Minister For Justice v Cup (Approved) [2025] IEHC 753 (19 December 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister For Justice v Cup (Approved) [2025] IEHC 753 (19 December 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC753.html Cite as: [2025] IEHC 753 [ New search ] [ Printable PDF version ] [ Help ] THE HIGH COURT [2025] IEHC 753 Record No. 2025 No. 61 EXT BETWEEN MINISTER FOR JUSTICE APPLICANT AND ROBERT CUP RESPONDENT JUDGEMENT delivered by Mr Justice Patrick McGrath on 19 December 2025 A. BACKGROUND 1. A European arrest warrant ['EAW'], dated the 14 December 2024, was issued by Judge Aleksandra Soltyinska, Judge of the District Court in Kraków, Poland, who is a 'judicial authority' within the meaning of s. 2 of the European Arrest Warrant Act, 2003 ['the 2003 Act']. The Warrant was modified on the 13 March 2025 and the Respondent was thereafter arrested on the 10 April 2025. 2. No issue is taken as to identity, and I am in any event satisfied that the Respondent is the person named in the Warrant. 3. I am satisfied none of the issues referred to in ss. 22, 23 or 24 of the 2003 Act arise for consideration and surrender is not precluded for any of the reasons set out therein. 4. This EAW was issued for the purposes of enforcing an aggregate sentence of imprisonment of two years, the portion of which remains to be served being 1 year, 8 months and 6 days. The decision upon which the EAW is based is a judgement issued at Srodmiescie Regional Court, Kraków on the 18 June 2003 which was upheld by an Appeal Court on the 16 July 2004, on which date it became final and binding. 5. Two s. 20 requests were sent to the Issuing Judicial Authority seeking additional information on 2 May 2025 and 9 June 2025. Their replies were received on 5 May 2025 and 23 June 2025 respectively. 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; - The earlier judgement in relation to this matter of 21 February 2025 has created a right for the Respondent; - This second attempt to seek his surrender constitutes a collateral attack on the Court's earlier Judgment of 21 February 2025; and / or - In circumstances where his surrender was previously refused, these later proceedings amount to an abuse of process. (b) The EAW fails to disclose an enforceable judgment and thereby does not comply with the requirements of s. 11(1A)(e) of the 2003 Act; (c) The enforceability of the sentence for which surrender is sought is statute barred under the law of the Requesting State; (d) There is an impermissible lack of clarity or ambiguity in relation to the penalty imposed and / or for which surrender is sought and the Warrant therefore fails to comply with the requirements of s. 11 (1A)(g)(iii) of the 2003 Act; (e) There has been a manifest error by the Requesting State in certifying that the offences in relation to which surrender is sought are ones which fall within Article 2.2 of the Framework Decision and / or the offences disclosed and not ones which correspond to offences in Irish Law; (f) His surrender would constitute a disproportionate interference with his family rights under the Constitution and/or Article 8 of the European Convention on Human Rights and surrender should be refused under s. 37 of the 2003 Act. B. PRECLUSION 7. There is a somewhat unusual background to this matter. A previous EAW [ 'the first EAW' ] seeking his surrender for these matters had been endorsed by the High Court on 1 February 2016. The Respondent was arrested thereon on 21 February 2025 and produced before the Court on that date. 8. In the first EAW it was indicated that that the Statute of Limitations in Poland for the enforcement of the applicable sentence for which surrender was sought had expired on 16 July 2019. The Minister had asked that the IJA should be requested to confirm that the position set out on the face of that EAW as to the expiry of Statute of Limitations in Poland was correct. The Respondent, relying on the comments of Mr Justice Collins in the Court of Appeal at paragraph 10 of his judgement in Minister for Justice v Siklosi [2023] IECA 142 , submitted that in the absence of any suggestion that the Warrant did not set out the position correctly (and there was none offered), there was no good reason to go behind what was stated in the EAW on this issue. The court agreed with the Respondent and, as it was clear from the face of the first EAW that the enforcement of the sentence in question was by that time statute barred, refused the application and discharged Mr Cup from those proceedings. This ruling was made ex tempore. 9. Following the discharge of the Respondent from the first EAW, the IJA issued a fresh warrant [' the second EAW' ] which was received by the Central Authority on 13 March 2025. This warrant, which is the one under consideration in these proceedings, was endorsed by the High Court on 18 March 2025 and the Respondent was arrested thereon on 10 April 2025. 10. As a result of additional information received from the IJA on 5 May 2025, it was further established that the first EAW had been previously forwarded to the Central Authority in Ireland on 22 October 2010 and the Respondent was arrested thereon on the 4 April 2011. Having been released on bail, he subsequently absconded to the United Kingdom but attempts to arrest him there proved unsuccessful. The warrant was subsequently again transmitted due to a 'renewed possibility of establishing his whereabouts in Ireland' but the Respondent was not arrested and remained at large until the 11 February 2025. 