Converted Third‑State Sentences under the Transfer Convention Are Treated as “Imposed” in the Issuing State for EAW Purposes; “Heavier Penalty” Objections Confined Post‑Alchester II — Commentary on Minister for Justice v Koltun [2025] IEHC 549

Introduction

This High Court decision addresses a complex European Arrest Warrant (EAW) scenario at the intersection of sentence transfer, recognition/conversion of third‑state judgments, and post‑Alchester II limits on “heavier penalty” complaints under Article 49 of the EU Charter and Article 7 ECHR. The Minister for Justice sought the surrender of Mr Grzegorz Koltun to Poland on an EAW issued on 27 March 2018 to enforce a remaining term of 6 years, 11 months, and 26 days of a sentence that originated in the United Kingdom but was subsequently converted in Poland under the Council of Europe Convention on the Transfer of Sentenced Persons (1983).

The respondent was convicted in Manchester Crown Court in 1999 for conspiracy to supply diamorphine and sentenced to 18 years’ imprisonment. At his request, Polish authorities took over the execution of that sentence. The Lublin Circuit Court determined the UK offence corresponded to Polish offences, and—finding the 18‑year term “unknown” under Polish law—converted it to a 15‑year sentence under Polish law, crediting time served. After two temporary release periods in 2005–2006, the respondent failed to return to custody and decamped to Ireland, where he later acquired citizenship under a different name. Arrested on an SIS alert in September 2023, he challenged surrender on multiple grounds.

Key issues included: whether a converted sentence (from a third state) is to be treated as “imposed” in the issuing state for EAW purposes; whether Poland could still enforce the sentence after the respondent’s absconding; adequacy of particulars under s.11(1A) of the European Arrest Warrant Act 2003 (the 2003 Act); specialty; correspondence; in absentia/defence‑rights issues under s.45; prison conditions under Article 3 ECHR; family life and delay under Article 8 ECHR; a technical objection to the judgment referenced in the EAW; and whether the Polish execution regime would breach Article 49 of the Charter/Article 7 ECHR on “heavier penalty” grounds, especially in light of the Grand Chamber’s recent ruling in Alchester II (C‑734/24, 3 April 2025).

Summary of the Judgment

McGrath J ordered the respondent’s surrender. The Court held that:

The 15‑year sentence, resulting from Poland’s conversion under the Transfer Convention, is to be regarded as a sentence “imposed” in Poland for EAW purposes, taking the case outside the Gustas problem.
Poland’s right to enforce the sentence was not extinguished by absconding; Framework Decision 2008/909/JHA on transfer of sentenced persons was inapplicable temporally and, in any event, has no direct effect conferring individual rights.
The EAW complied with s.11(1A) of the 2003 Act; any lack of granular detail on “place” did not cause injustice, nor did it trigger s.44 extraterritoriality concerns on the facts.
Specialty concerns were speculative; the presumption in s.22(3) stands.
Correspondence was established: a conspiracy to supply diamorphine would constitute offences under Irish drugs law as at the issue date (27 March 2018).
Any in absentia concerns were addressed: the respondent initiated the transfer, mandated counsel in Poland, was represented at the conversion hearing, was notified of the outcome and appeal rights, and did not appeal; s.45 grounds were met or, alternatively, defence rights were fully vindicated.
Article 3 ECHR objections failed: Poland’s detailed assurances, viewed through mutual trust, sufficed absent precise, current, institution‑specific risk evidence.
Article 8 ECHR and delay did not reach the high threshold for refusing surrender, particularly given the seriousness of the underlying drug trafficking conspiracy and the respondent’s absconding.
Any inaccuracy in referencing the enforceable Polish judgment in the EAW was trivial and curable (s.45C).
Article 49 Charter/Article 7 ECHR “heavier penalty” arguments failed in light of Alchester II: adjustments to release/licence regimes engage execution rather than the intrinsic scope of the penalty. Here, the UK sentence was reduced to 15 years in Poland; no retroactive increase in intrinsic seriousness arose.

