Minister for Justice and Equality v Bashkim OSAJ
| Jurisdiction | Ireland |
| Judge | Mr. Justice Paul Burns |
| Judgment Date | 06 December 2021 |
| Neutral Citation | [2021] IEHC 846 |
| Court | High Court |
| Docket Number | [2021 No. 007 EXT.] |
[2021] IEHC 846
[2021 No. 007 EXT.]
THE HIGH COURT
European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 37 – Applicant seeking an order for the surrender of the respondent to the Republic of Austria pursuant to a European arrest warrant – Whether surrender was precluded by s. 37 of the European Arrest Warrant Act 2003
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Osaj, to the Republic of Austria pursuant to a European Arrest Warrant dated 8th January, 2021 (the EAW). The EAW was issued by Dr Stranzinger, First Deputy Prosecutor of the Prosecution Office of Ried im Innkreis, as the issuing judicial authority. The EAW sought the surrender of the respondent in order to prosecute him in respect of two alleged offences. At hearing, the respondent pursued the following objections to surrender: (i) surrender was precluded as Dr Stranzinger was not an issuing judicial authority for the purposes of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended; (ii) surrender was precluded by virtue of s. 37 of the European Arrest Warrant Act 2003, as amended, as, in the absence of a procedure before the courts of the issuing state for challenging the EAW, surrender would be incompatible with the State’s obligations under the European Convention on Human Rights (the ECHR); (iii) surrender was precluded by virtue of s. 21A of the 2003 Act as surrender was not sought for the purposes of prosecution; (iv) surrender was precluded by virtue of s. 37 of the 2003 Act due to lapse of time and the impact surrender would have upon the respondent’s private and family life, such that surrender would be incompatible with the State’s obligations under the ECHR, and/or the application amounted to an abuse of process; and (v) surrender was precluded due to an unacceptable level of ambiguity in the contents of the EAW.
Held by Burns J that he was not satisfied that there was any irregularity or lack of legal compliance in respect of the issuing of the EAW such that the Court should refuse to give effect to same. He was not satisfied that the EAW before the Court was invalid by reason of the domestic mechanism for appealing or challenging same in the issuing state. He was satisfied that a sufficient level of judicial protection as required by the Framework Decision was provided under the Austrian system for the issue of a European arrest warrant. He was not satisfied that the presumption provided for at s. 21A(2) of the 2003 Act had been rebutted. He was satisfied that there was an intention and decision on the part of the Austrian authorities to prosecute, including to charge and try, the respondent for the offences to which the EAW related, albeit that this was subject to a further decision whether to continue the prosecution after the respondent had been questioned and informed as to his rights, as required under Austrian law. Burns J was satisfied that the personal circumstances of the respondent were not so exceptional as would justify the Court in refusing his surrender. Burns J was not satisfied that there had been any culpable delay on the part of the Austrian authorities. He was not satisfied that any abuse of process had been made out before the Court. He was satisfied that the EAW contained sufficient details of the alleged offending. He was further satisfied that the absence of any further details had not been prejudicial to the respondent in the context of the application for surrender and would not be prejudicial to him in meeting the charges or in any other way following surrender.
Burns J held that, having dismissed the respondent’s objections, the Court could make an order pursuant to s. 16 of the 2003 Act for the surrender of the respondent to Austria. However, as there was a separate request for the surrender of the respondent to serve a prison sentence in Belgium for other offences and as the Court considered that an order for surrender could also be made in respect of that matter, the Court postponed making the surrender order in order to consider which application for surrender should be given effect to first. Following further consideration, the Court ordered the surrender of the respondent to Belgium in the other proceedings and declined to make an order for surrender in these proceedings.
Application refused.
(No. 1)
JUDGMENT of Mr. Justice Paul Burns delivered on the 6th day of December, 2021
By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Austria (“Austria”) pursuant to a European arrest warrant dated 8th January, 2021 (“the EAW”). The EAW was issued by Dr. Petra Stranzinger, First Deputy Prosecutor of the Prosecution Office of Ried im Innkreis, as the issuing judicial authority.
The EAW seeks the surrender of the respondent in order to prosecute him in respect of 2 alleged offences.
The EAW was endorsed by the High Court on 21st January, 2021 and the respondent was arrested and brought before the High Court on the same day on foot of same.
I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.
I am satisfied that none of the matters referred to in ss. 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections. I deal with s. 21A of the Act of 2003 later in this judgment.
I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. It is indicated in the EAW that the offences carry a maximum penalty of 1 to 15 years' imprisonment. No issue was taken in respect of minimum gravity.
At part E of the EAW, a description of the circumstances in which the 2 offences were committed is set out. It alleged that the respondent, acting in concert with others, was involved in breaking into and entering a family home, threatening the occupants with a pistol and a knife, locking them in the toilet and extorting cash and other valuables to a total value of €775,280.
By virtue of s. 38(1)(b) of the Act of 2003, it is not necessary for the applicant to establish correspondence between the offences to which the EAW relates and offences under the law of the State where the offences referred to in the EAW are offences to which Article 2.2. of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), applies and carry a maximum penalty in the issuing state of at least 3 years' imprisonment. In this instance, the issuing judicial authority has certified that the offences to which the EAW relates are offences to which Article 2.2. of the Framework Decision applies, that same are punishable by a maximum penalty of at least 3 years' imprisonment and has ticked the appropriate box for “ organised or armed robbery”. It is noted that at part C of the EAW, it is indicated that the maximum penalties applicable to the offences are between 1 and 15 years' imprisonment. By additional information dated 28th August, 2020, it is clarified that the offences in respect of which surrender is sought carry a maximum penalty of 15 years' imprisonment for aggravated robbery and 3 years' imprisonment for unlawful deprivation of liberty. I am satisfied that the tick-box procedure has been appropriately utilised in respect of both offences. There is no manifest error or ambiguity concerning the certification by the issuing judicial authority such as would justify this Court in looking beyond same. In any event, leaving aside the tick-box procedure, I am satisfied that correspondence can be established between the offences to which the EAW relates and offences under the law of this State, viz. as regards the first offence: burglary and/or aggravated burglary and/or robbery contrary to ss. 12, 13 and 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, respectively; as regards the second offence, false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act, 1997.
As the EAW seeks the surrender of the respondent for the purposes of prosecution, no issue arises in respect of s. 45 of the Act of 2003.
At hearing, the respondent pursued the following objections to surrender:-
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(i) Surrender is precluded as Dr. Petra Stranzinger, First Deputy Prosecutor of the Prosecution Office of Ried im Innkreis, is not an issuing judicial authority for the purposes of the Framework Decision;
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(ii) Surrender is precluded by virtue of s. 37 of Act of 2003 as, in the absence of a procedure before the courts of the issuing state for challenging the EAW, surrender would be incompatible with the State's obligations under the European Convention on Human Rights (“the ECHR”);
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(iii) Surrender is precluded by virtue of s. 21A of the Act of 2003 as surrender is not sought for the purposes of prosecution;
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(iv) Surrender is precluded by virtue of s. 37 of the Act of 2003 due to lapse of time and the impact surrender would have upon the respondent's private and family life, such that surrender would be incompatible with the State's obligations under the ECHR, and/or the application herein amounts to an abuse of process; and
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(v) Surrender is precluded due to an unacceptable level of ambiguity in the contents of the EAW.
It should be noted that there were 2 earlier European arrest warrants issued in respect of the respondent for the same alleged offences. A warrant was...
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