11. The current warrant is in substance the same as the first warrant in that:- a. It is stated to have issued on the same date, 14 December 2004, as the earlier one; and b. The Respondent is sought to serve the same sentence of imprisonment in both warrants. 12. This warrant is however different from the first EAW as, firstly it was modified on 5 March 2025 to indicate that the Statute of Limitations in respect of the enforcement of the sentence was extended to 16 July 2029. In Part F of the EAW this modification is explained by reference to the ' requested person's continued fugivity ' as a result of which 'a decision was made to suspend the enforcement proceedings, which results in the interruption of the statute of limitations for a period of 10 years. Consequently, the enforcement of the sentence will not be possible after 16 July 2029' This decision to interrupt the running of the Statute of Limitations had in fact been made on 16 December 2015 by the Kraków Srodmiescie Regional Court, Fourteenth Division. 13. 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. 14. 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. 15. 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 16 December 2015. 16. 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,14 December 2004, and seeks the surrender of the Respondent to serve the same sentence. He submits that the second warrant is however materially different from the first warrant in that it was modified on 5 March 2025 to reflect the fact that the limitation period applicable in this case for the enforcement of the sentence had previously in 2015 been extended to the 16 July 2029. This information was erroneously not included in the First EAW. 17. 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 16 July 2019. 18. The Applicant submits the issue of estoppel and accrued right, as asserted by the Respondent, would only arise in the context of a 'final judicial determination on a substantive issue, as opposed to a technical issue or alleged defect in the warrant...' [ Minister for Justice v Bailey (No. 2) (2020) IEHC 528 ]. That does not arise here as no argument took place in Court on 21 February 2025 in relation to any substantive issues and nor was any judgment delivered. 19. 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. Decision on Preclusion and Issue Estoppel 20. The principle of res judicata does not apply to extradition applications in the sense that a prior refusal of surrender, absent abuse of process, does not per se preclude an application for surrender pursuant to a new arrest warrant. This was again confirmed by Burns J in Minister for Justice v Klubikowski [2021] IEHC 292 when he stated as follows at paragraph 16 of his judgment: 'It is, by now, well established law in this jurisdiction that the principle of res judicata does not apply to proceedings seeking extradition or surrender. The refusal of a court to surrender on foot of a warrant is not of itself a bar to a subsequent request for surrender on a fresh warrant.....' 21. Furthermore, it is settled EU Law that in principle several EAWs may be issued successively against the same requested person. 22. Reference was also made in the submissions of the parties to the judgments of Donnelly J in Minister for Justice v Leopold [2020] IEHC 84 and Burns J in Minister for Justice v Klubikowski [2021] IEHC 292 . The general legal principles in relation to res judicata and issue estoppel in EAW proceedings, as subsequently summarised by O'Malley J. in Minister for Justice v Fassih , [2022] IESC 10 , were referred to in both judgments. Of particular interest, however, was the application of these general principles to the facts and circumstances under consideration in each case. 23. In Leopold, the Court was considering an application for surrender to Poland in circumstances where over the previous 10 years, that state had sought the surrender of the Respondent on several different matters on seven occasions. Of relevance to the questions under consideration there was the courts consideration of the submission that the High Court was then bound by an earlier finding of Edwards J in a previous application that the surrender of Mr Leopold could only be ordered for one of the six offences in the EAW then under consideration by Donnelly J. 24. Having set out the general principles applicable, Donnelly J stated as follows as paragraph 30: 'In respect of the question of whether an issue estoppel arises in the present case, its important to note that the earlier decision of Edwards J was a reasoned decision of the High Court in respect of the issue of correspondence of offences, His Judgment, although ex tempore, had been given the following day after it appears, significant legal argument which spanned over two days. The judge made the decision within jurisdiction and while he may or may not have been correct or incorrect in that decision, it was one which affected the parties. The Minister never appealed that decision. It should also be noted that the decision was one made between the same parties i.e. the Minister and the Respondent, and both parties had the opportunity to deal with the matter in terms of the facts and the law. I should also note that it has not been opened to me that the law on correspondence of offences has changed in the intervening time, although even if it had that would have invoked a different argument based on the reasoning of two of the five Supreme Court judges in Tobin. I should also add that the issue of whether offences