IEHC 95 — IEHC 95 — High Court

THE HIGH COURT

[2026] IEHC 95

Record No. 2025 No. 136 EXT

BETWEEN

MINISTER FOR JUSTICE

APPLICANT

AND

MICHAL BUCKI

RESPONDENT

JUDGEMENT delivered by Mr Justice Patrick McGrath on the 11 February 2026

A. BACKGROUND

1. A European arrest warrant [‘EAW’], dated the 13 November 2013, seeking the surrender of the Respondent, was issued by Judge Aleksandra Soltyinska, Judge of the District Court in Kracow, Poland, who is a ‘judicial authority’ within the meaning of s.2 of the European Arrest Warrant Act, 2003 [‘the 2003 Act’].

2. The Respondent is sought to serve a sentence of imprisonment of 2 years, a balance of 1 year and 9 months of which remains to be served, imposed in Krakow – Nowa Regional Court, Krakow on 21 February 2006, which sentence became final and enforceable on 1 March 2006.

1 3. The Respondent was arrested on the 21 May 2025 pursuant to an S.I.S alert. The underlying EAW was duly produced on the 23 May 2025 with the application being struck out on that date as it appeared from the face of the warrant that the matter was then statute barred.

4. On the 24 September 2025 the Respondent was arrested on foot of a second warrant which, on its face, indicated that the matter was not statute barred. A number of section 20 requests were thereafter sent seeking further information and, following the receipt of replies thereto, the matter was duly listed for hearing.

5. No issue arises in relation to the following matters which are, in any event, not in dispute between the parties:

(a) No issue is taken in relation to identity, and I am in any event satisfied that the person named in the Warrant is the Respondent; (b) 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’]; (c) The EAW is, so far as is practicable, set out in the form of the Annex to the Framework Decision and the information therein provided meets the requirement of s. 11 of the 2003 Act; (d) The Warrant has been issued by a Judge attached to the District Court in Krakow, a ‘judicial authority’ within the meaning of s. 2 of the 2003 Act;

6. The Respondent has raised the following grounds of objection:- (a) The surrender of the Respondent is precluded as: - The matter before the Court has already been determined by this Court and the issue is therefore subject to Res Judicata and / or Issue Estoppel; - This second attempt to seek his surrender constitutes a collateral attack on the Court’s earlier Judgment; and / or - In circumstances where his surrender was previously refused, these later proceedings amount to an abuse of process.

2 (b) There has been a failure on the part of the Polish State to comply with the requirements of s. 45 of the 2003 Act and / or the rights of the defendant were not upheld in the process which led to the imposition of the sentence for which his surrender is now sought;

(c) The surrender of the Respondent would, in all the circumstances including the passage of time since the commission of the offence and the change and development of his family and personal life in the intervening time, amount to an abuse of process and / or breach of his rights under Article 8 of the European Convention on Human Rights.

B. PRECLUSION

7. There is a somewhat unusual background to this matter. In the earlier proceedings the Respondent was, on 21 May 2025, arrested on foot of an SIS alert issued in respect of this matter. The relevant European Arrest Warrant, dated 13 November 2013, was as required under the Framework Decision, produced but this indicated on its face that the execution of the relevant sentence was statute barred in Poland from 1 March 2021. In those circumstances, it being clear from the face of the EAW that the time for the execution of the sentence had passed, this Court dismissed the application and discharged the Respondent from the proceedings.

8. A second EAW, also dated 13 November 2013 but modified on 5 June 2025 to reflect the true position as to the application of the Statute of Limitations, was thereafter sent by the Judicial Authority and, following endorsement by this Court, the Respondent was arrested thereon on 24 September 2025.

9. At Paragraph F of this modified EAW the following is now stated in relation to the application of the Statute of Limitations in Poland:-

‘Pursuant to Art. 103.1.2 of the Criminal Code, the statute of limitation for enforcement of a custodial sentence for a term below five years is fifteen (15) years from the date it comes into force. Here, the sentence would have become limited by time on 1 March 2021. However, an order to suspend the 3 enforcement proceedings stops the period of limitations for ten (10) years. Here, a suspension order was issued on 23 May 2011 so the sentence will no longer be enforceable after 1 March 2031’

10. The Respondent submits that, in the particular circumstances of this case, surrender is precluded on this new EAW either because of (a) issue estoppel or (b) the acquisition by the Respondent of a vested right as a result of the decision of this Court in relation to the earlier EAW in February of this year.

11. The Respondent here refers to the following factors:- a. The issuing state did not seek to withdraw the first warrant; b. The decision of the Court refusing surrender on the first warrant was substantive and not technical in nature and within jurisdiction; c. The earlier decision was not appealed; d. The parties to both sets of proceedings are the same; and e. The offences remain the same.

12. The Respondent further refers to the failure of the IJA to update this State, the SIS or Interpol that the applicable Statute of Limitations for these offences had been altered by the decision of the Polish Court on 23 May 2011.

13. The Applicant says that the new warrant is in substance the same as the first one, in that it is stated to have been issued on the same date as the earlier warrant and seeks the surrender of the Respondent to serve the same sentence. He submits that the second warrant is, however different from the first warrant in that it was modified on 5 June 2025 to reflect the fact that the limitation period applicable in this case for the enforcement of the sentence had previously in 2011 been extended to 1 March 2031. This information was erroneously not included in the First EAW.

14. The Applicant states that no substantive hearing took place in relation to the previous Warrant and the Respondent was discharged therefrom on the basis that it was, wrongly as it turned out, indicated therein that the Statute of Limitations in this case had expired on 1 March 2021.

4 15. The Minister submits that this is not a case where the proceedings here represent an attempt by the Applicant to re-argue the same substantive issue upon which surrender was refused.

16. This issue is one recently considered by this Court in the case of Minister for Justice v Cup [2025] IEHC 753.

17. In Cup, as here, a first EAW had been sent to Ireland by a Polish IJA seeking the surrender of the respondent to serve a sentence imposed by a Polish Court. As in this case, based on the information set out in the body of the First EAW, the sentence could no longer be enforced in Poland owing to the operation of the Statute of Limitations in that State. In those circumstances the Court in Cup had, without entering into any substantive hearing, dismissed the application for surrender on the First EAW as it was clear from the face of the warrant that the serving of the sentence in question was statute barred by operation of the law of Poland. A similar decision was made by this Court when the first Warrant was presented in this case.

18. In Cup, as here, the information in relation to the application of the Statute of Limitations had been wrongly set out in the first Warrant. In that case, similarly to this case, the Statute of Limitations had, long before the arrest of the Respondent, been extended.

19. In Cup, as here, a second EAW was subsequently sent seeking the surrender of the Respondent to serve the same sentence described in the First EAW. As in this case the Second EAW correctly stated the legal position in Poland. It was similarly clear from the body of the Second EAW in Cup that, owing to the operation of Polish law, the limitation period had been extended, and the serving of the sentence was not statute barred.

20. In Cup the Respondent advanced the same arguments as are advanced in this case and these were dismissed. Having reviewed the leading authorities on this issue (including Minister for Justice v Klubikowski [2021] IEHC 292, Minister for Justice v Leopold [2020] IEHC 84 and Minister for Justice v Fassih, [2022] IESC 10) I summarised the relevant principles at paragraph 37 of my judgment in Cup as follows:- 5 ‘(i) The principle of res judicata does not apply in the context of EAW proceedings, in the sense that a refusal to surrender on an earlier warrant does not preclude consideration by the Court of a subsequent application(s) on later warrants;

(ii) As a matter of EU law several EAWs may be issued in relation to the same matters against the same person and each must be separately considered by the executing authority;

(iii) 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;

(iv) Issue estoppel may however arise in the context of EAW proceedings in the absence of a change in the legal or factual circumstances that were considered in previous EAW proceedings seeking surrender of the same person for the same offence;

(v) 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;

(vi) 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 when considering a subsequent application for surrender;

(vii) Whilst the issuance of several EAWs seeking the surrender of the same individual in relation to the same matter is permitted, it may in exceptional circumstances amount to an abuse of the process of this Court.’

6 21. In this case the Respondent, as in Cup, seeks to take advantage of what I am satisfied was an error on the part of the IJA when setting out the applicable period of the Statute of Limitations in the First EAW.

22. When the First EAW in this case was presented to the Court earlier this year, there was no basis then to maintain the proceedings against the Respondent as it was stated thereon that the relevant period within which the underlying sentence could be enforced in Poland had ended by operation of the Statute of Limitations in that State.

