High Court dismisses surrender objection regarding Polish sentence execution and orders respondent's arrest warrant surrender.

THE HIGH COURT

[2025] IEHC 549

[2023 No.152 EXT]

BETWEEN

MINISTER FOR JUSTICE

APPLICANT

AND

GRZEGORZ KOLTUN

RESPONDENT

JUDGMENT delivered by Mr. Justice Patrick McGrath on 14 October 2025

1. The applicant seeks an order for the surrender of the respondent to the Republic of Poland pursuant to a European Arrest Warrant dated the 27 March 2018 (“the EAW”).

This EAW was issued by Judge Aleksandra Machel – Dzik, Judge at the District Court of Lublin. .

2. The factual background to this application is unusual and somewhat complex. On the

16 February 1999, the Respondent was convicted before Manchester Crown Court in the United Kingdom of an offence of participating in a conspiracy to supply diamorphine. The offence involved a conspiracy with other named co-conspirators, between the 29 June 1997 and the 4 December 1997, to supply a controlled drug (diamorphine) to others.

3. On the 8 March 1999, the Respondent was sentenced to 18 years imprisonment for this offence. On the 31 March 2000, the Court of Appeal dismissed appeals by the Respondent against his conviction and sentence.

4. On the 10 April 2000, the Respondent filed a motion to transfer the execution of his sentence from the United Kingdom to Poland. It was this motion which resulted in the Circuit Court in Lublin receiving a request from the Polish Ministry of Justice seeking the transfer of the execution of this sentence. The application was made pursuant to Article 609(1) of the Polish Code of Criminal Procedure, which provides that if a foreign state requests the execution of a validly imposed penalty of deprivation of liberty with respect to a Polish citizen or a person having permanent residence within the territory of Poland, the Minister for Justice must bring a motion before the competent court in Poland to issue an order regarding the admissibility of the taking over of the order for execution in Poland.

5. On the 20 November 2001, the Circuit Court in Lublin issued a decision to ascertain the admissibility of transferring the execution of the respondent’s sentence to Poland.

This was done on the basis that he was a Polish citizen and had ‘agreed to serve the sentence in Poland’. As he was still in custody in the UK at that time, to enable the transfer of the execution of the sentence, the Polish Court implemented a precautionary measure in the form of the temporary arrest of Mr Koltun for a period of 30 days following his entry into Poland. The Respondent was duly transported to Poland on the 15 September 2003.

6. The documentation received confirms that the respondent was at all times aware of these proceedings, had filed a motion requesting this transfer and had appointed a lawyer of his choice, Ms Anna Popka, to represent him in the proceedings.

7. On the 7 October 2003, the Circuit Court in Lublin decided that the offence committed in the UK constituted an offence under Polish Law. It corresponded to two offences: a misdemeanour under Article 258(1) of the Polish Penal Code and an offence under Article 42 of the Act on the Prevention of Drug Abuse, 1997. The Court however held that the penalty imposed in Manchester Crown Court was ‘unknown’ under the Polish legal code. For that reason, the Court in Lublin ‘converted’ the sentence of 18 years imposed by the Manchester Crown Court, issuing a decision in which it ‘substituted’ a sentence of 15 years imprisonment. That was a ‘penalty …. prescribed by law for the same offence in Poland’. The court furthermore gave the Respondent credit for the time he had spent in custody between 8 December 1997 and the 7 October 2003.

8. The Respondent’s counsel. Ms. Anna Popko appeared on his behalf at this hearing and was in due course serve with a copy of the decision of the Court with instructions as to the time and means of appeal. No appeal was lodged against the decision.

9. It was this decision, based on Article 611C of the Polish Criminal Code which provides for the taking over of an order for execution of a sentence imposed by a foreign court by a Polish Court, which ‘converted the sentence of deprivation of liberty’ imposed in Manchester Crown Court, that became the basis for the detention of the Respondent thereafter in a Polish prison. The Respondent remained in custody on foot of this order until the 12 December 2005. On this date, pursuant to a decision of the Tarnobrzeg Circuit Court granting him a break of six months from serving the sentence, he left custody initially for a period of 6 months and thereafter, with the permission of the Court, for a further period of six months. The Respondent did not, as was his legal obligation, return to custody at the end of this 12-month period but instead left for Ireland.

10. On the 27 March 2018, an EAW was issued for the Respondent by a Judge of the District Court in Lublin. This warrant seeks to enforce the remaining sentence of six years, 11 months and 26 days imprisonment.