correspond to offences in this jurisdiction are matters which require a deep consideration of the ingredients of criminal offences in this jurisdiction when compared with the facts that are set out on the warrant requesting surrender. A decision on correspondence goes to the heart of whether surrender / extradition is permitted. It is not a technical issue of the type which had resulted in the District Court refusing the extradition in Bolger, by way of example. It is also important in that respect, that EAW 7 ( the present EAW) does not 'correct' any defect in the original warrant. There is no new information provided to this Court. It is the same request being repeated in exactly the same manner. This Court is being asked to decide exactly the same issue on the same facts, i.e. is there correspondence of offences? The Minister seeks to argue that at least another offence should be considered for the purpose of making a decision as to whether there is actually correspondence of an offence. In so far as we are considering whether there is an issue estoppel, the situation is therefore, that all factors and all parties are the same, save that the Minister wants to put forward a new offence for consideration by the High Court, that is a new legal argument for consideration. The Minister makes this request, but the Minister also makes a request to this Court to carry out its own assessment of correspondence with regard to the full panoply of offence which could be covered, including those considered by Edwards J but rejected by him' 25. In those circumstances, Donnelly J found that she was bound by the previous decision of the High Court in so far as there was an issue estoppel as regards correspondence as to five of the offences - namely the ones where Edwards J had previously determined there was no correspondence. 26. In Klibukowski the High Court had previously refused to order the surrender of the Respondent to Poland for an offence of drug dealing, contrary to the Polish Criminal Code. In the first EAW in that case the illegal drugs concerned were described in the English version as 'hemp other than textile crops.' Donnelly J held that surrender could not be ordered for that offence as correspondence could not be shown as it was not an offence under Irish law to cultivate hemp. 27. A second EAW issued and this time the drugs concerned were described as cannabis and Burns J held that, on the basis of what was now set out in the translated version of the Second EAW, correspondence was clearly shown. The question, therefore, in the words of Burns J, was 'what is the significance, if any, of the earlier decision of Donnelly J on the matter.' 28. At paragraph 21 of his judgment, Burns J stated: 'In the proceedings concerning the 2014 warrant, surrender of the respondent was sought on behalf of Poland in respect of, inter alia, the same offence which is the subject matter of the current EAW before this Court. In the course of those proceedings in the High Court, Donnelly J delivered a judgment on a substantive but specific issue, namely whether correspondence existed between the offence and an offence under Irish law. Donnelly J concluded that there was no such correspondence and refused an order for surrender. The decision was not appealed and thereby became binding on the parties. The parties on those proceedings were the same parties before the court in the current application. The issue which this court is asked to determine is precisely the same issue. Surrender was nor refused on a technical defect in the warrant, but rather on the substantive issue of correspondence.' 29. He concluded that, bearing in mind the reasoning of Donnelly J in Leopold and O'Donnell J in Tobin, the respondent was entitled to the benefit of the earlier finding in relation to correspondence either by way of an issue estoppel or by way of a right which accrued to him to enjoy the benefit of that earlier decision. At paragraph 22 Burns J said: 'Insofar as the earlier decision of Donnelly J might be regarded as erroneous in law or premised on a mistake of fact in the form of a mistranslation, I do not believe that this can operate to deprive the respondent of the benefit of that issue estoppel in the earlier decision on the specific issue of correspondence.' 30. He went on to say that if, as appeared to be the position, there had been a mistranslation in the earlier warrant then it had been open to the applicant to withdraw the EAW and present the correct translation or a new correct version at a later date. Here, however, substantive issues as to correspondence had been argued between the parties and a judgment delivered upon the same and no appeal was taken against that decision. He therefore refused surrender as the respondent was entitled to the benefit of the earlier determination on the issue of correspondence. 31. It is clear that issue estoppel may in principle arise in the context of EAW proceedings. This was confirmed by O'Malley J in delivering the unanimous judgment of the Supreme Court in Minister for Justice v Fassih [2022] IESC 10 . She stated therein that issue estoppel can arise in such proceedings 'in the absence of a change in the relevant legal or factual circumstances' 32. The elements necessary to give rise to an issue estoppel, as set out by Keane CJ in Sweeney v Bus Atha Cliath [2004] 1 IR 576 and more recently by McDonald J in George v AVA Trade (EU) Ltd [2019] IEHC 187 , were endorsed by O'Malley J in Fassih. These are that: (a) The Judgment was given by a court of competent jurisdiction; (b) It was a final decision on the merits; (c) The Judgment given determined a question which is raised in the subsequent litigation; and (d) The parties to the subsequent litigation are the same parties as the parties to the previous litigation. 