was so warned in advance of the hearing, such knowledge or awareness may be established in other ways. And whilst there may not be direct evidence of awareness, a court may be able to infer such awareness from attendant circumstances and the cumulative information available.

37. Although it is not the position, as indicated by Baker J in Zaranescu, that the onus rests on the accused person to demonstrate that he or she was not seeking to evade justice, the court is nonetheless entitled to consider all the facts and circumstances, including the conduct of the requested person, in assessing whether there is evidence from which an unequivocal waiver can be inferred.

38. In his affidavit filed in these proceedings, the Respondent denies any knowledge of the criminal process for the triggering offence and says that he did not expect that any charge or trial could or would proceed against him in respect thereof. As set out above, following information received in reply to a number of s. 20 requests, there is now evidence that he was questioned in relation to the triggering offence on the 2 April 2009 and signed a document on that date which informed him of his obligations in relation to that ongoing criminal investigation.

39. In addition, the Polish IJA have provided a document headed ‘Application’, signed by the Respondent in May 2009, where he asks for the case to be dealt with without ‘evidentiary proceedings’ and in which he submits to the penalty proposed by the Prosecution and asks the court to approve of the same.

40. Although both of those documents are clearly of relevance to his knowledge of this case and would appear to cast doubt on his assertion that he had no knowledge that there was a criminal process in relation to the 2009 triggering offence, the Respondent has now challenged the veracity of the information provided by the Polish authorities in this regard. He has not, for example, stated that he did not sign either document.

41. Applying the principles of mutual trust and confidence, this Court should accept as reliable the information provided by the IJA unless some there is some good reason to the contrary. In this case the evidence offered by the Respondent, which is manifestly deficient and fails to even address information provided by the IJA in response to matters raised in objection to his surrender, does not give rise to any such good reason.

42. I am therefore satisfied that the following facts are established in relation to the criminal process that led to his conviction and sentence in respect of the triggering offences [Case Ref 957/09]:-

(i) On the 2 April 2009 the Respondent allegedly committed a fraud type offence contrary to Article 273.1 of the Criminal Code of Poland;

(ii) On the 3 April the Respondent signed a document which instructed him of his rights and obligations in respect of this case. He was told of his obligation to respond to correspondence addressed to him and to appear following each summons issued in the course of the criminal proceedings. He was expressly informed that a letter sent to the address he had provided would be deemed served even if not received by him;

(iii) On the 12 May 2009, the Respondent submitted a signed Application to the court consenting to his conviction for this offence without ‘evidentiary proceedings’. He further stated therein that he submitted to the penalty proposed by the Prosecutor, namely a sentence of imprisonment of 10 months, suspended on probation for a period of two years;

(iv) A number of letters were sent to the Respondent at the address provided seeking to inform him of the date of the hearing by the Court of the Prosecutors motion to impose on the Respondent the agreed penalty and to deal with the case without taking evidence;

(v) On the 27 January 2010 the court granted a motion for judgment without trial and imposed the sentence to which the Respondent had submitted in his Application. The Respondent was not present at this hearing;

(vi) A copy of the Judgment of the Court was served on the Respondent at the address provided.

43. It is clear from case law that, pursuant to Article 8 of the ECHR, an accused has a right, but not an obligation, to attend at his or her trial. It is clear in the present case that the accused was aware that there was an ongoing criminal investigation in April 2009 and was aware of his obligations in relation to this process. It is furthermore the case that he was aware that the Prosecution were prosecuting him in respect of the triggering offence as he had agreed with the Prosecutor to seek to have the Court deal with the matter in a particular manner and without the necessity of hearing evidence. The Court acceded to his application at his trial, a trial at which he was not present despite several attempts by the prosecution to advise him of the date at the address he had provided.

44. Having considered all the circumstances and the cumulative information available, I am satisfied that this is a case where the Respondent made a knowing choice not to attend at his trial. It is a case where, on the evidence, it can be properly inferred that he waived his right to be present at his trial in full knowledge of the consequences of such non-attendance.

45. This ground of objection is therefore dismissed.

Article 8 Family and Personal Rights

46. The legal principles to be applied in assessing an objection to surrender on the basis of an alleged infringement of Article 8 family and personal rights, have been set out in cases such as Minister for Justice v Ostrowski [2013] 4 IR 206, Minister for Justice v Vesteratas [2020] IESC 12, Minister for Justice v D.E. [2021] IECA 188 and Minister for Justice v Palonka [2022] IESC 6. There is in reality no dispute between the parties as to the principles but rather to the application of the same to the particular facts and circumstances of this case.