23. Due to an error on the part of the Polish authorities, the First EAW indicated that the Statute of Limitations in relation to the offence underlying that warrant had already expired on the 1 March 2021. On the basis of what was set out on the face of that First EAW, there was no basis to maintain those EAW proceedings, and the application was dismissed.

24. A fresh EAW has now issued and the correct date for the application of the Statute of Limitations to this case is now set out therein. On the basis of what is now said on the face of this Second EAW, the limitation period for the enforcement of the relevant sentence in Poland has not expired.

25. The Respondent submits that the ruling of the Court, which was given ex tempore and without the benefit of detailed written submissions, was made on an issue of substance and not, so to speak, in relation to a technical matter relating to the Warrant. He therefore submits that, consistent with the reasoning of Donnelly J in Leopold and Burns J in Klibukowski this issue cannot be revisited owing to the operation of the principles of issue estoppel or the acquisition by the respondent of an accrued right.

26. A second EAW seeking the same individual in relation to the same matter has now been presented to the Court for execution. The correct factual and legal position in relation to the application of the Statute of Limitations is now set out in the Second EAW, namely that by operation of Polish law, a Court had prior to the sending of the First EAW extended the limitation period up to 1 March 2031 as the Respondent was at that time a fugitive and the sentence could not therefore be enforced.

7 27. Although it is unfortunate that this error was made in the First EAW and may even point to some incompetence on the part of the requesting state, I am satisfied that the true legal and factual position as to the application of the Statute of Limitations is now set out in the Second EAW and that, as a matter of law and fact, the limitation period for the enforcement of the underlying sentence does not expire until 1 March 2031.

28. In her Judgment in Fassih (op. cit.), O’Malley J stated that in considering the question of whether an issue estoppel might arise as a result of an earlier decision on a previous EAW, a distinction between technical and substantive issues might not be particularly helpful. She then went on to say that a conclusive ruling on a legal issue that is not specific to the terms of the individual warrant before the court, in the absence of any material change to the law, made in an earlier EAW could in principle be binding on the parties. She also stated that refusal to surrender based ‘on a factual situation that will not change (for example, in relation to the age of criminal responsibility) could be binding’ before making it clear that 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’.

29. A second warrant has been presented, and the Court is obliged to fully consider any issues that might arise on foot of what is set out in the body of that EAW. The factual circumstances set out in the Second EAW are different from those in the First EAW insofar as it concerns the application of the Polish Statute of Limitations to the offence for which surrender is sought. There was no decision on any legal issue in the First EAW application which went beyond anything specific to the terms of that first EAW.

30. Applying the principles set out by O’Malley J in Fassih, this is not a case where the refusal of the Court to order surrender on the First EAW, based solely upon the information set out in that First EAW as to the application of the Statute of Limitations in Poland to this respondent in this case, gives rise to any issue estoppel or accrued right of the kind described by O’Donnell J in Tobin.

31. I am therefore of the view that this Court is not precluded from entering into a consideration of this EAW as a result of the ruling made in respect of the First EAW. 8 I do not consider that the respondent is entitled to the benefit of that ruling by way of an issue estoppel or accrued right.

C. ABUSE OF PROCESS/DELAY/ARTICLE 8

32. In the present case the Respondent points to what he says are ‘myriad factors’ which point to the refusal of surrender, including the following:- (a) The Respondent was 19 years old at the time of the offence; (b) A suspended sentence was originally passed; (c) There is a passage of time of almost 20 years between the offences, convictions and now; (d) The IJA was aware that the Respondent may have been in Ireland since 2011; (e) This is a second EAW; (f) Refusal to surrender on the First EAW was due to the failure of the IJA to accurately set out the operative date of the Statute of Limitations on the face of the First EAW; (g) The IJA has failed to comply with Article 4 of the Framework Decision; (h) The offence is not in the most serious category of offending; (i) The Respondent has been in Ireland since 2007 and has a good work history and family life here.

33. The Respondent says that when he was young, he got into trouble in Poland when he associated with the wrong people in the estate where he then lived with his mother and father.