11. The Respondent was arrested on an SIS alert on the 11 September 2023. The EAW was duly produced to the Court on the 14 September 2023. The Respondent was admitted to bail and has remains at liberty pending the outcome of these proceedings.

Uncontentious Issues

12. No issue is raised in relation to identity, and I am satisfied the respondent is the person in respect of whom this EAW has been issued.

13. The EAW is properly issued by a judicial authority in the issuing state.

14. The Court is not required to refuse surrender under ss. 21A, 23 or 24 of the 2003 Act.

15. No issues arise under ss. 39, 41, 42, 43 or 46 of the 2003 Act.

Gustas Issue

16. The hearing of the application for surrender pursuant to s.16 of the 2003 Act began before Greally J on the 19 December 2023. On that date the parties made submission relating to the application of the decision of Donnelly J in Minister for Justice v Gustas [2021] IEHC 572 on the facts of this case.

17. In that case Donnelly J considered a situation where a sentence had been imposed in Norway for a drugs offence, and which was subsequently ‘recognised in the Republic of Lithuania by the decision of the District Court’ pursuant to a 2011 bilateral treaty.

Following the Respondent’s release, Lithuania subsequently sought his surrender on foot of an EAW to serve the remainder of the sentence.

18. A preliminary reference was made by the High Court to the CJEU as to the application of the Framework Decision to the case. The CJEU ruled that the Framework Decision must be interpreted as meaning that an EAW may be issued on the basis of a judicial decision of the issuing state ordering the execution, in that state, of a sentence imposed by a court of a third state where, pursuant to a bilateral agreement between those states, the judgement in question has been recognised by a

decision of a court of the issuing state.

19. In a subsequent ruling, however, the High Court held that s. 10(3) of the 2003 Act could not give an interpretation conforming to the Framework Decision. It was a requirement of Irish law that the sentence which is sought to be enforced on foot of an EAW received from another member state, must have been imposed in that issuing state. Section 10(3) did not permit of an interpretation which allowed this State to surrender where the issuing state was seeking to enforce a sentence imposed in a third state even where, as in Gustas, that sentence has subsequently been recognised in the issuing state. Surrender therefore was refused in that case.

20. Following the receipt of additional information from the IJA, Greally J issued a judgment on the 10 May 2024 in which she held that the facts of the present case are readily distinguishable from those in play in Gustas , as this case involves a sentence which had been converted under the Convention on the Transfer of Sentenced Persons. She held that the 15-year sentence in respect of which the respondent is sought must be regarded as having been imposed in Poland and the issue identified in Gustas had therefore no application to this case.

21. The parties did not seek to re-open that argument and, for the sake of completeness I am in agreement with the conclusions of Greally J on this issue.

Points of Objection

A. Objection re Enforcement of Sentence

22. The Respondent refers to Articles 21 and 22 of Framework Decision 2008/909/JHA to argue that Poland may no longer enforce the sentence imposed upon him in Lublin Circuit Court because he has absconded, and the United Kingdom has the sole power of enforcement of this sentence.

23. It is clear from the documentation provided in this case that the Polish Judicial authorities converted the sentence of 18 years that had been imposed in Manchester Crown Court into a measure of Polish law. This was done in line with provisions of Polish law that had been adopted in order to give effect to the Convention on the Transfer of Sentence Persons, 1983. Greally J, correctly in my view, held that the 15- year sentence in respect of which Mr Koltun is now sought must therefore be regarded as having been imposed in Poland.

24. As submitted on behalf of the Minister, the Respondent’s reliance on the 2008 Framework Decision is misplaced for the following reasons:-

(i) The central question is whether the sentence is enforceable as a matter of Polish law. The Polish authorities clearly consider the sentence to be enforceable and in accordance with the principles of mutual trust and confidence, this Court must operate on the basis that it is so enforceable unless there is some reason to cast doubt on this assumption. No such reason has been advanced, and the Respondent has not, for example, pointed to any measure of Polish law that would support the assertion that this sentence is no longer enforceable in that jurisdiction following his absconding therefrom;

(ii) There is no provision in the Convention on the Transfer of Sentenced Persons 1983, the 1997 Additional Protocol or the 2017 Amending Protocol to the effect that a transferred sentence is unenforceable by the administering state once a transferred person absconds. I agree that any such interpretation, for which there is no legal basis, would lead to an absurd result and allow prisoners to escape punishment with impunity. But in any event, as already made clear, the question of enforceability is a matter of Polish law rather than what is in the Convention and the sentence is enforceable under that law; and

(iii) The 2008 Framework Decision has no relevance on the facts of this case due to the date on which it entered into force. The decision by the Polish Court to enforce the UK sentence was made in November 2001 and the Framework

Decision did not come into force until the 5 December 2011 with an implementation date of the 5 December 2011. Article 28(1) of the Framework

Decision makes it clear that requests received before the 5 December 2011 continue to be governed by the existing legal instruments on the transfer of sentenced persons. Given the date of transfer of the sentence in issue here, the Framework Decision can have no impact on the sentence.

25. In any event and even if the Court were wrong and the Framework Decision were to have some application to this case, a Framework Decision does not have direct effect and does not confer enforceable rights, as made clear in a number of decisions of the Superior Courts including Minister for Justice v Kairys [2022] IESC 51, but rather provides for the result to be achieved in national law. And furthermore, whilst Article 22(2) speaks of the ‘right to enforce the sentence’ reverting to the issuing state, this does not mean that the issuing state has the sole right of enforcement, and the executing state still has the right to enforce the sentence it has recognised under its own law

B. Objection re Lack of Clarity and Section 11(1A) of the 2003 Act

26. The Respondent claims that there has been a failure to comply with the requirements of section 11(1A) of the 2003 Act.

27. He firstly submits that there has been a failure to comply with Section 11(1A)(d) of the 2003 Act as the EAW sets out the legal classification of the offence in Poland rather than its classification under English law.

28. Section 11(1A)(d) requires that the warrant specify the ‘nature and classification under the law of the issuing state of the offence concerned’. Poland is the issuing state and the EAW therefore correctly sets out the classification of the offence under the law of the issuing state as is specifically required under Section 11(1A)(d).

29. The Respondent secondly submits that inadequate detail has been provided regarding the offence and specifically takes issue with what he says is the ‘broad’ timeframe in the EAW. As is clear from case law, the warrant must provide basic information about the offences so that this Court can properly carry out its functions under the 2003 Act and so that the Respondent can know the reason for his arrest. There is no requirement for the EAW to show a prima facie case for the offence or to set out every detail of the evidence in support of the same.

30. The Warrant in this case provides sufficient detail to enable this Court to carry out its functions under the 2003 Act and any claimed absence of details has not in any way inhibited the Respondent from contesting the application for surrender and he clearly knows the reason why his surrender is sought.

31. Thirdly, the Respondent claims that there has been non-compliance with the provisions of s. 11(1A)(f) as the warrant does not set out the ‘place’ where the offence was committed. In additional information dated the 1st of August 2024, the IJA says that it is not in possession of any more detailed information as to the time and place of the commission of the offence. The Respondent says that this is of relevant because it prevents this court from considering the question of whether the issue of extraterritoriality might arise under s. 44 of the 2003 Act.

32. The absence of detail as to the ‘place’ where the offence was committed does not cause the Respondent any injustice or disadvantage in this case. This is a case where the Respondent, having been tried, convicted and sentenced for the offence in the United Kingdom, consented to a transfer of his sentence to Poland and served half of his sentence. He is uniquely in a position to provide any evidence which might support any argument that an issue of extra territoriality might arise under the 2003 Act. He has wholly failed to engage with this issue and put before the Court any evidence to suggest (a) that an issue of extra territoriality might arise or (b) that some injustice has been caused to him.

33. This Court can in this case safely conclude that no issues arise under s. 44 of the 2003 Act, for the following reasons:-

(i) The Respondent, despite obviously being aware of where the offence took place, has not averred that the offence was extra territorial and nor has he raised any s.44 issues;

(ii) He has exhibited an opinion from Fred Mc Intosh KC whom he has instructed, in which it is stated that the Respondent was convicted ‘for an act committed in Great Britain’; and

(iii) Even if he had engaged in a conspiracy with an extra territorial dimension, that does not necessarily give rise to an issue under s. 44 of the 2003 Act. As noted by Burns J in Minister for Justice v Hughes [2020] IEHC 229 conspiracy may transcend national borders and acts taken in furtherance of the conspiracy may occur in a number of different states. Even though a conspirator may never enter a state where acts are carried out by co-conspirators in furtherance of the conspiracy, he or she will be taken to have carried out such acts wherever carried out by co-conspirators.

34. I therefore reject the submission that there has been a failure to comply with the requirements of Section 11 of the 2003 Act.

C. Alleged Breach of the Rule of Specialty

35. The Respondent has simply asserted that surrendered is prohibited under s.22 of the 2003 Act as he is concerned that if he is surrendered to Poland, he ‘will be detained in respect of a matter that is not included in the present European Arrest Warrant’

36. Section 22(2)(b) of the 2003 Act provides that, for surrender to be refused, the High Court must be satisfied that ‘the person will be proceeded against, sentenced, or detained for the purpose of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence’ . Section 22(3) states that it shall be presumed that the issuing state does not intend so to do, unless the contrary is proved.

