High Court dismisses surrender objection and orders respondent to serve remaining Polish prison sentence.

THE HIGH COURT

[2025] IEHC 548

Record No. 2024 No. 213 EXT

BETWEEN

MINISTER FOR JUSTICE

APPLICANT

AND

RAFAL NIEWIADOMSKI

RESPONDENT

JUDGEMENT of Mr Justice Patrick McGrath delivered on the 14 October 2025

1. The Respondent is sought by Poland on foot of a European Arrest Warrant [‘EAW’], dated the 19 January 2024, issued by Hanna Konrad, a Judge of the Regional Court in Torun.

2. He is sought to serve a sentence of imprisonment imposed by the District Court in Torun on the 21 April 2021. The enforceable domestic decision is described in Part B of the EAW as ‘cumulative sentence of the District Court in Torun of 21 April 2011’, the sentence then imposed was one of 7 years imprisonment of which there remain 4 years and 8 months to be served.

3. The Respondent was arrested on the 16 October 2024 pursuant to a Schengen Information System alert [‘SIS alert’ ] and has remained on bail throughout the currency of these proceedings. An EAW was duly produced and the matter adjourned from time to time pending the determination of this application. Uncontroversial Matters

4. No issue is taken in relation to identity, and I am in any even satisfied that the Respondent is the person sought on this EAW.

5. The warrant was issued by a Judge assigned to the Regional Court in Torun, a ‘judicial authority’ within the meaning of s.2 of the European Arrest Warrant Act, 2003 [‘the 2003 Act’].

6. I am satisfied that the surrender is not prohibited for any of the reasons set out in ss 22, 23 and 24 of the European Arrest Warrant Act, 2003 (as amended) [‘the 2003 Act’].

7. The warrant is, so far as is practicable, set out in the form of the Annex to the Framework Decision and I am satisfied the information provided therein satisfies the requirements of s. 11 of the Act.

8. There are eleven offences set out in the Warrant and they are described as falling within Article 2.2 of the Framework Decision and specifically the boxes marked ‘swindling’ and ‘participation in an organised crime group’ . At paragraph E2 of the EAW, however, a detailed description of the offending is set out and it is therefore necessary to show correspondence.

9. Section 5 of the 2003 Act provides:-

‘For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State’.

10. The relevant principles for showing correspondence are well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence – Minister for Justice v Dolny [2009] IESC.

11. Having considered the description of the offending as set out in the said paragraph E2, I am satisfied that the conduct described would correspond to the following offences under Irish Law:-

(i) Offences 1, 6, 9 and 10 correspond to the offence of Theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001;

(ii) Offences 7, 8, 10 and 11 correspond to the offence of Possession of stolen property contrary to s.18 of the Criminal Justice (Theft and Fraud Offences), Act 2001;

(iii) Offences 2, 3 and 4 correspond with the offence of conspiracy to pervert the course of justice contrary to common law; and

(iv) Offence 5 corresponds to an offence of Participation in an organised criminal group contrary to s. 71 of the Criminal Justice Act, 2006

12. The Respondent is sought in order to serve the balance of a sentence of 7 years imprisonment, being 4 years, 8 months, and 8 days and therefore the minimum gravity requirements set out in s. 38 of the Act are met.

13. The Respondent objects to surrender on five grounds:- a. The EAW is not compatible with s.11 of the 2003 Act;

b. Surrender ought to be refused owing to the operation of issue estoppel;

c. Non compliance by the issuing state with the requirements of s.45 of the 2003 Act;

d. Surrender would constitute a breach of Article 8 of the European Convention on Human Rights [‘ECHR’];

e. Surrender would amount to an abuse of the process of this Court. Relevant Procedural History

14. The following procedural history is not in dispute between the parties:-

(a) The Respondent was previously the subject of an EAW (Ref No. Kop 44/07) on foot of which he was arrested in Spain on the 18 May 2009 in order to serve a one year sentence imposed in case reference VIII K 551/05. He consented to surrender and served that sentence;

(b) On the 27 May 2009 he was served with an EAW (II Kop 19/09) seeking his surrender to serve sentences imposed in two cases (II K 670/03 and II K 267/03).