33. Having reviewed earlier authorities, O'Malley J explained how issue estoppel might apply in such proceedings as follows:- 'It seems to me clear from all the foregoing that issue estoppel can, in principle, arise in the context of EAW proceedings. It will not prevent consideration of a new warrant, after a refusal to surrender in respect of an earlier one, for the purpose of determining whether or not the respondent should be surrendered. However, it may, in the absence of a change in the factual circumstances, determine the outcome of an issue sought to be raised in relation to that new warrant. I would consider, in this context, that a distinction between 'technical' and 'substantive' issues may not be particularly helpful. However, it seems that a conclusive ruling on a legal issue that is not specific to the terms of the individual warrant before the court may in principle be binding on the parties to the litigation in which the ruling was given, in the absence of any material change to the law. Similarly, it would seem that a refusal to surrender based on a factual finding that will not change (for example, in relation to the age of criminal responsibility) could be binding. However, a decision that arises from the terms of the warrant itself may not have the same effect, since each new warrant can give rise to new issues and must be given full consideration' 34. At paragraph 129 she went on to say the following:- '129. A further important consideration is that domestic law, while attributing high value to the principles of finality in litigation, does not entirely preclude the retrospective effect of a judicial decision that sets a precedent in law. As Murray CJ said in A. v Governor of Arbour Hill Prison, such a decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or a similar wrong 'provided they are of course entitled to bring proceedings seeking the same remedy in accordance with the ordinary rules of law such as a statute of limitations'. Significantly, he added the following: 'It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded form cases already finally determined. This is the common law position.' 35. And she further added at paragraphs 133 to 134 the following comments: - '133. It is worth noting here that in Amministrazione dell'Economia e delle Finanze and Agenzia delle entrate v. Fallimento Olimpiclub S.r.l. C-2/08 (one of the judgments cited in Cronin v. Dublin City Sheriff [2018] 3 I. R. 191 ), the CJEU discussed the role of a national rule of res judicata in the context of a decision made by an administrative agency when interpreting EU law in relation to an agreement about tax. The Court agreed that the domestic rule of finality did not require to be disapplied with the effect of reopening the decision. However, it stated that the decision could not be given binding effect in relation to subsequent years, if it was in breach of EU law. This appears to indicate that a national court should, when considering a matter that is related to previous proceedings but requires a separate decision, apply the correct law as found by the CJEU rather than continuing with the mistaken view, even if national procedural rules would favour the latter. As it happens, the domestic law (as discussed in Keogh and the other authorities mentioned above) would lead to the same conclusion in a similar context. 134. While EU law respects national rules of procedure, and in particular respects the legal principles underlying the concept of the finality of judgments, it also enjoins Member States to ensure that the principles of effectiveness and equivalence are observed. Equivalence is not in issue here, but effectiveness may well be impeded in circumstances where the application of the national rule could result, not alone in a clearly-justified refusal to reopen a past decision, but in a more questionable refusal to apply the correct EU rule to a decision that has yet to be made.' 36. Counsel for the Respondent also referred this Court to the decision of the CJEU in OE (the pseudonym given to Fassih on a reference to that Court by the Supreme Court) [Case C - 142/22, Court of Justice of the European Union, 6 July 2023]. The court did make general observations, at for example paragraph 35 of the Judgment, to the importance, for both the EU legal order and national legal systems, of the principle of res judicata. Having considered that Judgment, it does not seem to in any way effect or alter the general legal principles, as identified by O'Malley J in the Supreme Court in relation to issue estoppel and / or res judicata and its application to EAW cases. 37. The relevant principles on this question can be summarised as follows:- (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 (s); (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. 38. In the present case the Respondent 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. 39. When the first EAW was presented to the Court earlier this year, there was no basis to then 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. 40. 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 16 July 2019. 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. 41. 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. 42. 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. 