Analysis

Statutory and Treaty Framework

European Arrest Warrant Act 2003: s.10(3) (sentence “imposed” in issuing state), s.11(1A) particulars, s.22 specialty, s.37 rights protections, s.38 correspondence, s.44 extraterritoriality, s.45 in absentia protections, s.45C minor errors.
Framework Decision 2002/584/JHA (EAW); Framework Decision 2008/909/JHA (transfer of sentenced persons) and its transitional Article 28(1).
Council of Europe Convention on the Transfer of Sentenced Persons 1983 and its protocols (recognition/“conversion” under Polish law).

Precedents Cited and Their Influence

Minister for Justice v Gustas [2021] IEHC 572: In Gustas, while the CJEU interpreted the Framework Decision (FD 2002/584) to allow an EAW based on execution of a third‑state sentence recognised in the issuing state, the Irish High Court ultimately refused surrender because s.10(3) of the 2003 Act requires that the sentence be “imposed” in the issuing state and could not be conformingly re‑interpreted. In Koltun, Greally J (10 May 2024) and now McGrath J distinguish Gustas: here, Poland did not merely “recognise” a third‑state sentence; it converted it into a Polish sentence under domestic law implementing the Transfer Convention. That conversion renders the sentence “imposed” in Poland for the purposes of Irish law.
Minister for Justice v Kairys [2022] IESC 51: Framework decisions do not have direct effect to create enforceable individual rights; they require implementation in national law. This underpins the rejection of attempts to rely directly on FD 2008/909 to bar enforcement.
Minister for Justice v Dolny [2009] IESC 48: Correspondence asks whether the acts would constitute an offence in Ireland at the EAW issue date—not a strict mirror of foreign offence definitions. Supports finding of correspondence for conspiracy to supply diamorphine.
Minister for Justice v Hughes [2020] IEHC 229: Conspiracy may be transnational; acts of co‑conspirators are attributed across borders. Reinforces the rejection of an extraterritoriality bar under s.44 on these facts.
Minister for Justice v Fiszer [2015] IEHC 664: The executing court places trust in issuing authority information absent contrary evidence; awareness of proceedings suffices even if precise hearing dates were not known. Supports acceptance that the respondent mandated counsel and had defence rights vindicated in Poland.
Minister for Justice v Zaranescu (Supreme Court): Even where none of the formal s.45 in absentia conditions are strictly met, surrender may proceed if defence rights were fully protected. McGrath J relies on this to say that, alternatively to s.45’s Condition 3.2, the process still vindicated defence rights.
Minister for Justice v Rettinger [2010] IESC 45; Minister for Justice v Angel [2020] IEHC 699: Set the Article 3 ECHR test (substantial grounds/real risk) and the reliance on specific, current, institution‑focused evidence, together with weight given to assurances in light of mutual trust. These inform the rejection of the prison‑conditions objection.
Minister for Justice v Vestartas [2020] IESC 12; Minister for Justice v DE [2021] IECA 188; Minister for Justice v Palonka [2022] IESC 6: Emphasise the high threshold for Article 8 ECHR/delay objections; delay alone is not a bar; only exceptional, oppressive family circumstances can outweigh the strong public interest in surrender. Applied to reject the Article 8 claim.
Alchester II, CJEU Grand Chamber, C‑734/24 (3 April 2025), and related ECtHR authorities (Del Río Prada, Devriendt, Kupinskyy): Clarify that retrospective changes to release/licence regimes concern execution rather than the intrinsic scope of the penalty; only retroactive alteration of the penalty’s intrinsic seriousness engages Article 49(1) Charter/Article 7 ECHR. Koltun applies this to dispose of the “heavier penalty” argument.