34. The Respondent states that he came to Ireland in 2007 and no longer has any real connection with Poland and that his entire life is here in Ireland. He is in a relationship with his current partner for the last 9 years and they have a seven-year-old child who now attends a local school. He lives in a family unit with his partner, their seven-year-old child and his partner’s 18-year-old son from a previous relationship.

35. He has been employed by the same company in Cootehill for the last 7 years and previously worked in other jobs since coming to Ireland. He has had a PPS number since 2007.

9 36. The Respondent submits that, looking cumulatively at the facts and circumstances of this case, the Court ought to refuse surrender as the application constitutes an abuse of the processes of this Court or an unacceptable breach of his rights under Article 8 of the ECHR. The Respondent is making a conjoined Abuse of Process/Delay/Article 8 objection to his surrender.

37. 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 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 ‘

38. It is now well-settled law that there is no bar on the Minister seeking surrender on foot of a second EAW. The Framework Decision does not preclude the issuing of several successive warrants against a requested person after the execution of a previous EAW has been refused by a member state, provided that the execution of the new EAW does not 10 infringe Article 1(3) of the Framework Decision and the issuing of the later warrant is proportionate [Case C – 158/2021 Puig Gordi & Ors].

39. Unlike the factual situation in Minister for Justice v Palonka [2022] IESC 6, the Respondent himself bears a considerable degree of responsibility for any delays that have arisen. The delay in this case has largely arisen as a result of the Respondent repeatedly failing to attend court in 2007 and 2008 in Poland in relation to the cases being then processed in the courts in that State and thereafter, aware there were ongoing proceedings in Poland against him in Poland, leaving that State and moving to Ireland without making any attempt whatsoever to deal with those matters. The IJA have indicated that, having become aware in 2011 that he was residing in England or Ireland, an EAW was issued in May 2011 in Krakow, but it was not until May 2025 that the IJA was informed that he had been apprehended in Ireland.

40. The case is indeed of some antiquity, but it is now well-settled law that delay of itself can never amount to a ground for refusal of surrender. In any event, as noted above, the Respondent himself is largely responsible for any delay that has arisen.

41. There is no suggestion of any mala fides or improper behaviour on the part of the Polish authorities in seeking the surrender of the Respondent. At most there may have been some confusion or incompetence or lack of care on the part of the IJA which led to an error in the First EAW concerning the application of the Statute of Limitations to the facts of this case.

42. It is also of some significance that there was no delay between the failure of the application for surrender on the First EAW and the issuance of the Second EAW.

43. 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. This state has an obligation to give effect to its obligations under international agreements, including the Framework Decision.

11 44. The complaint of the Respondent in relation to abuse of process is in reality founded on delay. As has been frequently pointed out in decisions of the Superior Courts in this jurisdiction, delay in and of itself can never be a bar to surrender.

45. The Respondent, however suggests that this is a case where, whether considered under the rubric of abuse of process or Article 8 of the Convention, surrender ought to be refused to surrender him now would result in an impermissible and disproportionate breach of his family rights. As has been repeatedly stated in these Courts, some interference with family life is an almost inevitable consequence of surrender or extradition. Interference, even substantial interference, with family life does not of itself give rise to a situation where surrender ought to be refused on the grounds that it would result in a breach of Article 8 of the ECHR. Although there has been a considerable lapse of time since the commission of the offences in question here and although the Respondent has built a family life in the last number of years in the Cavan area, it is not one of those rare cases where the passage of time has led (as in Palonka) to the emergence of such personal and family circumstances such as to engage Article 8 of the Convention.

46. Furthermore, I do not consider that this is one of those rare cases where this court ought to refuse surrender on the grounds that, for the reasons advanced by the Respondent, it has been demonstrated that his surrender would not amount to an abuse of the processes of this Court.

D. COMPLIANCE WITH REQUIREMENTS OF S. 45 OF THE 2003 ACT

47. The Respondent submits that the process in Poland which led to the imposition of the and/or activation of the sentence for which surrender is now sought does not meet the requirements of s. 45 of the 2003 Act and/or there was a failure to uphold the defence rights of the Respondent during that process.