37. The Respondent has simply made a bald assertion of a concern of a possible breach of the Rule of Specialty by the Polish authorities. He has not put before the Court any evidence to support such assertion. There is no reason to think that the issuing state would not honour its obligations as to specialty under the Framework Decision and would contravene the requirement to obtain the consent of this Court before seeking to restrict the liberty of the Respondent for any other offence. This submission is therefore rejected.

D. Correspondence

38. This is not a case where the ‘tick box’ procedure under Article 2.2 of the Framework

Decision was relied upon and it is therefore a case where it is necessary to show correspondence in accordance with s38 of the 2003 Act.

39. 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’.

40. 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 48.

41. In the EAW it is stated that, between the 29 June 1997 and the 4 December 1997, the Respondent ‘was in league’ with other persons to ‘deliver’ diamorphine to another person. Furthermore, in the description of the offence in the indictment provided by way of additional information of the 1st of August 2024, it is stated that the Respondent, between those two dates, ‘conspired together’ with various other named persons ‘to supply a controlled drug of class A namely diamorphine to another’

42. On the relevant date, being the date on which the EAW was issued namely the 27 March 2018, the act of supplying diamorphine ( a controlled drug under the Misuse of Drugs Act, 1977 ) would have amounted to a number of offences under Irish law including:-

(i) Possession of a controlled drug contrary to section 3 of the Misuse of Drugs Acts, 1977 to 1984

(ii) Sale or Supplying a controlled drug contrary to section 15 (or possibly 15A )

of the said Acts;

(iii) Aiding, abetting, counselling or procuring the commission of an offence under the said Acts, contrary to Section 21(1) of the 1977 Act; or

(iv) Conspiracy to commit an offence under the said Acts, for example conspiracy to supply diamorphine

43. The Respondent submits that that correspondence is not established as there is no indication in the Warrant or other information provided that (a) the respondent was himself in possession of drugs; (b) the respondent himself supplied diamorphine or offered to supply the same and (c) any person committed a substantive drugs offence.

44. The offence of conspiracy involves agreeing with others to engage in efforts to commit a substantive offence. In order to be guilty of an offence of conspiracy in a case such as the present, there is no requirement in Irish law that he would have ever had possession of the drugs, personally supplied or offered to supply the drugs and / or that any substantive offence was actually committed.

45. For these reasons I am satisfied that correspondence has been established in this case.

E. Section 45 Objection

46. The Respondent does not make any complaint under s.45 of the 2003 Act in relation to the proceedings in the United Kingdom which led to his conviction and sentence in Manchester Crown Court. In any event there is evidence that he was present at the hearing which resulted in his conviction and the hearing which resulted in the imposition of the 18-year sentence.

47. His complaint relates to the hearing which took place in Poland, and which resulted in the conversion of his sentence to one of 15 years imprisonment. He complains that he was ‘nor present or represented at the hearings in Poland’.

48. The initial hearing in the Lublin Circuit Court, dated the 20 November 2001, decided to ‘ascertain the admissibility of transferring the execution of the respondent’s sentence to Poland’ and thereafter implemented a precautionary measure which enabled him to be brought from the United Kingdom to Poland. His complaint must therefore concern the hearing of the 7 October 2023, at which point the decision was made to convert his sentence.

49. If the hearing of the 7 October 2023 amounted to a ‘trial resulting in the decision’ then it is necessary to consider whether such hearing complied with the specific requirements of s.45 of the 2003 Act or, were this not to be the case, whether the Court can be nonetheless satisfied that the defence rights of Mr Koltun were upheld at such hearing.

50. If, as is submitted by the Respondent, the hearing of the 7 October 2003 constituted a ‘trial resulting in the decision’, then it is clear from the papers that his defence rights were safeguarded at such hearing.

51. From the Warrant and the Additional Information, the following facts are established:-

(i) The Respondent filed the motion seeking to have his sentence transferred from the United Kingdom to Poland;

(ii) He appointed a lawyer to make such application, Ms Anna Popko, who was present during the preliminary hearing of the 20 November 2001;

(iii) It is not clear from the documentation provided if the Respondent was present at the hearing of the 7 October 2003;

(iv) Ms Popko was however summonsed for that hearing, appeared in Court and according to the IJA performed her duties;

(v) The Courts judgment of the 7 October 2003 was served on the Respondent on the 14 October 2003 with instructions set out therein as to how he might appeal. No appeal was ever lodged by or on behalf of the Respondent and the Polish authorities submit that the Respondent can therefore be deemed to have consented to the conversion of the relevant sentence.