Legal Reasoning Issue-by-Issue

1) Conversion under the Transfer Convention vs. Gustas

The decisive threshold question was whether s.10(3) of the 2003 Act—requiring that the sentence be “imposed” in the issuing state—was satisfied. In Gustas, a mere recognition (pursuant to a bilateral treaty) of a third‑state sentence did not satisfy s.10(3). Here, however, Poland converted the UK sentence into a sentence of 15 years under Polish law (Article 611C of the Polish Criminal Code), after determining correspondence to Polish offences and adjusting to a Polish‑law penalty range, with credit for time served. This “conversion” created a Polish sentence—the legal basis for the respondent’s custody in Poland—thereby satisfying s.10(3). On this, McGrath J expressly agrees with Greally J’s prior ruling in the same proceedings.

2) Enforceability, Absconding, and the Irrelevance of FD 2008/909

The respondent argued that after he absconded, Articles 21–22 of FD 2008/909 transferred sole enforcement competence back to the UK. The Court rejected this on multiple grounds:

Polish law governs enforceability. Under mutual trust, Ireland proceeds on the basis that the Polish sentence is enforceable unless the respondent shows a Polish‑law impediment—which he did not.
No Convention rule extinguishes enforcement on absconding. Neither the 1983 Transfer Convention nor its protocols provide that the administering state loses enforceability if the prisoner absconds; such a reading would be both textually unsupported and practically absurd.
Temporal bar and no direct effect. FD 2008/909 post‑dates the 2001 Polish decision and 2003 conversion. Article 28(1) FD 2008/909 preserves pre‑2011 requests under earlier instruments. Even if relevant, framework decisions have no direct effect conferring rights (Kairys).
Shared, not “sole,” enforcement. The Court notes that even where Article 22(2) refers to a right to enforce “reverting,” it does not create a regime of exclusive enforcement by the sentencing state where an administering state has already lawfully taken over and converted execution under its law.

3) Particulars under s.11(1A) and Extraterritoriality (s.44)

Three sub‑points were made:

Classification (s.11(1A)(d)). The warrant must state the “nature and classification under the law of the issuing state.” Poland is the issuing state; its classification was correctly given. There is no requirement to classify under English law.
Timeframe and detail. The EAW need not set out a prima facie case or every evidential detail; it must enable the executing court to perform its function and inform the requested person of the reason for arrest. Those thresholds were met given the indictment particulars and the respondent’s own knowledge.
“Place” of offence (s.11(1A)(f)) and s.44. Although precise location details were not available from the IJA, the respondent—having been tried and sentenced in the UK—was uniquely positioned to raise evidence of extraterritoriality if it existed. He did not. He even produced an opinion noting conviction “for an act committed in Great Britain.” Moreover, conspiracies can transcend borders; acts of co‑conspirators are attributed across jurisdictions (Hughes). No s.44 bar arose.

4) Specialty (s.22)

The specialty objection was a bare assertion. Under s.22(3), the Court presumes compliance by the issuing state unless proved otherwise. There was no evidence to rebut that presumption, and no reason to suspect Poland would proceed for unconsented matters.

5) Correspondence (s.38)

Under Dolny, the question is whether the acts would constitute offences in Ireland as at the EAW issue date (27 March 2018). The EAW and additional information describe a conspiracy to supply diamorphine between 29 June and 4 December 1997. Those acts would constitute offences in Ireland, including possession (s.3), sale/supply (s.15 or s.15A), aiding/abetting (s.21(1)), and conspiracy to commit such offences under the Misuse of Drugs Acts. Conspiracy does not require proof of personal possession, personal supply, or completion of a substantive offence. Correspondence was therefore established.

6) In absentia and Defence Rights (s.45)

The respondent accepted the UK trial was in person; his complaint focused on the Polish conversion hearing (7 October 2003). The Court found:

The respondent initiated the transfer application; he appointed counsel (Ms Anna Popko), who appeared at relevant hearings and “performed her duties”.
He (and his lawyer) were served with the conversion decision and advised of appeal rights; no appeal was taken.

On these facts, if the 7 October 2003 hearing were a “trial resulting in the decision,” the Court held that Condition 3.2 of the s.45 Table was satisfied (awareness of trial, mandate to defence counsel, and actual defence by counsel). Alternatively, even if s.45’s formal conditions were arguendo not fully met, the respondent’s defence rights were “fully vindicated,” which suffices to permit surrender under the approach endorsed by the Supreme Court in Zaranescu. The respondent’s contrary assertions (e.g., no mandate, no notice) were unsupported by affidavit and could not overcome the strong presumption of accuracy attaching to IJA information per Fiszer.