48. From the body of the Warrant itself and the further information received from the IJA in response to requests issued by this Court under s. 20 of the 2003 Act, the following are the facts of particular relevance to this issue:-

12 a. The Respondent appeared in person at his trial in 2006 in Krakow, which resulted in his conviction and sentence for the offence in respect of which his surrender is now sought [Case Ref: K/216/06/N] (‘the primary offence’). Following his conviction of the primary offence the Polish Court, on 21 February 2006, imposed a sentence of two years imprisonment, suspended for a five year probation period. This is referred in the warrant at Paragraph D as the ‘trial resulting in the decision’;

b. The Respondent was subsequently found guilty of an offence of Property Damage [Case Ref: II K 1689/06/N] (‘the triggering offence’), committed during the probationary period of 5 years in respect of the primary offence referred to in the previous paragraph. A sentence of one year’s imprisonment, conditionally suspended for five years was imposed for this triggering offence;

c. The Court hearings in respect of the triggering offence were conducted between 17 November 2006, when the first hearing took place, and 13 April 2007 when he was sentenced for that offence;

d. The Respondent attended at the first hearing of Case Ref II K1689/06/N, the case involving the triggering offence, on 17 November 2006. He failed to appear at the following hearing of that matter on 4 December 2006, despite having been personally served with notice of that date at the first hearing. The matter was adjourned on that December 2006 date in order to seek to secure his further attendance. He was subsequently present on 29 January 2007, when the trial in relation to the triggering offence was opened and he was heard. At that hearing he was again personally informed of the next date but failed to attend on that next date. The case was then again adjourned to secure his attendance and, having failed to secure his attendance when the matter was first re-listed on 5 March 2007, it was once again adjourned. On the next adjourned date, 13 April 2007, judgment was given in his absence. He had in the meantime been served notice by post of those two adjourned dates but nonetheless failed to appear;

13 e. The conditionally suspended prison term imposed in respect of the main offence was, following his conviction and sentence for the triggering offence which had been committed within the 5-year probationary period imposed in respect of the main offence, later activated at a Court hearing on 2 October 2007 [Case Ref: Ko 2476/07/N] (‘the activation hearing’). The Respondent was not present at that activation hearing;

f. The IJA confirmed that, at the activation hearing of 2 October 2007, the Court could not as a matter of law change the ‘type of length of the sentence imposed in case II K 1689/06/N’

49. It is clear that the domestic ‘trial resulting in the decision’ which leads to the issuance of any EAW must comply with the requirements of Article 4 of the Framework Decision and / or Article 6 of the ECHR. There have however been a number of decisions of both the Irish Courts and the CJEU which have considered the question of whether, or in what circumstances, the activation of a suspended sentence might be considered as part of the ‘trial resulting in the decision’ within the meaning of Article 4(6) of the Framework Decision and in what circumstances the non-attendance of a defendant at such activation hearing might give rise to issues under Article 4 of the Framework Decision and / or Article 6 of the European Convention on Human Rights.

50. The following principles of law have emerged from the case law of the CJEU on this topic:-

a. The ‘trial resulting in the decision’, as used in Article 4a of the Framework Decision, is a concept which has an autonomous and uniform interpretation and meaning throughout the Union – Ardic [Case C-517/17 PPU];

b. For the purposes of Article 4a of the Framework Decision, the activation of a previously suspended sentence will ordinarily not be considered part of ‘the trial resulting in the decision’;

c. In cases where an activation hearing takes place in the absence of a Respondent (or without him receiving due notification of the same) surrender 14 is the rule and the question is whether or not an individual respondent can bring himself within some exception to that rule;

d. The fact that a Court, when considering whether to activate a suspended sentence enjoys a margin of discretion such that it might not activate a suspended sentence at all or activate it in whole or in part, does not alter the nature of such a hearing and does not mean that such a hearing is a ‘trial resulting in the decision’ and therefore one to which the requirements under Article 4a of the Framework Decision and Article 6 of the ECHR apply. In other words, as made clear at paragraph 80 of Ardic and reaffirmed at paragraph 54 of LU & PH [Cases C-514/21 and C-515/21], there is no requirement that a respondent be present at or have notification of such a hearing under Article 4a of the Framework Decision as it is not a ‘trial resulting in the decision’;

e. Where a Court can modify the quantum or nature of the penalty imposed, for example Gurgiudiani v Spain [ECtHR 15 December 2009] (where a new penalty was imposed at this further hearing), Ezeh & Connors v United Kingdom [ECtHR 9 October 2009] (where an increased period of detention was imposed following the later hearing) or Zdziaszek Case C – 271/17] (where a new cumulative sentence was imposed at a further hearing), then such further hearing is part of ‘the trial resulting in the decision’ as the nature or quantum of the penalty imposed has been or may be modified and the requirements of Article 6 of the ECHR and Article 4a of the Framework Decision apply to such a hearing;

