Minister for Justice & Equality v Ostrowski

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 08 February 2012
• Neutral Citation: [2012] IEHC 57
• Date: 08 February 2012
• Court: High Court

[2012] IEHC 57

THE HIGH COURT

Record No. 161 EXT/2010

Min for Justice v Ostrowski

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE AND LAW REFORM

Applicant

- AND -

JAROSLAW OSTROWSKI

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S45

MISUSE OF DRUGS ACT 1977 S3

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 3) ORDER 2004 SI 206/2004 SCHED ART 2

MIN FOR JUSTICE v OSTROWSKI UNREP PEART 19.3.2010 2010/35/8935 2010 IEHC 200

COUNTERACTING DRUG ADDICTION ACT 2005 ART 62(3) (POLAND)

CRIMINAL CODE OF POLAND ART 62.1

MIN FOR JUSTICE v FALLON 2011 2 ILRM 1 2010/35/8816 2010 IESC 37

MIN FOR JUSTICE v KONCIS UNREP SUPREME 29.7.2011 2011 IESC 37

MIN FOR JUSTICE v GORMAN 2010 3 IR 583

ASSANGE v SWEDISH PROSECUTION AUTHORITY UNREP EWHC 2.11.2011 2011 EWHC 2849 (ADMIN)

GENERAL PROSECUTION SERVICE v C 25.2.2010 1 AUSL (24)1246/09

VOGEL & SPENCER PROPORTIONALITY & THE EUROPEAN ARREST WARRANT 2010 CRIM LR 474

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

FARRELL & HANRAHAN THE EUROPEAN ARREST WARRANT IN IRELAND 2011 177

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(1)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(i)

MISUSE OF DRUGS ACT 1977 S3

MIN FOR JUSTICE v BEDNARCZYK UNREP EDWARDS 5.4.2011 2011 IEHC 136

MIN FOR JUSTICE v ZIGELIS UNREP EDWARDS 17.1.2012 2012 IEHC 12

NORRIS v GOVT OF THE UNITED STATES OF AMERICA (NO2) 2010 2 AC 487

R (HH) & ANOR v WESTMINSTER CITY MAGISTRATES COURT 2011 ACD 94 2011 EWHC 1145 (ADMIN)

MIN FOR JUSTICE & ORS v L (D) 2011 3 IR 145 2012 1 ILRM 270 2011/36/10186 2011 IEHC 248

EXTRADITION LAW

European Arrest Warrant

Gravity of offence - Possession of very small quantity of marijuana - Conduct of de minimus nature - Whether unjust and disproportionate interference with constitutional and convention rights - Second warrant - Possibility of issuing second warrant - Issue of proportionality - Obligation on issuing authority to conduct proportionality check prior to issuing second warrant - Principles of mutual trust and confidence between member states - Judicial cooperation and mutual recognition of judicial actions - Presumption that issuing authority acted in good faith - Separate entitlement of executing judicial authority to consider issue of proportionality - Whether execution of warrant proportionate - Minimum gravity requirement - Inherent unlikelihood of custodial sentence - Absence of notification prior to issuing of second warrant - Absence of opportunity to return voluntarily - Stress and anxiety - Minister for Justice, Equality and Law Reform v Ostrowski [2010] IEHC 200, (Unrep, Peart J, 19/3/2000); Minister for Justice, Equality and Law Reform v O Fallúin [2010] IESC 37, (Unrep, SC, 19/5/2010); Minister for Justice, Equality and Law Reform v Koncis [2011] IESC (Unrep, SC, 29/7/2011); ES v Judges of Cork Circuit Court [2008] IESC 37, (Unrep, SC, 10/6/2008); Minister for Justice, Equality and Law Reform v Gorman [2010] IEHC 210, [2010] 3 IR 583; Assange v Swedish Prosecution Authority [2011] EWHC 2849; General Prosecution Service v C (1 Ausl (24) 246.09); Minister for Justice, Equality and Law Reform v Bednarczyk [2011] IEHC 137, (Unrep, Edwards J, 5/4/2011); Minister for Justice, Equality and Law Reform v Zigelis [2012] IEHC 12, (Unrep, Edwards J, 17/1/2012); Norris v Government of United States of America (No 2) [2010] AC 487; R(HH) v Deputy Prosecutor of Italian Republic [2011] EWHC 1145; Minister for Justice, Equality and Law Reform v DL [2011] IEHC 248, (Unrep, Edwards J, 22/6/2011) considered - European Arrest Warrant Act 2003 (No 45), s 37 - Surrender refused (2012/161EXT - Edwards J - 8/2/2012) [2012] IEHC 57

