Minister for Justice, Equality &; Law Reform v Rettinger

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Fennelly
• Judgment Date: 23 July 2010
• Neutral Citation: [2010] IESC 45
• Court: Supreme Court
• Docket Number: [S.C. Nos. 165 and 189 of 2010]
• Date: 23 July 2010

Min for Justice v Rettinger

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Robert Rettinger

Respondent/ Appellant

[2010] IESC 45

Denahm J.

Fennelly J.

Finnegan J.

[Appeal No: 165 & 189 of 2010]

THE SUPREME COURT

EXTRADITION

European arrest warrant

Surrender - Torture and inhuman or degrading treatment - Prohibition against surrender where reasonable grounds for believing person will be tortured or subjected to other inhuman or degrading treatment - Test - Burden of proof - Standard of proof - Whether burden shifts to requesting state after evidence produced of reasonable grounds - Whether necessary to prove that torture or ill treatment probable - Saadi v Italy (2009) 49 EHRR 30 and Soering v UK (1989) 11 EHRR 439 and Mamatkulov v Turkey (2005) 41 EHRR 25 followed; Minister for Justice v Brennan [2007] IESC 21, [2007] 3 IR 732, Minister for Justice v Busjeva [2007] IEHC 341, [2007] 3 IR 829, Minister for Justice v Stapleton [2007] IESC 30, [2008] 1 IR 669 and Minister for Justice v Stankiewicz [2009] IESC 79, (Unrep, SC, 1/12/2009) distinguished - European Arrest Warrant Act 2003 (No 45), s 37(1) - European Convention on Human Rights, article 3 - Respondent's appeal allowed; remitted to HC for rehearing (165 & 189/2010 - SC - 23/7/2010) [2010] IESC 45

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 respondent contended that s. 37 of the European arrest warrant Act 2003 precluded the surrender of an individual where the surrender gave rise to a breach of Article 3 ECHR and the issue arose as to the standard of proof and the applicable burden of proof. 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 Polandand a particular report exhibited therewith. The warrant was duly endorsed by the High Court for execution in 2009 after the High Court found the evidence proffered insufficient, identifying a difficultly between the inevitable breach of rights if the person surrendered had to face a higher probative test. The High Court had acceded to the application that he certify pursuant to s. 16(12) of the Act of 2003, as amended by s. 12 Criminal Justice (Miscellaneous Provisions) Act 2009. A point of law of exceptional public importance was certified to the Supreme Court as to the onus of proof on the applicant to adduce evidence where a respondent relied on s.37(1)(a) to prevent his surrender by reason of an apprehended breach of his rights pursuant to Article 3 ECHR and whether the respondent was required to prove that he would suffer such treatment or whether proof on the balance of probabilities of a real risk of suffering such treatment sufficed. The applicant/ respondent made a notice to vary on the question of the finding of the trial judge as to his beliefs that the respondent / appellant had not exaggerated prison conditions in which he was held.

Held by the Supreme Court (Denham, Fennelly & Finnegan JJ.) that the entire application would be remitted to the High Court for reconsideration in light of the appropriate standard of proof as explained by the Court. Per Denham J (Fennelly & Finnegan JJ concurring): A Court should consider all material before it and if necessary material obtained of its own motion, should examine whether there is a real risk in a rigorous examination. The burden existed on an applicant to adduce evidence capable of proving substantial grounds that they would be exposed to a real risk of treatment contrary to Article 3 ECHR, considering further evidence that night dispel this contention as well as considering the foreseeable consequences of sending a person to the requesting State and considering international reports. Per Fennelly J. that the inevitable consequence of the principle of absoluteness was that the system of surrender could not be invoked to defeat a real risk of ill-treatment contrary to ArticLe 3 ECHR. This did not presuppose any conflict between the Convention and the Framework Decision. The time for consideration of the existence of "real risk" was at the time of the likely surrender to Poland. It was absurd to require proof of probability and "real risk" sufficed. The wording of the Act of 2003 demonstrated this much. The notice to vary would be dismissed. The appeal would be allowed.

Reporter: E.F.