He refused to consent to the waiver of specialty in respect of this EAW. In February 2010, the Spanish Court refused consent to waiver for this warrant;

(c) The Respondent served the sentence at (a) and left Poland within 45 days of his release;

(d) An EAW (Ref II Kop 29/12) was sent to Ireland seeking his surrender in respect of inter alia the offences in (b) above. Surrender was refused by the High Court in 2015;

(e) A further EAW issued on the 15 November 2021 (Ref No III Kop 98/21) and he was surrendered thereon and released apparently having only served 9 days in prison

15. In response to a request issued by this Court pursuant to s. 20 of the 2003 Act, the issuing judicial authority [‘IJA’ ] confirmed that the Respondent has fully served the sentence imposed in file VIII K 551/05 and that time spent on remand and following arrest were incorporated into the sentence served.

16. As the Respondent had not personally attended at this trial for the offences included in this EAW, the IJA were asked to set out in detail the matters required by Part D of the EAW and in particular ‘the process by which the High Court may be satisfied that Rafal Niewadomski knew about the trial, that he had mandated a lawyer to defend him and that he was, in fact, defended by that lawyer’. The reply received stated:-

‘the Court informed the Respondent on (? Of ) the date of the trial and the notification was sent to the address of his attorneys office. [The Respondent] failed to appear at the trial on 21 April 2011, his defence attorney was present. Then, after the sentence was published, both the prosecutor and the defence attorney submitted the appeal from sentence. Tbe [Respondent] was informed of the date of the appeal trial at the address of his attorney’s office.

[The Respondent] failed to appear at the trial on 30 June 2011, his attorney was present. The Regional Court in Torun at the trial on 30 June 2011 issued the sentence in which the submitted appeals were recognised as obviously groundless and the appealed sentence of the Court of First Instance was upheld’

17. It was also confirmed that, as the Respondent had only spent some nine days in custody when surrendered to Poland in 2023, the authorities had not in that short time sought his waiver of speciality in relation to this matter.

Section 11A Objection

18. The Respondent has submitted that there is an unacceptable lack of clarity or confusion as whether two particular sentence, II K 267/03 and VII K 551/05, might form part of the time remaining to be served by the Respondent as part of the amalgamated sentence for which his surrender is now sought (VII K 241/11).

19. A request for additional information was sent to the IJA on the 20 January 2025 and a reply received on the 23 January 2025. Having considered all the information now available, including the EAW itself and this additional information, there is now clarity as to what were the terms of the amalgamated sentence (VII K 241/11) which forms the basis of this application, what credit was given to the Respondent for time served in relation to sentences that were included in the said amalgamated sentence and what period of time remains to be served by the Respondent if surrendered on foot of this Warrant.

20. The following is now established on the evidence:

- Three sentences were included in the application for amalgamation being (a) a sentence of 3 years imposed for case 670/03, a sentence of 5 years imposed for case 267/03 and a sentence of 1 year imposed for case 551/05;

- At the request of the Respondent these sentences were amalgamated (Case VII K 241/11) and an amalgamated sentence of 7 years imposed by a Court in Torun on the 24 April 2021;

- Time served for Case 551/05 has been credited to the Respondent;

- The Respondent has also been credited with approximately 16 months for the time served in respect of Case 267/03;

- The time to be served by the Respondent is the balance of the 7 years (less the already served time for Case 551/05 and Case 267/03)

- The balance of the sentence on VII 241/11 is therefore 4 years 8 months and 8 days.

21. This ground of objection is therefore dismissed.

Section 45 Objection & Issue Estoppel

22. The Respondent submits that surrender ought to be refused as the offences the subject matter of this EAW, were already adjudicated upon in previous EAW proceedings heard and determined by Donnelly J (Case Reference No: 2013/16 EXT) [‘the First EAW’]

23. The Respondent submits that issue estoppel arises as:-

(i) The decision of Donnelly J in 2015 was a final judgment of a court of competent jurisdiction involving the same parties;

(ii) The decision was clear; and

(iii) The decision made a factual finding that has not changed and is binding on the Court

24. In response to multiple section 20 requests sent to Poland following receipt of the first EAW, the IJA confirmed that the Respondent was never personally informed about his scheduled trial(s) in respect of cases Ref No II K 670/03 and II K 267/03 (the cases which led to the issuance of that warrant and indeed the present warrant). The Polish authorities were relying upon Section 3.1.b of the Table in Part D of the EAW and Donnelly J found that the conditions were not met permitting such reliance as the Respondent was ‘clearly not officially notified of the scheduled date and place of the trial’.