f. Where the suspended sentence originally imposed is or may be activated as a result of a further offence (‘the triggering offence’) then the respondent must have been present or have had proper notification of the hearing of the triggering offence. In other words, the fair trial rights guaranteed under Article 6(1) of the ECHR and the requirements of Article 4a of the Framework Decision must be met in relation to this triggering offence and if this did not happen then surrender may be refused.

15 51. Here the Respondent claims that he ought not to be surrendered as the processes which led to the imposition and / or activation of the sentence for which his surrender is now sought failed to meet the requirements of s. 45 of the 2003 Act and / or Article 4a of the Framework Decision. This claim is made on the basis that part(s) of the ‘trial resulting in the decision’ in relation to this process was conducted in his absence and in circumstances where there was a failure at such part(s) of the process to meet the requirements of Article 4a of the Framework Decision or otherwise uphold his defence rights.

52. The Respondent was present at all relevant hearings which led to his original conviction and sentence for the main offence. This case [Case Ref: K/216/06/N] concluded with the imposition of a 2-year prison sentence, suspended for a period of 5 years, on 21 February 2006. There is no question of any breach of the requirements of Article 4 of the Framework Decision and / or s. 45 of the 2003 Act in respect of that process as he was during that process present at the ‘trial resulting in the decision’.

53. The Respondent was not present at the activation hearing of 2 October 2007 [Case Ref: K 2746/07/N], when the two-year sentence imposed in respect of the main offence was activated. Nor is there any evidence to suggest that he was properly notified of this activation hearing. His absence at that hearing and / or the failure to properly notify him of that hearing clearly does not of itself amount to a breach of s. 45 of the 2003 Act and / or Article 4 of the Framework Decision. This is so as this hearing merely involved the activation of a sentence previously imposed in Case Ref: K/216/06/N, in circumstances where the Court at the activation hearing did not (and could not as a matter of law) modify the nature and quantum of the penalty imposed on 21 February 2006 for the main offence.

54. In this case, however, the activation of the suspended sentence resulted from the commission by the Respondent of a triggering offence during the relevant 5-year probationary period imposed in Case Ref: K/216/06/N. In these circumstances, consistent with the Judgment of the CJEU in LU & PH, this Court must be satisfied that the process which led to his conviction and sentence in respect of that triggering offence K/1689/06/N was carried out in a manner which met the terms of s. 45 of the 16 2003 Act and / or Article 4 of the Framework Decision or was otherwise conducted in a manner which respected the rights of Respondent as guaranteed under Article 6 of the ECHR.

55. In so far as the triggering offence is concerned, it is conceded by the Minister that the Respondent was not present at all parts of the ‘trial resulting in the decision’ in that case and furthermore that none of the options set out in the Table attached to s. 45 of the 2003 Act (which list circumstances in which the requirements of Article 4 are met despite the non-attendance of a person at a ‘trial resulting in the decision’) are met or available on the facts of this case.

56. The Minister however correctly states that this is not the end of the matter as, following on from the decision of the Supreme Court in Minister for Justice v Zaranescu [2020] IESC 59, this Court must now go on to consider whether, in all the circumstances of this case, the defence rights of the Respondent were nonetheless upheld in the process that led to his conviction and sentence for this triggering offence.

57. The Supreme Court in Zarnescu. having reviewed the jurisprudence of the CJEU, distilled a number of principles labelled (a) to (r) below:-

‘(a) The return of a person tried in absentia is permitted; (b) Article 4(6) of the 2002 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 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;

17 (f) The requested state has a margin of discretion in how it approaches the facts, and whether to refuse return; (g) 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; (h) 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; (i) Proof of service on a family member is not sufficient extrinsic evidence of that knowledge; (j) The assessment is made on the individual facts but there must be actual knowledge by the requested person; (k) Whether actual knowledge existed is a matter of fact and can be shown from extrinsic evidence; (l) 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; (m) 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; (n) 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; (o) 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; (p) 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;

18 (q) 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; (r) 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.’