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN ARREST WARRANT ACT 2003 S16(12)

MIN FOR JUSTICE v RETTINGER UNREP PEART 7.5.2010 2010 IEHC 206

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)

EUROPEAN ARREST WARRANT ACT 2003 S37

SOERING v UNITED KINGDOM 1989 11 EHRR 439

MAMATKULOV & ASKAROV v TURKEY 2005 41 EHRR 25 18 BHRC 203

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)

SIKORSKI v POLAND UNREP ECHR 9.11.2004 (APPLICATION NO 46004/99)

IMMIGRATION & NATURALIZATION SERVICE v CARDOZA-FONSECA 1987 480 US 421

CHAHAL v UNITED KINGDOM 1997 23 EHRR 413 1 BHRC 405

EUROPEAN ARREST WARRANT ACT 2003 PART III

US DEPT OF STATE 2009 HUMAN RIGHTS REPORT: POLAND 11.3.2010

CONSTITUTION ART 40.3.2

EUROPEAN ARREST WARRANT ACT 2003 S20

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S12

MIN FOR JUSTICE v STANKIEWICZUNREP SUPREME 1.12.2009 2009/40/9821 2009 IESC 79

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577

MIN FOR JUSTICE v BUSJEVA 2007 3 IR 829 2007/40/8295 2007 IEHC 341

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(C)(iii)(II)

MIN FOR JUSTICE v TOBIN 2008 4 IR 42

MIN FOR JUSTICE v BRENNAN 2007 IR 3 732 2007/40/8282 2007 IESC 21

MIN FOR JUSTICE v BRENNAN UNREP PEART 14.3.2006 2006/39/8376 2006 IEHC 94

EXTRADITION ACT 1965

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)(F)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 10

TREATY ON EUROPEAN UNION ART 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1(3)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(C)

1 Judgment delivered by the 23rd day of July, 2010 by Denham J.

2 Judgment delivered by Denham J, Fennelly J, Finnegan J concerning with both

3 1. In this appeal the Court has been asked to consider rights under Article 3 of the European Convention on Human Rights, referred to in this judgment as the "ECHR", and their effect on an application pursuant to a European Arrest Warrant for the surrender of a person to Poland to serve the balance of a prison sentence.

4 2. The Polish authorities issued a European Arrest Warrant seeking Robert Rettinger, the respondent/appellant, referred to in this judgment as "the appellant", which was endorsed by the High Court for execution in this jurisdiction on the 10 ^th day of June, 2009. The appellant was arrested on the 13 ^th August, 2009, and has been remanded in custody, with consent to bail, ever since.

5 3. The surrender of the appellant to Poland is sought so that he may serve the balance of a two year sentence which was imposed for the offence of burglary.

6 4. The appellant has served 203 days in pre-trial detention in Poland. He has been in custody in Ireland since the 13 ^th August, 2009.

7 5. There was a delay in hearing the case in the High Court. The case was listed for hearing on the 1 ^st December, 2009, but on that morning the appellant's solicitor applied successfully to come off record and a new legal team was appointed. Amended points of objection were served and the case was listed for hearing on the 13 ^th April, 2010, when the matter proceeded. Judgment was delivered on the 7 ^th May, 2010. On the 20 ^th May, 2010, the High Court granted a certificate of leave to appeal to this Court.

Points of Law

8 6. Pursuant to section 16(12) of the European Arrest Warrant Act 2003, as amended, the High Court (Peart J.) certified the following two points of law as arising from this application:-

9 a "(a) Where [an applicant] relies upon section 37(1)(a) of the European Arrest Warrant Act 2003 in order to prevent his surrender to a requesting State by reason of an apprehended breach of his rights under Article 3 of the European Convention on Human Rights and adduces evidence capable of establishing substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 were he to be surrendered, does the onus of proof then shift back to [the Minister] to adduce evidence in order to dispel any doubts as to the treatment [the applicant] would face if surrendered?

10 (b) Where [an applicant] relies upon section 37(1)(a) of the European Arrest Warrant Act 2003 in order to prevent his surrender to a requesting State by reason of an apprehended breach of his rights under Article 3 of the European Convention on Human Rights, is [the applicant] required to prove that there is a probability that, if surrendered, he will suffer treatment contrary to ...