52. The Respondent has simply asserted that he never gave any mandate to Ms Popko and never had any contact with her. No affidavit has been sworn by or on behalf of the Respondent to support this bald assertion. Similarly, the Respondent asserts that he did not receive any notice of the decision of the 7 October 2003 and did not appeal.

53. In accordance with the principles set out in Minister for Justice v Fiszer [2015] IEHC 664, in the absence of good reason to the contrary, this court should place confidence and trust in the information provided by the IJA. The court can also take account of the fact that a lawyer will, in normal circumstances, only act on instructions. No evidence has been adduced to call into question the information provided in this regard by the IJA.

54. Furthermore, as was made clear by Donnelly J in Fiszer, the fact that the Respondent may not have been aware of the precise court date is irrelevant. It is sufficient if he knew about the proceedings and evidence here clearly shows this knowledge as, he initiated the transfer application which resulted in the sentence for which his surrender is sought and instructed his own lawyer to act on his behalf in those proceedings.

55. I am therefore satisfied that if, as asserted by the Respondent, the hearing of the 7 October 2003 was a ‘trial resulting in the decision’ then the Condition 3.2 of the Table in s. 45 applies, namely:-

‘Being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial’

56. The Respondent was represented throughout these proceedings by a lawyer who he had mandated to act in the application he had initiated in Poland. He had a right of appeal which he did not exercise. The outcome of the proceedings was greatly to his benefit, as his sentence was reduced from 18 to 15 years.

57. As was made clear by the Supreme Court in Zaranescu, where an EAW concerns a trial in absentia in the requesting state, it is not the law that surrender should be refused where none of the formal grounds set out in s. 45 of the 2003 Act are met. In such circumstances, surrender must nonetheless be ordered where it is established that the Respondent’s rights of defence were fully protected during the court process in that State.

58. In the event that the Court is mistaken in concluding that Condition 3.2 applies, I have no hesitation in finding that the defence rights of Mr Koltun were fully vindicated in the proceedings in Poland which led, at his request, to the conversion of the sentence imposed in the United Kingdom to a sentence under Polish law. He initiated the proceedings leading to the conversion of the 18-year sentence imposed in the United Kingdom to a sentence of 15 years imprisonment in Poland. A lawyer instructed by him acted on his behalf, and presumably with his instructions, throughout these proceedings and he and his lawyer were served with the decision converting the sentence to a Polish sentence and were advised of his rights of appeal.

59. In the circumstances it is not, therefore, necessary to consider whether the hearing in October 2003 which converted the sentence was a ‘trial resulting in the decision’ as interpreted by the CJEU. The process leading to the imposition of such sentence complied with the requirements of s. 45 and / or was a process which vindicated his defence rights.

60. This ground of objection is therefore dismissed.

F. Objection re Conditions of Detention

61. In Minister for Justice v Rettinger [2010] IESC 45, the Supreme Court accepted that prison conditions in a requesting state could give rise to a refusal to surrender under section 37 of the 2003 Act but stressed that where such an objection is raised:

‘the burden rests upon the [respondent] to adduce evidence capable of proving that there are substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention’

62. A summary of the principles which have emerged from the case law in this regard was provided by Burns J in Minister for Justice v Angel [2020] IEHC 699 where the court said as follows:

‘(a) the cornerstone of the Framework Decision is that member states, save in exceptional circumstances, are required to execute any European arrest warrant on the basis of the principles of mutual recognition and trust;

(b) a refusal to execute a European arrest warrant is intended to be an exception;

(c) one of the exceptions arises when there is a real or substantial risk of inhuman or degrading treatment contrary to Article 3 ECHR or Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’);

(d) the prohibition on surrender where there is a real or substantial risk of inhuman or degrading treatment is mandatory. The objectives of the Framework Decision cannot defeat an established risk of ill-treatment;

(e) the burden rests upon a respondent to adduce evidence capable of proving that there are substantial / reasonable grounds for believing that if he or she were returned to the requesting country, he or she will be exposed to a real risk of being subjected to treatment contrary to article 3 ECHR;

(f) the threshold which a respondent must meet in order to prevent extradition is not a low one. There is a default presumption that the requesting country will act in good faith and will respect the requested person’s fundamental rights;