58. At paragraph 63 of her Judgement 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 non-attendance, 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.’

59. The Court of Appeal in Szamota, having considered Zarnescu in light of subsequent judgments of the CJEU, confirmed that a relatively broad approach should be taken to waiver, subject to the rights of the defence. At paragraphs 28 and 29 of the Judgment of the Court, Collins J. stated:-

‘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’ (my emphasis). 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 19 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 11 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 19 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.’

60. In Minister for Justice v Szlachcikowski [2024] IECA 2024, the Court of Appeal considered Zarnescu, and Szamota and the later decision of the UK Supreme Court in Bertino v Public Prosecutor’s Office Italy [2024] UKSC 9, in the context of a case where on the facts it had been established that there had been a ‘manifest lack of diligence’ by the Respondent but there was no evidence from which the Court was able to conclude, whether directly or by inference, that he was aware of the consequences of non-attendance, namely the possibility that the trial might proceed in his absence.

20 61. That 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).

62. 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.’

63. Having agreed that the jurisprudence of the European Court of Human Rights had been correctly interpreted by the UK Supreme Court, the Court of Appeal observed that:

‘… 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).

64. Having agreed with the conclusion of the High Court (Stack J.) that on the facts of that case that there was no evidence of the respondent having reasonably foreseen the consequences of non-attendance, Edwards J 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)

65. Having regard therefore to the decision of the Supreme Court in Minister for Justice v Zarnescu [2020] IESC 59 and the decisions of the Court of Appeal in The Minister for Justice v Szamota [2023] IECA 143 and Minister for Justice v Szlachcikowski [2024]

21 IECA 2024, it is clear while it must be shown that a respondent was aware of the consequences of non-attendance, there is no absolute requirement for evidence that the Respondent was so informed. It is sufficient that his requirement can be established by other means.

66. In the present case I am satisfied that the evidence establishes that the defence rights of the Respondent were upheld in the course of hearing and determination of the proceedings in respect of the triggering offence [ Case Ref: K II 1689/06/N]. The evidence establishes:-

a. The Respondent attended at the first hearing of this case on 17 November 2006;

b. Despite having been, on that date, personally informed of the next hearing date he failed to attend on the next date the matter was listed being 4 December 2006;

c. The matter was adjourned in order to secure his attendance and he again attended on 29 January 2007, when the trial of this triggering offence was opened and he was heard thereon;

d. Despite having been personally informed on that date of the next date when the matter was next listed, he failed to attend at that later date. The case was once again adjourned on 4 March 2007 to try to secure his attendance as once again he had not attended on that date. He again failed to attend on the 13 of April 2007, the date to which the matter had again been adjourned, and on this date the Court proceeded to conclude the case and impose sentence in his absence; and

e. He had been served by post with notice of the latter two dates in March and April 2007.

67. From the evidence adduced in this case, it is clear that the Respondent was at all times aware of these proceedings and of his obligation to attend at the various dates when 22 the matter was listed for hearing. He attended at some dates and was personally informed of the following dates to which the matter was adjourned on each occasion he attended. He participated on various hearing dates, and I note in this regard that he was specifically heard in the matter on 29 January 2007 after the trial had opened.

68. This is a case where in my view the accused, aware of these ongoing proceedings, chose not to attend at later hearings which he knew were to take place in relation to this matter. He waived his right to attend at these hearings, and it is inconceivable that, having been present at some of the hearings, he would not have been aware that should he not attend at the continued hearing of this matter, that the case might proceed in his absence.

69. I am therefore satisfied from all the evidence in this case that, aware of his obligations to attend upon the dates to which the hearing of the case involving this triggering offence had been adjourned, he himself decided or chose not to attend upon those adjourned dates. I am further satisfied that he did this fully aware of the possible consequences of his non-attendance on such later dates.

70. His rights of defence were in my view fully upheld in the course of the proceedings concerning the triggering offence.

71. Having reached this conclusion in relation to Case Ref: II K 1689/06/D, I am satisfied that there is no reason why the court ought to refuse to surrender the Respondent on the basis of a failure of the issuing state, in the course of the relevant court processes in Poland, to comply with Article 4 of the Framework Decision and / or Section 45 of the 2003 Act.

72. This ground of objection is therefore dismissed.

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

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