25. The Respondent further submits that Henderson v Henderson [1843] 3 Hare 100 is also of application in that any information that the Applicant seeks to rely upon was available in 2015 when this matter was last before the High Court.

26. The Respondent submits that, as found by Donnelly J in 2015, reliance cannot be placed by the Applicant on s. 45 of the 2003 Act for the very same reasons as set out in her judgment therein.

27. The Applicant submits that the essence of Donnelly J’s judgment in 2015 was that that the IJA had persisted in invoking D3.1(b) as the basis for satisfying the conditions required by s.45 of the 2003 Act, but that the information underpinning that persistent invocation was insufficient. In the current EAW, however, D.3.2 is relied upon from outset and no reliance is placed upon D.3.1(b) of s. 45 of the Act. This is therefore a different factual circumstance.

28. The Minister further submits that two consequences flow therefrom: firstly, the Court must now assess whether the Respondent’s trial rights were respected by analysing the circumstances giving rise to the ticking of box D.3.2 and secondly, issue estoppel does not arise.

29. The Applicant says that any consideration of whether the Respondents fair trial rights were vindicated commences, in respect of this current Warrant, with an analysis of Paragraph D.3.2 and this analysis must be conducted in light of the decision of the Supreme Court, Baker J., in Minister for Justice v Zaranescu [2020] IESC 59.

30. The Minister further submits that in this case, the Respondent applied for the amalgamation of the sentences originally imposed upon him and the amalgamation did not therefore occur, as for example in the case of Zdziaszek [Case C-271/17 PPU], by operation of law. Here the Respondent expressly instructed his lawyer to amalgamate the sentences. The Respondent is therefore seeking to rely upon s. 45 to object to surrender on foot of an amalgamation of sentences which was done upon his request by counsel expressly instructed by him and who represented him at such application.

31. It is accepted that the Respondent was not present at the amalgamation hearings because he was at that time in Ireland. The Applicant submits that it would clearly be absurd that a person whose surrender is sought on multiple sentences could instruct a lawyer from abroad to apply to amalgamate those sentences and further instruct them not to appear at the amalgamation hearing, thus neutralising the amalgamated sentence for the purpose of surrender.

32. The Applicant further submits that this is a new warrant which the Court is required to consider, and the requesting judicial authority is relying upon a different basis to contend that the defence rights were not breached. It is further submitted that the application of the Supreme Court decision in Zaranescu, which post-dates the Judgment of Donnelly J in this matter in 2015, constitutes a change in the legal position and gives rise to a fresh analysis of whether the Respondent’s s.45 rights were vindicated.

33. The applicant does not say that the decision of Donnelly J was necessarily made per incuriam but rather that there has been a significant refinement of the manner in which the question of whether the subject of a warrant ‘was aware of the scheduled date of trial’ and breach of trial rights issues are considered.

Decision

34. The principle of res judicata does not apply to extradition applications in the sense that a prior refusal of surrender, absent abuse of process, does not per se preclude an application for surrender pursuant to a new arrest warrant. This was confirmed by Burns J in Minister for Justice v Klubikowski [2021] IEHC 292 when he stated as follows at paragraph 16 of his judgment:

‘It is, by now, well established law in this jurisdiction that the principle of res judicata does not apply to proceedings seeking extradition or surrender. The refusal of a court to surrender on foot of a warrant is not of itself a bar to a subsequent request for surrender on a fresh warrant…..

35. Furthermore, it is settled EU Law that in principle several EAWs may be issued successively against the same requested person.