(g) in examining whether there is a real risk, the Court should consider all of the material before it and if necessary, material obtained of its own motion;

(h) the Court may attach importance to reports of independent international human rights organisations or reports from government sources;

(i) the relevant time to consider the conditions in the requesting state is at the time of the hearing;

(j) …

(k) a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of confinement in the issuing member state cannot lead, in itself, to the refusal to execute a European arrest warrant. Whenever the existence of such a risk is identified, it is then necessary for the executing judicial authority to make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk;

(l) an assurance provided by the competent authorities of the issuing state that, irrespective or where he is detained, the person will not suffer inhumane degrading treatment is something which the executing state cannot disregard and the executing judicial authority, in view of the mutual trust which must exist between the members states on which the European arrest warrant is based, must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of article 3 ECHR or article 4 of the Charter; and

(m) It is only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that, notwithstanding such an assurance, there is a real risk of the person concerned being subjected to inhuman or degrading treatment because of the conditions of that person’s detention in the issuing member state.

63. The Respondent claims that, if surrendered, there is a real risk that he would be subjected to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights.

64. In the additional information dated the 1 August 2024, following on from a request from this Court seeking assurances in relation to conditions of detention, the IJA provided a detailed and comprehensive reply in respect of the conditions to which the Respondent would be face if surrendered. Information was provided as to cell sizes for prisoners, bedding, hygiene conditions, air, temperature and lighting, nutrition, out of cell time, health services and protection of vulnerable prisoners.

65. The Respondent has here raised what can only be categorised as generalised complaints as to possible conditions of detention in Polish prisons. In support thereof he has referred to country of origin information. This information is to a certain extent historic and is largely localised to criticism by non-governmental bodies of conditions in certain institutions. There is also reference therein to reports of the Committee on the Prevention of Torture and some general recommendations made following their inspection of various Polish prisons and places of detention.

66. Assurances have now been received from the IJA that the Respondent will be detained in conditions which respect his rights and would not amount to a breach of his rights under the Convention. Applying the principles of mutual trust and confidence, this court must accept such assurances unless there is some reason to call into question the same or unless there is some precise information to suggest that conditions at a specific detention centre where the Respondent is likely to he held, might give rise to a real risk of a breach of Article 3 of the Convention. No such evidence has been adduced and there is therefore no basis for me, acting in accordance with the principles of mutual trust and confidence, to reject the assurances given by the Polish authorities.

67. This ground of objection is therefore dismissed

G. Article 6 & 8 – Family Rights & Delay

68. The respondent objects to his surrender on the grounds that his surrender would lead to a breach of his and his family’s rights under Article 8 of the European Convention on Human Rights, and in this regard cites egregious delay in this case, so as to make the surrender of the respondent disproportionate.

69. The high threshold for such an Article 8 claim to succeed has been repeatedly emphasis in cases such as Minister for Justice v Vestartas [2020] IESC 12 and Minister for Justice v DE [2021] IECA 188.

70. The following are the principles of particular significance to an 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

71. The Respondent in this case failed to return to custody as required on the 12 December 2006 and thereafter left Poland. In July 2014 he was granted Irish citizenship and assumed the name ‘Greg Colton’. An SIS alert issued on the 27 March 2018 in his Polish name ‘Grezgorz Koltun’. He was subsequently arrested on this matter in September 2023.

72. Although there have been delays in this matter, delay per se cannot be a standalone ground for refusal of an otherwise lawful application for surrender on foot of an EAW.

73. The Respondent has referred to the following personal and family circumstances in support of this claim:-

(a) He is married to his wife since 1985 and has been residing with her in Ireland since 2006 with his son Mateusz joining them her in 2008 and now aged 31 lives with him and his wife;

(b) He has a strong work history in the State and has provided supporting documentation;

(c) He is taking medication for hypertension, prostate and reflux conditions

(d) His wife suffers from type 1 diabetes and is under the constant care of doctors in Tallaght Hospital

(e) In July 2014 he took up Irish citizenship adopting a new name, Greg Colton,

(f) He has sought to take steps in Poland to enable him to serve his sentence here

74. It is an inevitable consequence of surrender that there will be disruption, indeed often significant disruption, to family life. Such disruption cannot operate as a bar to the surrender of persons to other EU states by this state in compliance with its obligations under the Framework Decision.

75. Delay of itself can never operate as a bar to surrender but there are circumstances (such as those which arose in Minister for Justice v Palonka [2022] IESC 6) where in the passage of time since the offending in question, there have developed personal or family circumstances such that it would be disproportionate in all the circumstances to surrender a person to another EU state and in those circumstances Article of the ECHR is engaged and surrender might be refused under s. 37 of the 2003 Act.