7) Prison Conditions and Assurances (Article 3 ECHR)

Applying Rettinger and the principles summarised in Angel, the Court reiterated:

The respondent bears the burden to produce evidence of a real risk of Article 3 ill‑treatment.
Generalised, historic, or non‑specific reports are insufficient; institution‑specific, current risks are key.
In the absence of precise indications of a real risk at the facilities likely to hold the respondent, the executing court must rely on detailed assurances from the issuing state, given mutual trust.

Poland provided comprehensive assurances on cell space, hygiene, out‑of‑cell time, healthcare, nutrition, and protections for vulnerable prisoners. There was no contrary precise evidence; the objection failed.

8) Article 8 ECHR and Delay

The Court reaffirmed the high threshold: strong public interest in surrender, delay never a standalone bar, and only truly exceptional, oppressive family circumstances can outweigh surrender. While the respondent has longstanding family ties, health issues, and a work history in Ireland, he absconded from lawful temporary release and later changed his name upon acquiring Irish citizenship. Given the serious nature of the underlying drug conspiracy and his breach of trust, the Article 8 claim did not meet the threshold for refusal.

9) Technical Objection to the Identified Judgment; s.45C

A complaint that part of the EAW referenced the 20 November 2001 admissibility/precautionary decision (rather than the 7 October 2003 conversion decision) was held to be trivial and causing no injustice. The enforceable sentence was clear from the EAW and additional information. In any event, s.45C would cure such minor errors.

10) Article 49 Charter / Article 7 ECHR (“Heavier Penalty”) Post‑Alchester II

The respondent argued that execution in Poland, by altering release/licence conditions compared to the UK, would retroactively impose a “heavier penalty.” The Court treated the CJEU’s Grand Chamber ruling in Alchester II (C‑734/24, 3 April 2025) as dispositive. Alchester II, consistent with ECtHR jurisprudence (Del Río Prada, Devriendt, Kupinskyy), draws a key line:

Changes to release/licence regimes pertain to execution, not the penalty, unless they retroactively alter the intrinsic seriousness of the penalty imposed at the time of the offence.
Merely extending the custody fraction before eligibility for release on licence does not, of itself, amount to a heavier penalty under Article 49(1) or Article 7.
A breach may arise if the measure effectively removes the possibility of release or forms part of a series of measures increasing the sentence’s intrinsic severity.

Applied here, the respondent’s UK sentence (18 years) was in fact reduced by the Polish conversion to 15 years. There was no proof that Polish execution rules retroactively increased the penalty’s intrinsic seriousness. The Article 49/Article 7 objection therefore failed.

Impact and Significance

This judgment consolidates several important points for Irish EAW practice:

Conversion under the Transfer Convention creates a domestic sentence for EAW purposes. Where the administering state lawfully converts a third‑state sentence into its own sentence (after correspondence assessment and alignment with its penalty framework), that sentence is treated as “imposed” in the issuing state for s.10(3). This is a principled way to distinguish cases like Gustas (recognition) from transfer‑and‑conversion cases (imposition).
FD 2008/909 is temporally and doctrinally constrained. It does not retroactively govern pre‑2011 transfers and, as a framework decision, cannot be leveraged for direct‑effect rights by requested persons in surrender proceedings. The executing court will defer to the issuing state’s view of enforceability absent contrary evidence of domestic law.
In absentia protections are practical and rights‑focused. Where a requested person initiated transfer, mandated counsel, and had notice and appeal rights, Irish courts will apply s.45 and, if necessary, the broader Zaranescu approach to defence‑rights vindication.
Article 3 objections require precision; assurances carry weight. Generalised material is insufficient. Well‑particularised, up‑to‑date assurances from EU partners are decisive absent specific, credible rebuttal.
Article 8 family/delay objections remain exceptional. Serious offending, absconding, and public interest in surrender will typically outweigh private/family life claims.
Alchester II narrows “heavier penalty” challenges. Post‑Alchester II, altering release eligibility or licence conditions will rarely block surrender. Practitioners must show a retroactive change that increases the penalty’s intrinsic seriousness—not merely a stricter execution regime.
Minor documentary errors are curable. Technical misreferences in an EAW will not derail surrender where the enforceable order and remaining balance are clear (s.45C).