36. Issue estoppel may however in principle arise in the context of EAW proceedings. This was made clear by O’Malley J in Minister for Justice v Fassih [2022] IESC 10, where she confirmed that issue estoppel can arise in such proceedings ‘in the absence of a change in the relevant legal or factual circumstances’

37. The elements necessary to give rise to an issue estoppel, as set out by Keane CJ in Sweeney v Bus Atha Cliath [2004] 1 IR 576 and more recently by McDonald J in George v AVA Trade (EU) Ltd [2019] IEHC 187, were endorsed by O’Malley J in Fassih. The relevant criteria are:

(a) The Judgment was given by a court of competent jurisdiction;

(b) It was a final decision on the merits

(c) The Judgment given determined a question which is raised in the subsequent litigation

(d) The parties to the subsequent litigation are the same parties as the parties to the previous litigation

38. At paragraph 125 of her judgment, O’Malley J explained how issue estoppel might apply in such proceedings as follows:-

‘It seems to me clear from all the foregoing that issue estoppel can, in principle, arise in the context of EAW proceedings. It will not prevent consideration of a new warrant, after a refusal to surrender in respect of an earlier one, for the purpose of determining whether or not the respondent should be surrendered.

However, it may, in the absence of a change in the factual circumstances, determine the outcome of an issue sought to be raised in relation to that new warrant. I would consider, in this context, that a distinction between ‘technical’ and ‘substantive’ issues may not be particularly helpful. However, it seems that a conclusive ruling on a legal issue that is not specific to the terms of the individual warrant before the court may in principle be binding on the parties to the litigation in which the ruling was given, in the absence of any material change to the law. Similarly, it would seem that a refusal to surrender based on a factual finding that will not change (for example, in relation to the age of criminal responsibility) could be binding. However, a decision that arises from the terms of the warrant itself may not have the same effect, since each new warrant can give rise to new issues and must be given full consideration’

39. At paragraph 129 she went on to say the following:-

‘129. A further important consideration is that domestic law, while attributing high value to the principles of finality in litigation, does not entirely preclude the retrospective effect of a judicial decision that sets a precedent in law. As Murray CJ said in A. v Governor of Arbour Hill Prison, such a decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or a similar wrong ‘provided they are of course entitled to bring proceedings seeking the same remedy in accordance with the ordinary rules of law such as a statute of limitations’. Significantly, he added the following: ‘It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded form cases already finally determined. This is the common law position’

40. And she further added at paragraphs 133 to 134 the following comments: -

‘It is worth noting here that in Amministrazione dell'Economia e delle Finanze and Agenzia delle entrate v. Fallimento Olimpiclub S.r.l. C-2/08 (one of the judgments cited in Cronin v. Dublin City Sheriff [2018] 3 I.R. 191), the CJEU discussed the role of a national rule of res judicata in the context of a decision made by an administrative agency when interpreting EU law in relation to an agreement about tax. The Court agreed that the domestic rule of finality did not require to be disapplied with the effect of reopening the decision. However, it stated that the decision could not be given binding effect in relation to subsequent years, if it was in breach of EU law. This appears to indicate that a national court should, when considering a matter that is related to previous proceedings but requires a separate decision, apply the correct law as found by the CJEU rather than continuing with the mistaken view, even if national procedural rules would favour the latter. As it happens, the domestic law (as discussed in Keogh and the other authorities mentioned above) would lead to the same conclusion in a similar context.

134. While EU law respects national rules of procedure, and in particular respects the legal principles underlying the concept of the finality of judgments, it also enjoins Member States to ensure that the principles of effectiveness and equivalence are observed. Equivalence is not in issue here, but effectiveness may well be impeded in circumstances where the application of the national rule could result, not alone in a clearly-justified refusal to reopen a past

decision, but in a more questionable refusal to apply the correct EU rule to a

decision that has yet to be made.’

41. In her 2015 decision in the previous application for surrender, Donnelly J held as follows:-

‘Therefore in this case, the Polish certification in this case does not comply with the European Convention on Human Rights standards on notification of trial.

It is not for this court however to see whether other facts referred to by the Polish Authorities would be in accordance with the other circumstances in which a trial in absentia may in fact take place and be permitted. I do note that recital 6 of the Framework Decision makes clear that it is for the Issuing State to give the relevant assurance. I am of the view that while the conditions are alternative, it would not necessarily prevent a Judicial Authority from giving an assurance under a number of headings. For example; a person could be both officially notified of a trial and also mandate a lawyer. However, it was for the Judicial Authority to certify that in the first place.