43. 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 2029 as the Respondent was at that time a fugitive and the sentence could not therefore be enforced. 44. 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 2029. 45. 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' 46. 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 materially 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. 47. 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. 48. 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. 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 49. 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. 50. In this regard the Respondent refers to the following factors:- (i) The Framework Decision had not been adopted by the time of these offences; (ii) The Respondent was nineteen at the time of these offences and is now in his 40s. There has been a delay of almost 25 years between the offences and the issuance of this EAW; (iii) This is the second attempt to seek the surrender of the Respondent for these matters; (iv) Refusal of surrender in the previous instance (February 2025) was due to a failure on the part of the issuing judicial authority to notify this Court that an extension of the Statute of Limitations was made in Poland on the 16 th of December 2015; and (v) No explanation has been offered for the passage of time in this case 51. The Applicant accepts that the offences in the EAW are of 'some antiquity' but submits firstly that there is no inordinate lapse of time between the previous proceedings in February of this year and the sending of this EAW. 52. The Applicant further submits that it is 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 infringe Article 1(3) of the Framework Decision and the issuing of the later warrant is proportionate [ Case C - 158/2021 Puig Gordi & Ors ]. 53. The Minister further submits that, unlike the factual situation in Minister for Justice v Palonka [2022] IESC 6 , the Respondent himself is here largely responsible for any delays that have arisen. Not only was the second EAW issued promptly in this case, but the IJA explained that any delays that have arisen in this case are a direct result of the Respondent remaining at large in circumstances where he knew he was required to serve a custodial sentence. 54. The Respondent also points out that the Respondent has not offered any evidence that his personal circumstances are in any way exceptional nor is there any evidence of mala fides on the part of the Polish authorities. 55. He further submits that this is not one of those rare cases where the Court ought to intervene on the grounds that to permit this application to proceed would amount to an abuse of the processes of this court. Decision re Abuse of Process 56. The principles to be applied where it is asserted that surrender should be refused as the application amounts to an abuse of the process of the Court were helpfully and comprehensively summarised as follows by Burns J in Minister for Justice v Angel [2020] IEHC 699 Burns J as follows:- '(a) there is no bar to bring a fresh application to the Court for surrendered (b) there can be circumstances which justify or require the High Court refusing an application for surrender on the basis of abuse of process; (c) a finding of an abuse of process should not be made lightly (d) it is only where the case has exceptional circumstances that an abuse of process will be found (although exceptionality is not the test) and that the abuse of process is that of the High Court in this jurisdiction rather than a concern about an abuse of process to put the requested person on trial; (e) there is broad public interest in bringing things to finality in one set of proceedings; (f) there is a strong public interest in Ireland complying with its international obligations and surrendering individual in accordance with the relevant extradition provisions; (g) a repeat application for surrender is not per se abusive of process. It would only be an abuse of process where to do so is unconscionable in all the circumstances; (h) mala fides or an improper motive is not a necessary precondition for an abuse of process; and (i) the Court should look to the cumulative factors which may make an application for surrender oppressive or unconscionable ' 57. The case is, in the words of the Applicant, 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 the Respondent himself is largely responsible for any delay that has arisen. 58. It is now beyond question that an issuing authority can make more than one application seeking surrender and the fact that a second or subsequent warrant of itself cannot amount to an abuse of process. 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. 59. This is not a case where, unlike the position for example in Palonka, during the passage of time since the Respondent's conviction in Poland there is evidence before the Court to show that his family and personal circumstances have changed such that to now order his surrender to serve the sentence imposed in Poland would constitute a disproportionate interference with his rights under Article 8 of the European Convention on Human Rights or Article 41 of the Constitution. 60. 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 misstatements in the first EAW concerning the application of the Statute of Limitations to the facts of this case. 61. 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. 