76. The Respondent in this case was sentenced to a very significant sentence and this is indicative of the fact that the offences in question were very serious indeed. He also was trusted by the Polish authorities and in his ease allowed a measure of temporary release and, in breach of this trust, did not return to continue serving his sentence. He then absconded to Ireland and later became an Irish citizen in a different name.

77. The bar for refusal of surrender in these circumstances is necessarily high and, though exceptionality is not the test, exceptional circumstances need to be shown. Here there will be interference with the family life of this Respondent should he be returned to Poland to serve the balance of this sentence. It is not however a case where, owing to the passage of time, it can be said that family and personal circumstances have developed such that it is one of those rare cases where his surrender would be disproportionate and amount to a breach of his rights under the Convention or the Constitution.

H. Decision on which EAW based

78. The Respondent now argues that a portion of the EAW identifies the wrong enforceable judgment and this amounts to a failure to comply with s. 11 (1A)(e) of the 2003 Act.

79. I agree that this objection is without merit. It is clear from the warrant and additional information what is the enforceable sentence order that it is sought to enforce and what is the balance of that sentence remaining to be served.

80. Even if the warrant should have referred to the Polish court judgment of the 7 October 2003 ( the date when the converted sentence was imposed ) as opposed to the 20 November 2001, the date when the preliminary order was made allowing for the detention of the Respondent following his initial transfer into Poland and pending the conversion of the sentence under Polish law, it would be such a trivial error causing no injustice. It would in such circumstances be a minor error of such a kind as to lead to the application of Section 45C of the 2003 Act.

I. Breach of Article 49 of Charter and Article 7 of Convention

81. He says that the Polish Courts, in converting the sentence to one of 15 years, breached the near identical provisions of Article 7 of the Convention and Article 49 of the EU Charter on Fundamental Rights in imposing a heavier penalty than that which ‘was applicable at the time the criminal offence was committed’.

82. He submits that therefore surrender must be refused under s.37 of the 2003 Act, on the basis that there is a real risk that his rights under the Convention and / or Charter would be breached if surrendered.

83. On the application of both parties this Court adjourned consideration of this matter pending the determination by the CJEU of a referral from the Irish Supreme Court in the case of Minister for Justice v Sean Walsh [ the so called ‘Alchester’ case]. In that case the United Kingdom has sought the surrender of Mr Walsh pursuant to a TCAW which was issued on the 26 November 2021 by a District Judge sitting at Laganside Court, Belfast.

84. Mr Walsh was sought for surrender to Norther Ireland for prosecution for four alleged terrorism offences dating from July of 2020. Three of the offences carried a maximum sentence of life imprisonment with the final one carrying one of 10 years upon conviction.

85. The argument of the Respondent of alleged breach of Article 7 is recorded by Ms Justice Biggs in the High Court as follows:-

‘In essence, the respondent submits that under legislation now in force in the requesting state, persons convicted of terrorism offences are not permitted release under licence at the ‘half way’ point of their sentence, as is the case with all other offenders. This law applies retrospectively, so that the respondent now faces a longer term of imprisonment than he was liable to serve at the time of his alleged offences. The respondent refers to, and relies upon, Nulla poene sine lege in Irish and EU law. As noted, this legislation has been found by the Northern Ireland Court of Appeal to be incompatible with Article 7 ECHR, but it nevertheless remains in force. As the respondent submits surrender of the respondent could give rise to egregious breaches of his rights of his rights under Article 38.1 of the Constitution, under Article 7 of the ECHR and under Article

49 of the EU Charter, this Court has determined to review the relevant caselaw and legislation in relation to both a section 37(1)(a) and 37 (1)(b) challenge.’

86. Mr Justice Biggs rejected this argument, but the Supreme Court granted leave to appeal and ultimately made a number of references to the CJEU who gave the case the title ‘Alchester’.

