The High Court has refused an application to surrender Katarzyna Żyłka to Poland to serve the remaining part of a prison sentence, finding that one of the three offences in the European arrest warrant did not correspond to an offence under Irish law.
The judgment, delivered by Mr Justice Paul Burns on 17 July 2020, concerned a sentence of two years and six months imposed by a court in Kraków in 2005 and affirmed on appeal in 2007. The offences related to fraudulently obtaining loans using false identities between 1998 and 2002, and to documents belonging to third parties. The judgment said that, after credit for time already served, one year, four months and six days remained.
At trial, the respondent pursued objections based on correspondence under section 38 of the European Arrest Warrant Act 2003 and compliance with section 45. Her earlier objections concerning delay, family circumstances and alleged political interference were not pressed at trial. The court recorded that offences I and II were certified as fraud and forgery under the applicable European framework, and that the respondent did not dispute that certification. The contested question was whether offence III corresponded to an offence in Ireland.
The Polish warrant said she had kept hidden documents she was not authorised to keep at her sole disposal. Additional information said she had taken documents from a former flatmate and a former employer. The applicant argued that the acts could be treated as theft under Irish law. The respondent argued that the Polish authorities had not confirmed that the documents were stolen, that she knew they were stolen, or that she possessed them to commit fraud.
Justice Burns said the Irish offence of theft required dishonest appropriation without the owner’s consent and an intention to deprive the owner of the property. The information supplied did not establish those elements, and the court considered it unfair or unreasonable to infer them from the descriptions of the other two offences. It therefore found no correspondence for offence III. The parties agreed that, because the sentence was aggregate and could not be apportioned among the offences, surrender could not be ordered unless correspondence was established for all three.
The court consequently refused surrender. It did not determine the section 45 issue as necessary to the outcome, but gave its view for completeness: it was satisfied that section 45 did not prohibit surrender on the information before it. The operative refusal was based on the absence of correspondence under section 38.