Minister for Justice & Equality v Ostrowski

• Jurisdiction: Ireland
• Judge: Denham C.J.,Mr Justice McKechnie,Mr. Justice MacMenamin
• Judgment Date: 15 May 2013
• Neutral Citation: [2013] IESC 24
• Court: Supreme Court
• Docket Number: Appeal No. 097/2012,[S.C. No. 97 of 2012]
• