Minister for Justice and Equality -v -Sosnowski [2019] IEHC 742 (01 November 2019)

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JUDGMENT of Mr. Justice Binchy delivered on the 1st day of November, 2019

1. By this application, the Minister seeks an order for the surrender of the respondent to

Poland pursuant to a European Arrest Warrant (“EAW”) dated the 26th July, 2018 which

was endorsed by this Court on the 4th February, 2019. The Polish authorities require the

surrender of the respondent for the purpose of serving a sentence of imprisonment

imposed upon him by the district court of Szczecin on the 29th January, 2016. The EAW

states that the respondent appeared in person at the trial resulting in the decision. In an

affidavit sworn on his behalf by his solicitor, Mr Stiofan Fitzpatrick, and dated 21st

October, 2019, it is averred on behalf of the respondent that while he did receive a

suspended sentence and fine on that date, they were unrelated and unconnected to the

offences to which this warrant relates, and moreover it is claimed that the respondent

was serving a different sentence on 29th January, 2016 and was not therefore present in

court when the sentence to which this warrant relates was handed down.

2. No issue was raised as to the identity of the respondent and accordingly I am satisfied

that the person before the Court is the person referred to in the warrant.

3. The warrant is stated to relate to four offences, and correspondence has been challenged

4. The first offence relates to what is clearly an assault. It is stated that the respondent hit a

named person with his fists, picking her up and making her fall over, causing bodily

injuries which are described in detail. This would clearly amount to an assault in this

jurisdiction contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997.

5. In the description of the second offence it is stated that the respondent possessed a

psychotropic substance in the form of a white-yellow powder weighing in total 1.61g,

which was amphetamine sulphate. The respondent contends that there is no proof that

possession of the substance constitutes an offence in this jurisdiction. For his part, the

Minister argues that possession of this substance is prohibited pursuant to section 3 of the

Misuse of Drugs Act 1977 by reason of it being a controlled drug specified as such

pursuant to section 2 of the same Act. Counsel for the Minister refers to the schedule of

controlled drugs set forth in schedule one of the Act of 1977 in which “amphetamine” is

listed. Counsel further draws my attention to paragraph 4 of the schedule which provides

that: “any salt of a substance or product specified in paragraph 1” is also a controlled

drug. He further draws my attention to paragraph 5 of the schedule which states that

“any preparation or product containing any proportion of a substance or product specified

6. I am satisfied that a sulphate is a salt of a substance for the purposes of paragraph 4 of

the schedule to the Act of 1977. I do not believe that it was necessary for the Minister to

produce expert evidence to prove this. But even if I am wrong about this, I think it is

clearly the case that amphetamine sulphate must be a preparation or product containing

a proportion of amphetamine and that it is therefore a controlled drug when paragraphs 1

and 5 of the schedule to the Act of 1977 are read together. In my view therefore

7. The third offence is described in the following terms: “the requested person, on 14th

February, 2011, in Szczecin , threatened Marzanna Sochacz with committing an offence

against her health, which threat caused in the threatened person a justified fear to be

fulfilled”. The respondent contends that the acts described do not correspond to any

offence in Irish law. By letter dated 26th October, 2018, the Minister asked for

clarification in relation to this offence and specifically enquired whether the threat made

by the respondent was to cause physical injury to the victim. The issuing judicial authority

replied by letter dated 8th November, 2018 stating that “the threat of the sentenced

person had to consist in a physical injury of the body of the wronged person”.

8. Counsel for the Minister argues that the acts as described correspond to an assault

contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997, and in

particular section 2 (1)(b) thereof. This section provides as follows: -

“2.— (1) A person shall be guilty of the offence of assault who, without lawful excuse,

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately

(a) application of heat, light, electric current, noise or any other form of energy, and

9. Counsel for the Minister submits that section 2 when read as a whole embraces just about

every possible form of harm to a person’s health and therefore the actions as described in

paragraph 2 (C) of the EAW must correspond to an offence under section 2 of the Act of

1997. However, I consider that there are insufficient particulars of this offence given. In

order to know whether or not the threat made falls within the definition of an assault for

the purpose of section 2 of the Act of 1997 it is necessary to know exactly what was said.

I am therefore directing the Minister to enquire of the issuing judicial authority precisely

what the respondent is alleged to have said by way of threat to Marzanna Sochacz on the

10. The particulars of the fourth offence describe how the respondent forced his way into a

flat and thereafter threatened the occupant “with committing an offence against his life

and health” and then goes on to state that the respondent “used violence against the

victim by hitting them with fists, kicking, hitting with a hot frying pan, a broomstick, a

carpet beater, by which the requested person caused in the victim numerous bruises”. No

argument was raised as to correspondence in relation to the actions described in this part

of the EAW which clearly describe a burglary and an assault each of which would

11. The EAW states that the four offences described above carry maximum sentences of 10

years, three years, two years and five years of imprisonment respectively, and

12. At paragraph C.2 of the EAW it is stated that the respondent received the following

custodial sentences in respect of the offences above: six years, three months, three

months and four months respectively. It is then stated that an aggregate penalty of six

years and six months of imprisonment was imposed, and it then goes on to state that the

remaining sentence to be served is: “6 (six) months, 5 (five) months and 27 ( twenty

13. Counsel for the respondent argues that this is unclear and that even allowing for the

possibility that the reference to 6 months is a typographical error, as contended for by

counsel for the Minister, who argues that it is clearly intended to refer to 6 years, it is

submitted that it is still unclear because in the previous page of the warrant it is stated

that an aggregate penalty of six years and six months of imprisonment was imposed. It is

also submitted that it is unclear as to how the court arrived at an aggregate sentence.