47. It is well settled law that delay cannot operate as a standalone ground for the refusal of surrender on foot of an otherwise lawfully issued EAW. Where a complaint of delay is, as here, married to an objection under Article 8 of the Convention, it is the law that evidence of truly exceptional circumstances must exist before the surrender of a person could amount to a breach of the right to respect for private life. As was made clear by the Supreme Court in Minister for Justice v Palonka [2022] IESC 6, delay in itself cannot justify a refusal of surrender as delay does not create rights. It may however be the case that, owing to delay, circumstances have emerged that demonstrate a real, exceptional and oppressive disruption of family life in the most extreme and exceptional circumstances. As observed by Charleton J at paragraph 31 of his Judgment in Palonka delay ‘may enable the growth of circumstances where a new situation has emerged that engages Article 8 of the European Convention in a genuinely exceptional way as set out in the individual procedural circumstances of the case’.

48. From the above cited case law, the following are the principles of particular significance to the objection made pursuant to Article 8 of the Convention on the facts in this case:-

(i) There is a strong public interest in the surrender of persons accused or convicted of criminal offences to countries with which this State has extradition or surrender agreements;

(ii) Delay in itself cannot ever operate as a bar to surrender. A person can have no legitimate expectation that he or she will avoid surrender under extradition or surrender arrangements because of the passage of time arising from a lack of resources or inefficiency on the part of the requesting state;

(iii) Disruption, indeed, significant disruption, of family and private life is the norm where surrender is ordered and this cannot ordinarily justify a refusal to surrender on foot of an otherwise lawful request;

(iv) Where the evidence shows a real, exceptional and oppressive disruption to family life in the most extreme and exceptional circumstances, delay may enable the growth of circumstances where a new situation has emerged that engages Article 8 of the European Convention; and

(v) The ultimate question in a case such as this is whether this is one of those truly exceptional cases (though of course exceptionality is not the test) where, due to the emergence of particular family or personal circumstances in the time since the alleged offences, Article 8 of the Convention is engaged, and it would be disproportionate to order surrender in the particular circumstances of this case.

49. There has been a lengthy delay in this case from the time when the offences were committed until the time when this EAW was issued. The sentence for which his surrender is now sought relates to offences in 2006, which were dealt with initially by the Court in Poland in 2008 by a suspended sentence. Following his conviction and sentence for the triggering offence in 2009, the suspended sentence for the 2006 offences was then activated in 2010. A first EAW issued. A previous EAW issued in 2016 but was withdrawn in 2023 due to issues surrounding the Statute of Limitations.

The current EAW was thereafter issued, and the Respondent was arrested thereon in July 2024.

50. As noted above delay is not a standalone ground which in and of itself could justify a refusal to order surrender to another EU state. Here the Respondent argues that, owing to the passage of time and the change in his family circumstances in the intervening years, his surrender to serve this sentence would now constitute a disproportionate interference with his family and personal rights under Article 8 of the ECHR and that this is one of those exceptional cases where the Court should refuse surrender under Section 37 of the 2003 Act.

51. Whilst the Respondent complains about the lengthy and largely unaccounted for period of delay in this case, he has not in his affidavit set out anything in relation to his family and personal circumstances which could be regarded as exceptional. Whilst the Respondent has family ties with this jurisdiction, mainly it seems through his adult daughter and his sister, there is no family member in Ireland who is in any way dependent upon him. The disruption to his and his family’s life is no more than that to be usually expected where someone is surrendered on foot of a lawfully issued EAW.

52. There is no evidence before the Court which would suggest that, owing to the passage of time identified by the Respondent, a situation has emerged in the intervening years to demonstrate that surrender would lead to a real, exceptional and oppressive disruption of his family and personal life in the most extreme of circumstances such as to engage Article 8 of the Convention.

53. Having considered the evidence adduced by the Respondent I do not consider that this is one of those rare cases where, owing to the change in a person’s family or personal circumstances in the years since his commission of an offence and/ or his conviction thereof, it would be disproportionate to order his surrender.

54. I do not therefore consider that that are grounds to refuse to order his surrender pursuant to Article 8 of the Convention or s. 37 of the 2003 Act.

55. I therefore propose to make an order for surrender under section 16 of the European Arrest Warrant Act, 2003.