Minister for Justice, Equality &; Law Reform v Rettinger

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date07 May 2010
Neutral Citation[2010] IEHC 206
CourtHigh Court
Date07 May 2010

[2010] IEHC 206

THE HIGH COURT

Record Number: No. 141 Ext./2009
Min for Justice v Rettinger

Between:

The Minister for Justice, Equality and Law Reform
Applicant

And

Robert Rettinger
Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

SOERING v UNITED KINGDOM 1989 11 EHRR 439

SAADI v ITALY 2009 49 EHRR 30 24 BHRC 123 2008 IMM AR 519 2008 INLR 621

ORCHOWSKI v POLAND UNREP ECHR 22.10.2009 (APPLICATION NO 17885/04)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EXTRADITION

European arrest warrant

Prison conditions - Inhumane and degrading- Overcrowding - Prospective assessment of potential for breach - Speculation as to future conditions - Onus on applicant - Whether cogent and compelling evidence - Whether surrender in breach of State's obligations under European Convention on Human Rights - Soering v UK (1989) 11 EHRR 439 and Saadi v Italy (2009) 49 EHRR 30 considered; Orchowski v Poland Case No 17885/04 (Unrep, ECHR, 22/10/2009) distinguished - European Arrest Warrant Act 2003 (No 45), s 37 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50) s 12 - Surrender ordered (2009/141Ext - Peart J - 07/05/2010) [2010] IEHC 206

Minister for Justice, Equality and Law Reform v Rettinger

Facts: The surrender of the respondent was sought on foot of a European arrest warrant issued in Poland so that the respondent could serve a sentence of two years imprisonment, a portion of which was already served. The single issue relied upon by the respondent to object to surrender was that an order for surrender would give rise to a breach of the State's Article 3 ECHR obligations on account of the prison conditions in Poland. The issue arose also as to the interpretation of certain caselaw of the European Court of Human Rights and the evidence given on affidavit as to prison conditions in Ireland and a particular report exhibited therewith, as well as to the standard of proof and the applicable burden of proof.

Held by Peart J. that while there was no reason to cast doubt on the respondents assertions or to suggest that he had exaggerated prison conditions, it was another matter to reach a conclusion in the present case which would mean that until the Court was satisfied by evidence that prison conditions had substantially improved, that no person sought by Poland on foot of a European arrest warrant could be surrendered. The conditions described were not sufficient to establish that there was a real risk that his Article 3 rights would be breached. The Court had to be forward looking in its considerations. Any reliance on Article 8 ECHR could not succeed in light of the findings of the Court as to Article 3. The Court would make the order for surrender sought.

Reporter: E.F.

1

Mr Justice Michael Peart delivered on the 7th day of May 2010:

2

The surrender of the respondent is sought on foot of a European arrest warrant which issued in Poland on the 23 rd September 2008. That warrant was endorsed for execution here on the 10 th June 2009, and in due course on the 13 th August 2009 he was arrested on foot of same and brought before the High Court as required by s. 13 of the European Arrest warrant Act, 2003, as amended ("the Act").

3

Surrender is sought so that the respondent can serve a sentence of two years' imprisonment which was imposed upon him on the 2 nd August 2007 following his conviction in respect of one offence of burglary. Of that sentence, a period of 205 days has already been served, apparently while in pre-trial detention. There would appear to be 525 days or almost 18 months remaining to be served, less any remission if such applies in Poland.

4

No issue is raised in relation to correspondence, but it is easy in any event to be satisfied from the facts contained in the warrant that if the same act was done in this State it would amount to an offence of burglary contrary to section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. Minimum gravity is satisfied by reference to the length of sentence imposed in respect of this offence.

5

It is not contended that the respondent was not present for his trial and conviction, and I am satisfied that no undertaking is required under s. 45 of the Act.

6

I am satisfied that there is no reason to refuse to order surrender by reason of any provision of sections 21A, 22, 23 or 24 of the Act, and subject to reaching a conclusion in relation to the single issue raised by way of objection to surrender, I am satisfied that there is no reason why surrender is prohibited either by a provision of Part III of the Act or the Framework Decision.

The issue - prison conditions in Poland:
7

The single issue relied upon by the respondent is that an order for surrender would give rise to a breach of the State's obligations under Article 3 of the European Convention on Human Rights, having regard to the prison conditions in Poland, and that under s. 37 of the Act his surrender should be prohibited.

8

Anthony Collins SC for the respondent accepts that there is a high onus upon a respondent who wishes to put forward an objection of this kind under s. 37 of the Act, and that it must be established by way of cogent and compelling evidence that surrender would constitute a real and serious risk of a breach of rights under the Convention if his surrender is to be ordered. But he submits that the onus is upon the respondent only to the extent that he must by such evidence satisfy the Court as to this matter on the balance of probabilities, and not to the point of mathematical certainty.

9

The section itself states as relevant:

10

2 "37.-(1) A person shall not be surrendered under this Act if-

11

(a) his or her surrender would be incompatible with the State's obligations under-

12

(i) the Convention, or

13

(ii) the Protocols to the Convention ...."

14

The State's obligations arise firstly from the obligation to which this State has submitted in Article 1 of the Convention which provides:

"The High Contracting parties shall procure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention."

15

One of those rights and freedoms appears in Article 3 which provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

16

Mr Collins has submitted that this Article is engaged in extradition proceedings where there is shown to be a risk of such treatment in the issuing state if the person were to be surrendered. He has referred to the test to be applied as set forth in Soering v. The United Kingdom [1989] 11 EHRR 439 where at paragraph of its judgment the Court stated:

"… the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of the State under the Convention, where substantial grounds have been shown for believing that the person concerned if extradited would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country."

17

In Saadi v. Italy, Application No. 37201/06, 28 th February 2008, the Court of Human Rights set out certain principles which are applicable to a court's examination of risk under Article 3. Mr Collins has referred to these principles, even though Saadi was a deportation case rather than extradition. Those principles appear at paras.128-133 of the Court's judgment:

18

2 " 128. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu. …… .... In cases such as the present the Court's examination of the existence of a real risk must necessarily be a rigorous one …… ....

19

129. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3…… .... Where such evidence is adduced, it is for the Government to dispel any doubts about it.

20

130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances.

21

131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department ……… At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3……… and that, where the sources available to it describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence…… ....

22

132. …… .... [not relevant]

23

133. With regard to the material date, the existence...

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