I have considered whether this matter should be adjourned again for the purpose of seeking further information but it is clear that the Polish authorities have now certified on three separate occasions that Section 3-1B has been met and that they have not certified anything else’

42. At the hearing in 2015, the Court had to consider whether the requirements of s. 45 were met in circumstances where the IJA had certified that the conditions set out in Paragraph D.3.1(b) were met. On the evidence presented, Donnelly J concluded that there was insufficient information to permit her to conclude that the conditions required by paragraph D.3.1 (b) were made out and, that being the basis upon which it was argued the requirements of s.45 were met, refused surrender.

43. In the present application however:-

(i) Reliance is placed upon Paragraph D.3.2 as demonstrating compliance with s.45 of the 2003 Act;

(ii) No reliance whatever is placed by the IJA upon paragraph D.3.1(b); and

(iii) Since the date of Donnelly J’s judgement, the Supreme Court has clarified the legal position in this regard in Minister for Justice v Zaranescu [2020] IESC 59

44. The Court here is considering a new Warrant from Poland and specifically an EAW wherein the IJA seeks to rely upon Paragraph D.3.2 in order to demonstrate compliance with s. 45 of the 2003 Act. In other words, the IJA asserts therein that the rights of the Respondent were upheld in the course of the ‘trial resulting in the decision’ (being the hearing at which the sentences were amalgamated at the instance of a lawyer instructed by the Respondent) owing to compliance with Paragraph D.3.2. This is a different factual and legal issue which has not previously been determined by a court in this Jurisdiction and was not an issue which had to be considered and upon which a determination was previously made by Donnelly J in 2015.

45. Issue estoppel does not therefore operate, and this court is not precluded from considering whether or not there has been compliance by the issuing state with the terms of Paragraph D.3.2 such as to meet the requirements of s. 45 of the 2003 Act.

46. The respondent engaged a lawyer in Poland to make an application seeking the amalgamation of a number of sentences imposed in different cases. Upon his instructions this lawyer made this application. The lawyer was present at the hearing where the sentences were amalgamated and, presumably on the instructions of the Respondent, did not exercise any right to appeal the amalgamated sentence. The Respondent is sought to serve the balance of this amalgamated sentence. The requirements of Paragraph 3.2 are clearly met on the evidence adduced.

47. In the event that I am wrong in this regard, this is a case where the Court can be satisfied on the evidence that the process leading to the ‘trial resulting in the decision’, being the decision which led to the order amalgamating the sentences (Case 241/11) was done in a manner which vindicated the rights of the Respondent. As indicated above:

- This process was done at the request of the Respondent,

- his own lawyer acted on his behalf and on his instructions in such application and

- his lawyer was informed of the outcome and, presumably on the basis of his instructions, did not lodge an appeal against the amalgamated sentence.

48. This is a situation where the evidence shows that the Respondent knowingly made a

decision to waive his right to attend at the hearing which led to the amalgamation of the sentences, and which led to the order of the Polish Court which forms the basis of this EAW.

49. Furthermore, O’Donnell J in Minister for Justice v Tobin (No 2) [2012] 4IR 147 questioned the general application of Henderson v Henderson to warrant issues in Extradition cases. Whilst accepting that repeated issuance of warrants may be prohibited where there is demonstrable bad faith or the improper seeking of a tactical advantage by the IJA, he said that ‘those situations require to be analysed in the context of the law relating to warrants, and not of some hybrid version incorporating the principle in Henderson v Henderson’.

50. There is no evidence any mala fides or improper motive on the part of the IJA and no issue therefore arises in this regard owing the issuance of a second warrant.

51. For these reasons I dismiss the objections made to surrender on the basis of noncompliance with s. 45 of the 2003 Act, issue estoppel and Henderson v Henderson. Article 8, Abuse of Process and Delay

52. The Respondent submits that the delay in the present proceedings is so egregious as to amount to an unwarranted interference with his right to enjoyment of family life as guaranteed by Article 8 of the European Convention on Human Rights [‘the Convention’]. In this regard he relies upon the following:- a. The inordinate and egregious length of the delay, lack of explanation for the delay and the date of the offences;

b. The fact that the Respondent has been living in the State with his family since 2005;

c. The conduct and knowledge of the Respondent; and d. The nature of the offences for which his surrender is sought.

53. The Respondent sets out the delay in the present case as follows:-

- The offences in Poland were committed between 2001 and 2005;

- In 2009 he consented to his surrender to Poland from Spain on separate EAW proceedings and served a custodial sentence from which he was released on the 16 May 2010

- The Respondent was before this Court on the first EAW seeking surrender for the current offences in 2015 and surrender was then refused

- In 2015 he was issued with a new passport by the Polish authorities which was sent to his home address in Kerry

- In 2022 he was surrendered to Poland on separate EAW proceedings and was released after only 9 days in custody and ordered to leave Poland. No attempt was made to enforce this sentence whilst in Poland

- This EAW was issued in 2024, and no explanation has been offered for the delay between 2015 and 2024

- The Respondent has at all times lived openly in the same address in Kerry

- The issuing state has provided no reason for its failure to seek the surrender of the Respondent on foot of this EAW whilst also seeking his surrender on a separate EAW in 2022.

54. The Respondent submits that the public interest element is diluted in a significant manner where, as in the present case, the IJA delayed in taking any action against the Respondent for such a lengthy period of time.

55. The Respondent is married with two children. He and his family are settled in their home in Kerry, and he has a good work record in this jurisdiction.

56. The Respondent submits that his conduct in relation to the proceedings is a matter of relevance to the court’s assessment under s. 37 of the 2003 Act. He submits in this regard that not only has he not hidden away but has remained living openly at the same address for the last 9 years since Donnelly J’s decision refusing surrender on the first EAW relating to these matters.

57. Finally, the Respondent submits that the Court ought, in conducting a balancing exercise pursuant to s. 37 of the 2003 Act, look at the nature of the offences for which his surrender is sought. He submits that the eleven offences for which surrender is sought are not at the higher end of the scale.

58. The Applicant submits that, whilst it is of course a matter of personal hardship for the Respondent and his family if he is surrendered and separated from them, this is a consequence of all surrenders which concern partners and their children

59. The Applicant refers to the fact that the Respondent was aged 30 at the time of these offences and the offences involved an ostensibly sophisticated and large-scale criminal conspiracy. The original (16 years) and accumulated (7 years) sentences demonstrate these are very serious matters and the public interest in the serving of these sentences is therefore high.

60. The Minister submits that the facts of this case, taken in the round, do not reach the level of exceptionality such as might persuade this court to consider refusal of surrender pursuant to Article 8 of the Convention or Article 41 of the Constitution.

61. Insofar as the abuse of process argument is concerned, the Minister refers to the comments of O’Donnell J at paragraph 8 of his Judgment in JAT (No 2) and to the summary of the applicable principles by Burns J at paragraph 68 of Minister for Justice v Angel and notes that the argument is founded effectively on delay alone but ignores the active steps taken by the Polish authorities previously to seek the surrender of the Respondent.

Decision

62. The legal principles to be applied when considering an objection that surrender should be refused under s. 37 of the 2003 Act on the basis that it would constitute a disproportionate interference with family rights, are well settled in Irish Law.

63. From the case law referred to by the parties (including Minister for Justice v Vestartas [2020] IESC 12, MJELR v JAT (No 2) [2016] IESC 17 , Minister for Justice v Palonka [2022] IESC 6 and Minister for Justice v T.N. [2019] IEHC 74) , the following are the principles of significance to the objection made pursuant to Article 8 of the Convention on the facts in this case:- a. 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;

b. 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;

c. 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;

d. 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 e. 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

64. The principles to be applied where it is asserted that surrender should be refused as the application amounts to an abuse of the process of the Court were helpfully and comprehensively summarised as follows by Burns J in Minister for Justice v Angel [2020] IEHC 699 Burns J as follows:-

‘(a) there is no bar to bring a fresh application to the Court for surrendered

(b) there can be circumstances which justify or require the High Court refusing an application for surrender on the basis of abuse of process;

(c) a finding of an abuse of process should not be made lightly

(d) it is only where the case has exceptional circumstances that an abuse of process will be found (although exceptionality is not the test) and that the abuse of process is that of the High Court in this jurisdiction rather than a concern about an abuse of process to put the requested person on trial;

(e) there is broad public interest in bringing things to finality in one set of proceedings;

(f) there is a strong public interest in Ireland complying with its international obligations and surrendering individual in accordance with the relevant extradition provisions;

(g) a repeat application for surrender is not per se abusive of process. It would only be an abuse of process where to do so is unconscionable in all the circumstances;

(h) mala fides or an improper motive is not a necessary precondition for an abuse of process; and