62. The complaint of the Respondent in relation to abuse of process is in reality founded on delay. Although there has been a considerable lapse of time since the commission of the offences in question here, it is not a case where the delay has led for example (as in Palonka) to the emergence of such personal and family circumstances such as to engage Article 8 of the Convention. 63. 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 amount to an abuse of the processes of this Court. 64. This ground of objection is dismissed. D. IS ENFORCEMENT OF SENTENCE STATUTE BARRED? 65. The Respondent submits that, contrary to what is set out in the EAW now before the Court, there is at the very least impermissible ambiguity as to whether or not the sentence for which his surrender is sought remains to be served. The Respondent says that there is a direct conflict between two government agencies as to when the Statute of Limitations applies in this case, and this leads to an impermissible lack of certainty. 66. The Applicant submits that the EAW clearly indicates that a sentence of imprisonment is immediately enforceable against the Respondent and furthermore confirms that the Statute of Limitations in this case does not expire until the 16 July 2029. 67. The additional information of the 23 June 2025 from the IJA confirms that the letter dated the 8 June 2020 provided by the Information Desk of the National Criminal Register in Poland did not take into account the decision of the Krakow Srodmiescie Regional Court, dated the 16 December 2015, on the suspension of the enforcement proceedings and the resulting extension of the limitation period. 68. As submitted by the Minister submits that there is therefore no contradiction, and the position is clear as to when the limitation period expires in this case. 69. This ground of objection is therefore dismissed. E. ALLEGED NON-COMPLIANCE WITH S. 11 OF 2003 ACT 70. The Respondent submits that there is a divergence between the first and second EAWs as to the sentence left to be served. 71. Both this EAW and the previous EAW had provided that a sentence of 2 years was imposed on the Respondent. In the previous EAW it was indicated that all of that period of time remained to be served. In the present EAW, however, it is stated that 1 year 8 months and 4 days remains to be served. The Respondent has asserted that 9 months remains to be served. 72. The Minister accepts that there is a difference between what is stated in this regard in the first and second Warrant. Unlike the first EAW, the second EAW includes in its computation credit of 118 days (which the Respondent had spent in pretrial detention on this matter) and this reduces the time to be served to 1 year 8 months and 4 days. 73. Additional information was received by letter dated the 25 June 2025 and that confirms that the Respondent is given credit for the period of pretrial detention, albeit it is now stated that he spent 119 days in such detention and the balance to be served is now 1 year, 8 months and 6 days. 74. There is no confusion as to the sentence that remains to be served based on the information now before the Court. An aggregate sentence of two years imprisonment was originally imposed on the applicant but, as now clarified by the IJA (and no reason has been advanced to call into question what they have stated by way of additional information) he has now been given credit for time spent in pre-trial custody and is therefore now sought to serve the remaining period of 1 year 8 months and 4 days. F. COMPLIANCE WITH S. 45 OF 2003 ACT 75. The Respondent submits that there have been certain hearings, during which the format of the sentence imposed in this case may have been changed, which were carried out in his absence and without any of the protections envisaged under s. 45 of the 2003 Act or without due respect to his defence rights. 76. At Part D of the Warrant, it was stated that the Respondent had appeared in person at the trial resulting in the decision. Additional information received in response to a s20 request, however, stated that he did not in fact appear at the hearing which resulted in the judgment issued at first instance (Kraków - Srodmiescie Regional Court, Second Criminal Division of the 18 June 2003). It does confirm however that he was duly notified of the time and date of the hearing and that his own private defence counsel appeared at such hearing. 77. In that additional information it was further stated that he had also failed to appear at the appeal hearing on the 16 July 2004. Again, it is confirmed that he was duly notified by the authorities in that he received the summons for the hearing personally. It is also stated therein that the appeal was in fact lodged by his own private defence counsel and once again this lawyer represented him throughout the appeal. 78. Additional information of the 23 June 2025 from the IJA also sets out details in relation to various enforcement proceedings subsequently conducted in connection with the sentence imposed. These included: a decision of the 29 October 2004 of the Regional Court of Kraków Srodmiescie ordering a wanted notice to be issued for the Respondent as he had failed to report in order to be taken to serve his sentence and he was absent from his residence, a decision of the District Court in Kraków ordering the issue of an EAW against this Respondent, a decision of the 11 February 2015 of Kraków Srodmiescie Regional Court (upheld on appeal by the District Court in Krakow on the 4 May 2015) rejecting the Respondent's counsel's motion to postpone execution of the aggregated sentence and a decision of the 15 December 2015 suspending the enforcement proceedings and thereby extending the limitation period on the grounds that he was a fugitive and this constitutes 'a long term obstacle preventing enforcement of the custodial sentence against him'. 