87. The answer of the CJEU to the most recent question referred in the Alchester case is dispositive of the question raised by the Respondent in this case. At paragraph 20 of the Judgment of the Grand Chamber, dated 3 April 2025 [Case C-734/24 [Alchester II]), the question referred by the Supreme Court is set out:-

‘Would the application, to a person convicted of an offence or offences and sentenced to a determinate sentence(s), of amended rules having the effect that he or she will have to serve at least [two thirds] of such sentence and then will only have a conditional right of release on licence dependant upon assessment of dangerousness, whereas under the rules applicable at the time of the alleged offences, that person would have been automatically entitled as a matter of law to release on licence once he has served [one half] of that sentence, involve the imposition of a ‘heavier penalty’ on the convicted person than the penalty applicable at the time of the alleged offences such as to amount to a breach of Article 49(1) of the Charter’

88. Having confirmed that Article 49(1) of the Charter contains, as the very least, the same guarantees as those provided for in Article 7 of the Convention, the Court then continued:- ‘25. Since the question referred concerns the application of changes to a licence regime to a person who is sentenced to a determinate term of imprisonment for an offence committed before the entry into force of those changes, it must be borne in mind that it follows from the case law of the European Court of Human Rights that, for the purposes of the application of Article 7 ECHR, a distinction must be drawn between a measure that constitutes in substance a ‘penalty’ and a measure that constitutes the ‘execution’ or ‘enforcement’ of the penalty. Thus, where the nature and purpose of a measure relate to the remission of a sentence or a change in the regime for release on licences, this not form part of the ‘penalty’ within the meaning of Article 7 (ECtHR, 21 October 2013, Rio Del Prada v Spain……and judgment of 29 July 2024, Alchester …..).

26. Since the distinction between a measure that constitutes a ‘penalty’ and a measure that concerns the ‘execution’ of a penalty is not always clear-cut in practice, it is necessary, in order to determine whether a measure concerns only the manner of execution of the sentence or, on the contrary, affects its scope, to ascertain in each case what the penalty imposed or incurred actually entailed under domestic law in force at the material time or, in other words, what its intrinsic seriousness was (ECtHR, 21 October 2013, Del Rio Prada v Spain ……paras 85 and 90, and judgment of 29 July 2024, Alchester, C-202/25 [Alchester No 1], paragraph 95)

27. In that regard the European Court of Human Rights has confirmed that the fact that the extension of the eligibility threshold for release on licence after a conviction may have led to the hardening of the detention situation concerned the execution of the sentence and not the sentence itself and that, therefore, it cannot be inferred from such a circumstance that the penalty imposed would be more severe than the one imposed by the trial judge ( ECtHR, 31 August 2021, Devriendt v Belgium…para 29, and Judgment of 29 July 2024 [Alchester No 1] … para 96

28. On the other hand, the European Court of Human Rights has held that the retroactive application of a measure in converting a reducible life sentence to an irreducible life sentence is contrary to Article 7 ( ECtHR, 10 November 2022, Kupinskyy v Ukraine …paras 56 and 64

29. Accordingly, a measure relating to the execution of a sentence will be incompatible with the second sentence of Article 49(1) of the Charter only if it retroactively alters the actual scope of the penalty provided for on the date on which the offence at issue was allegedly committed, thus entailing the imposition of a heavier penalty than the one initially provided for. Although that is not, in any event, the case where that measure merely delays the eligibility threshold for release on licence, position may be different, in particular if the measure essentially repeals the possibility of release on licence or if it forms part of a series of measures which have the effect of increasing the intrinsic seriousness of the sentence initially provided for (judgment of 29 July 2024, C202-24…para 97)

30. It follows from the foregoing that the fact that national legislation provides, in the case of offences committed before its entry into force, for the extension of the part of a prison sentence which must necessarily be served in custody before release on licence cannot, taken in isolation, entail and infringement of the second sentence of Article 49(1) of the Charter’

89. The Applicant has raised preliminary issues which he says prevent the Respondent from raising this issue on the facts of this case.

90. It is not necessary for this court to determine those preliminary issues as, even taking the Respondent’s case at its highest and considering the matter on the basis that owing to the manner in which the Polish sentence in this case of 15 years is executed, the Respondent may spend more time in custody than if the sentence had been executed in the United Kingdom, the Alchester (II) decision is dispositive of any such argument.

91. This is not a case where the execution of the sentence in Poland, even were it to lead to the hardening of the detention situation of Mr Koltun compared to the execution of the same in the UK, retroactively altered the scope of the penalty imposed on him in the United Kingdom for the offences in question in a manner which worsened his situation.

A sentence of 18 years was passed in the UK and this penalty was in fact reduced as a result of it being converted to one of 15 years in Poland.

92. Nor is this a case where the Respondent has adduced evidence to show that his situation comes within that described in paragraph 29 of Alchester No. 2, namely that due to the manner of the execution of the sentence in Poland the ‘intrinsic seriousness’ of the sentence originally imposed in the UK has been increased.

93. This ground of objection is therefore dismissed.

94. In the circumstances, there being no reason to refuse the application by the Minister, I will make an order for the surrender of the Applicant on foot of this EAW.