(i) the Court should look to the cumulative factors which may make an application for surrender oppressive or unconscionable‘

65. The procedural history of the matters in question is somewhat complex and has been set out above. Amongst the dates of significance to the question of delay are:-

(i) The date of the commission of the offences for which surrender is sought range from the earliest date 26th May 2001 until the latest date for the offences being 2nd April 2005 ;

(ii) The date of the amalgamation of these sentences, at the request of the Respondent, by the District Court in Torun being the 21 April 2011;

(iii) The date he was arrested in Spain on foot of an European arrest wanted being

18 May 2009 and the date of his surrender being 20 May 2009 in which he consented,

(iv) The date the IJA issued the Spanish authorities seeking the Respondent’s consent to waive the rule of specialty in order that he might serve these sentences (27 May 2009) and the date when the Spanish Court refused a subsequent application by the IJA to waive specialty (February 2010) ;

(v) The date of the previous EAW seeking his surrender from Ireland for these offences, which application was refused on 24 March 2015;

(vi) The date of his surrender to Poland from Ireland in 2023 and the failure of the Polish authorities to seek a waiver of specialty in that time (warrant issued 15 November 2021) (released from custody in Poland 18 August 2023);

(vii) The date of the current EAW which issued 19 January 2024.

66. There has been a significant passage of time since the commission of these offences and indeed since the making of the order in 2011 amalgamating the sentences in Poland.

It is however well settled law that delay is not a standalone ground for refusal of surrender.

67. Delay may for example, as claimed here, have led to such a change of circumstances in the situation of a Respondent and / or his family members such as to engage Article 8 of the Convention and lead a Court to consider whether it would in those circumstances be disproportionate to order surrender – Palonka

68. There is no doubt that the surrender of the Respondent would lead to an interference with his family rights given his personal and family circumstances. It is however recognised that this is an inevitable consequence of extradition and will in ordinary course not amount to a bar to the surrender of a person sought by another party to the Framework Decision.

69. This is not one of those exceptional cases where, owing to the passage of time, the surrender of this Respondent to serve the sentence imposed in Poland for relatively serious offences, could be seen as engaging Article 8 of the Convention. In other words, the interference with the family rights of the Respondent is not so exceptional as to lead this court to consider whether his surrender would be disproportionate and a breach of his rights under the Convention or the Constitution.

70. Nor do I consider that, looking at the cumulative factors cited by the Respondent, that this is one of those rare cases where it has been demonstrated that this application for surrender amounts to an abuse of the processes of this Court.

71. As was made clear by Burns J in Angel a finding of abuse of process should not be lightly made and the issue for determination when such an argument is advanced is whether the processes of this Court have been abused. The making of a second application for surrender, as here, is not per se abusive of the processes of this court but it may be a factor in considering if there has been an abuse of process.

72. In the present case the surrender of the Respondent is sought to serve the balance of a sentence lawfully imposed in respect of what must have been relatively serious offences, given the length of the individual and amalgamated terms of imprisonment imposed. There is no suggestion of mala fides or improper motive on the part of the issuing state in now seeking surrender again, the previous application for surrender having failed in 2015. And though there was perhaps a lack of diligence on the part of the Polish authorities at various stages over the years, sight cannot be lost of the fact that on a number of occasions they have sought to have the Respondent serve the balance of this amalgamated sentence. The IJA sought to have the rule of specialty waived in 2009/2010, unsuccessfully sought his surrender from Ireland in 2013 and were seemingly in the process of preparing to ask him to waive specialty when he was surrendered for another offence from Ireland in 2023.

73. This state has an obligation to give effect to its obligations under international agreements, including the Framework Decision. The complaint of the Respondent in relation to abuse of process is in reality founded on delay. Although there has been a considerable lapse of time since the commission of the offences in question here, it is not a case where the delay has led for example (as in Palonka) to the emergence of such personal and family circumstances such as to engage Article 8 of the Convention.

74. This is not in the view of this Court one of those rare cases where the evidence has shown an abuse of the process of the Court arising from the making of this second application. It is not therefore a case where this Court should intervene and prohibit surrender.

75. This ground of objection is therefore dismissed.

76. The court will therefore make an order for the surrender of the Respondent to Poland pursuant to s. 16 of the 2003 Act.