79. It was further confirmed by the IJA that, contrary to the Respondent's submissions, no decision was ever issued in the present case releasing him from serving this custodial sentence. 80. The Minister submits that in the circumstances and having regard to the information now available, there has been no failure to comply with the requirements of s. 45 of the 2003 Act and that the fair trial rights of the Respondent were respected as regards the trial and appeal in the domestic process. Decision on s. 45 Ground 81. It is clear from the evidence adduced that the Respondent was aware of the scheduled trial on the 18 June 2003 and that he gave a mandate to a lawyer, who he appointed, to represent him and furthermore that he was represented by such lawyer at those proceedings. 82. It is also established that he was aware of the scheduled appeal on the 16 th of July 2004 and again gave a mandate to a lawyer, whom he had appointed, to represent him and the said lawyer acted for him at that appeal. 83. None of the other hearings referred to in the documentation provided by the IJA in this case in any way altered or amended the nature and quantum of the penalty imposed following his conviction for the offences in question. The hearings were ones which concerned enforcement proceedings under Polish law which followed on from his failure to make himself available to serve the lawfully imposed sentence. S. 45 of the 2003 Act clearly has no application to such hearings. 84. Contrary to the claims of the Respondent, the IJA have confirmed that no decision was issued 'in the present case' relieving him from serving the sentence lawfully imposed in this case. 85. The evidence therefore establishes compliance with the requirements of s. 45 of the 2003 Act and that the fair trial and defence rights of the Respondent were upheld in the domestic criminal process. 86. This ground of objection is therefore dismissed. G. CORRESPONDENCE 87. Part E.1 of the EAW invokes Article 2.2 of the Framework Decision by ticking the offence of ' organised or armed robbery' . In additional information provided on the 5 May 2025, the IJA states that this classification of the offence was a translation error, and the offence should properly be categorised in English as 'racketeering and extortion' in circumstances where this is in fact the offence committed. 88. By further additional information of the 25 June 2025, the IJA then explained that the polish term used ( 'wymuszenie rozbojnicze' ) corresponds to extortion or more precisely 'extortion robbery' which is a different crime from robbery or armed robbery under the Polish Criminal Code. It is explained there that, whilst robbery usually involves violence and demands the delivering of the thing immediately, extortion only threatens violence by forcing the victim to behave in a certain way 'somewhere in the not too determined future'. Insofar as this case is concerned, the IJA explains that on the facts here it is 'evident that because the Respondent did not use violence, but only threatened it, forcing the victim to behave in a certain way, in this case to extort money under the threat of destroying his printing company in the future'. 89. The IJA confirms further that this explanation relates to the modified warrant of the 5 March 2025 in circumstances where, it says, the 'original 2004 form actually did not include this designation'. The Minister therefore submits that the warrant is in the form set out in the Annex to the Framework Decision and that the ticked box procedure has been properly invoked. 90. The Respondent claims that the Article 2.2 procedure has been wrongly invoked. He does not, however, make a positive case that correspondence is not made out but merely that correspondence must be shown. Decision re Correspondence 91. Irrespective of the question of whether or not Article 2.2 has been properly invoked, this is a case where correspondence is clearly made out on the facts as disclosed in the EAW and the Additional Information provided by the IJA. 92. 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'. 93. The relevant principles for showing correspondence are now 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 94. I am satisfied that the acts or omissions that constitute the offence in respect of which surrender is sought correspond with offences under Irish Law as follows: - Demanding Money with Menaces contrary to Section 17 of the Criminal Justice (Public Order) Act, 1994, and / or - Robbery contrary to Section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. 95. In the circumstances therefore it is not necessary to consider whether the Polish authorities have properly invoked the 'ticked box' procedure provided under Article 2.2 of the Framework Decision. 96. This ground of objection is therefore dismissed 97. Having considered and rejected each of the grounds of objection advance on behalf of the Respondent and being satisfied of the matters required to be established by the applicant under the 2003 Act and the Framework Decision, I will therefore make an order for the surrender of the Respondent pursuant to s. 16 of the European Arrest Warrant Act, 2003 (as amended). BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC753.html