Complex Concepts Simplified

European Arrest Warrant (EAW): A streamlined EU mechanism allowing surrender of persons for prosecution or to serve a sentence, based on mutual trust and recognition.
Conversion vs. Recognition: “Recognition” accepts a foreign judgment; “conversion” replaces the foreign penalty with one under domestic law (after checking equivalence and penalty ranges). Conversion yields a new, domestic sentence.
Framework Decision 2008/909/JHA: An EU instrument for mutual recognition of custodial sentences for transfer; it applies prospectively and requires national implementation; it does not, by itself, create individual rights.
Section 10(3) (2003 Act): For EAW enforcement of a sentence, that sentence must have been “imposed” in the issuing state. A converted sentence under domestic law meets this requirement.
Section 11(1A): Specifies details an EAW must contain (nature/classification under issuing state law, time/place, etc.). It requires sufficient, not exhaustive, particulars.
Section 44 (Extraterritoriality): Bars surrender in narrow circumstances where an offence is extraterritorial under Irish law and certain conditions are not met. Conspiracies often have transnational elements without triggering this bar.
Section 45 (In absentia): Surrender may be refused for trials in absentia unless conditions indicate the person had adequate notice/representation/appeal rights. Even beyond formal conditions, courts look to whether defence rights were effectively protected.
Specialty: A surrendered person can only be proceeded against for the offences specified in the EAW unless consent is obtained. Courts presume compliance by the issuing state.
Correspondence: The acts described must amount to an offence under Irish law at the date of the EAW; exact matching of legal labels is not required.
Article 3 ECHR and Assurances: To refuse surrender on prison‑conditions grounds, a requested person must show a real risk of ill‑treatment. Detailed assurances from partner states are generally relied upon absent precise contrary evidence.
Article 8 ECHR (Family/Private Life): Interference is expected in surrender; only truly exceptional, oppressive circumstances—often in combination with delay—may justify refusal.
Article 49 Charter / Article 7 ECHR (“Heavier Penalty”): Retroactive changes to the intrinsic seriousness of the penalty are prohibited. Changes to parole/licence regimes usually concern execution and are not “penalties,” absent an alteration that makes the sentence intrinsically more severe.

Conclusion

Minister for Justice v Koltun [2025] IEHC 549 is a thorough endorsement of core principles in EAW law and a clarifying decision on two fronts. First, it cements the distinction between “recognition” and “conversion”: when a third‑state sentence is converted under the Transfer Convention into a domestic sentence, it is treated as “imposed” in the issuing state for the purposes of s.10(3) of the 2003 Act. This places such cases beyond the Gustas impediment and ensures that absconding does not frustrate enforcement. Second, it is an early Irish application of the CJEU’s Alchester II clarification: only retroactive changes that increase the penalty’s intrinsic seriousness violate Article 49(1)/Article 7; mere changes to release/licence regimes concern execution and will not, without more, bar surrender.

The judgment also reiterates settled approaches to s.11(1A) particulars, the high bar for Article 8/delay and Article 3 prison‑conditions claims, the curability of minor EAW defects, and the flexible, rights‑focused application of s.45 in absentia protections. For practitioners, Koltun both consolidates existing doctrine and delineates the evidential and legal thresholds that future objections must meet. Its principal lasting contribution is to confirm that sentences converted under the Transfer Convention stand on a firm footing as domestic sentences for EAW enforcement, and that “heavier penalty” arguments must target genuine retroactive alterations to the substance—not the execution—of the penalty.