14. The reference to 6 months in the part of the EAW that refers to the remaining sentence to

be served is clearly a typographical error. This is apparent from the previous part of the

EAW which states that an aggregate penalty of six years and six months of imprisonment

was imposed. Paragraph C.3 then sets out the remaining sentence to be served and

refers, initially, to 6 months in what is clearly an error. This is apparent because it then

goes on to refer to 5 months and 27 days. Clearly this is giving the respondent some

credit for four days spent in custody. It is not necessary for the issuing judicial authority

to provide details as to the calculation of the aggregate sentence. This objection must

15. The respondent also raised a number of objections on what may loosely be described as

rule of law issues in Poland. These were based on his assertion that he was not present in

court on the 29th January, 2016, which of course was also an objection to surrender

based on s. 45 of the Act of 2003. However, I ruled that so far as that assertion is

concerned, this Court is obliged to accept what is stated in the face of the warrant i.e.

that the respondent was present in court at the trial that resulted in the decision. This

Court is obliged to accept that statement in accordance with the trust and confidence that

underpins the framework decision providing for the system of issue and execution of

European arrest warrants. I, having thus ruled, counsel did not pursue the “ rule of law”

16. The respondent did however advance objections to a surrender based upon prison

conditions in Poland. In his affidavit sworn on behalf of the respondent, Mr Fitzpatrick

avers that he is instructed that the respondent has previously served time in Szczecin

prison where the conditions of imprisonment, the respondent claims, are inhuman and

degrading. He claims that there were 6 to 7 people in a cell of 14/15 m² which would

comprise less than the minimum requirements for prison space. Mr Fitzpatrick avers that

the toilet was in the prison cell and the respondent was only allowed one hour of exercise

per day. He also says that hygiene in the cells was very poor, that there were bedbugs

and that his bedclothes often had blood stains on them. He also said that the cells were

very cold during winter when temperatures were often between -5 and -25. He also

claims that inter-prisoner violence was widespread and that he himself was assaulted on

one occasion and suffered a broken nose. He claims that prisons were completely

17. The Court was referred to a report of the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishment (CPT) dated 25th July,

2018, but referring to the period of inspection by the CPT which was from 11th to 22nd

May, 2017. During this period, the CPT visited five prisons in Poland. The report records

that the delegation received no allegations of physical ill treatment by staff in any of the

prisons visited, and only a small number of allegations of verbal abuse. Furthermore, the

report records that inter-prisoner violence was not a frequent occurrence in the

establishments visited. While the report makes a number of recommendations as regards

prison conditions and the prison regime, the main criticism of the CPT related to the

official minimum standard of space per prisoner which is set in Poland at 3 m². It is clear

from the report that the CPT has repeatedly asked the authorities to raise this minimum

to 4 m² per prisoner, but the authorities in Poland have to date refused to do so. The

report records however that the prisons visited are respecting the official minimum

18. In the case of Mursic v Croatia, a decision of the European Court of Human Rights of 24th

October, 2016, (application no. 7334/13) that court held, at paras. 136 and 137 : -

“ 136. In the light of the considerations set out above, the Court confirms the standard

predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy

accommodation as the relevant minimum standard under Article 3 of the Convention.

137. When the personal space available to a detainee falls below 3 sq. m of floor surface

in multi-occupancy accommodation in prisons, the lack of personal space is considered so

severe that a strong presumption of a violation of Article 3 arises….”

19. It is unclear whether the applicant will be detained in multi-occupancy cells or in a single

occupancy cell. If the latter, the CPT recommendation to the Polish authorities is that the

minimum living space should be 6 m². But in any case it is clear from the report of the

CPT that, in the prisons visited, the Polish authorities are respecting the official minimum

standard of 3 m² and by inference this must refer to multi-occupancy cells. The

conclusion that I would draw from this therefore is that while the prisons in Poland are

not adhering to the ideal standard so far as living space per prisoner is concerned, nor are

they falling below the minimum standard such as to give rise to a violation of rights under

20. The respondent also raised other issues, through his solicitor’s affidavit, alleging violation

of Article 3 rights in Polish prisons. However, these are not supported by the CPT report

or by any other evidence. Accordingly, the respondent has failed to establish that he is at

a real risk of inhuman or degrading treatment by virtue of general conditions of detention

in Poland, if he is surrendered to serve his prison sentence, and this objection must

21. I am satisfied also that I am not required to refuse surrender of the respondent for any of

the reasons set forth in sections 21A, 22, 23 or 24 of the European Arrest Warrant Act

22. I will adjourn the matter for a short period to allow the issuing judicial authority to

address the query above in relation to the third offence, before I may finalise this

decision.

Result: The result in this matter was that the matter was adjourned to allow a request for additional information from the issuing judicial authority.

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