Minister for Justice and Equality v Ostrowski

Facts The respondent did not consent to his surrender on foot of a second European arrest warrant (EAW) issued by the Republic of Poland. The warrant was issued for the purposes of prosecuting the respondent for the offence of possession of a very small quantity of maijuana. The alleged offence occurred when the respondent, who is a Polish national residing in Ireland returned to Poland for a holiday. The respondent raised two particular objections to his surrender, namely: 1. that the request for surrender involved conduct of a de minimis nature; 2. that the surrender was prohibited by s. 37 of the European Arrest Warrant Act 2003 in that the surrender of the respondent would cause an unjust and disproportionate interference with his constitutional and Convention rights and his rights under European Union law. The respondent moved to Ireland with his family in 2004 and when he was questioned about the alleged offence in Poland he supplied the police with his Irish address. The respondent averred that it was unlikely he would receive a sentence of 12 months imprisonment, which is the maximum sentence for the offence the subject matter of the warrant. The respondent was the subject of a previous EAW in respect of the same offence and the application for his surrender was refused due to errors within the warrant. The respondent submitted that it would be disproportionate to order his surrender on foot of the second EAW. Counsel for the respondent submitted that there was no evidence before the court to suggest that the issuing State gave the issue of proportionality any consideration before issuing the second EAW. It was also submitted that prior to this court ordering the surrender of the respondent it must, having taken account of all the relevant circumstances, be satisfied that to do so would be proportionate to the legitimate aim being pursued by the issuing State.

Held by Edwards J. in refusing the application: That it was not open to the respondent to invite this court to conclude that the issuing judicial authority failed to carry out the required proportionality check before issuing the warrant. It was presumed that the issuing judicial authority acted in good faith and in accordance with its legal obligations. However, this court was also required to consider whether it was proportionate in all the circumstances of the case to order the surrender of the respondent. Having regard to the fact that it was inherently unlikely the respondent would receive a custodial sentence for the offence the subject matter of the warrant and having regard to the particular circumstances and unusual features of this case, it would not be a proportionate measure to surrender the respondent to Poland on foot of the second European arrest warrant. In the circumstances of this case, the surrender of the respondent would represent a disproportionate interference with his fundamental rights, and in particular his right to liberty, his right to enjoy physical and mental health, and his right to respect for family life.

Reporter: L.O'S

1 JUDGMENT of Mr. Justice Edwards delivered on the 8th day of February, 2012

1. Introduction:

2 The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 15 ^th of April, 2010 in order that he might be prosecuted for the single offence particularised in the warrant. The offence in question relates to the alleged possession by the respondent of a very small quantity (0.72 grams) of marijuana. The warrant was endorsed for execution by the High Court in this jurisdiction on the 28 ^th of April, 2010. The respondent was arrested at the Courts of Criminal Justice, Dublin, on the 4 ^th of July, 2011 by Garda Niamh Brosnan and was brought before the High Court in the normal way pursuant to s. 13 of the European Arrest Warrant Act, 2003 (hereinafter referred to as "the Act of 2003"). At the s. 13 hearing the Court fixed a date for the purposes of s. 16 of the Act of 2003, and the respondent was admitted to bail pending the s. 16 hearing taking place. The matter was then adjourned from time to time until coming before the Court on the 8 ^th of December, 2011 for the hearing of the s. 16 application.

3 The respondent does not consent to his surrender to the Republic of Poland. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the Act of 2003, as amended, directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s. 16 of the 2003 Act.

4 The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as no admissions have been made, the Court is put on inquiry as to whether all of the requirements of s. 16 of the 2003 Act, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied. In addition the Court is required to consider in the particular circumstances of this case two specific objections to the respondent's surrender, namely:

5 (i) that the respondent's surrender ought to be refused in circumstances where the request for surrender involves conduct of a de minimis nature;

6 i (ii)that the surrender of the respondent is prohibited by s. 37 of the Act of 2003 in that to surrender the respondent would cause an unjust and disproportionate interference with the...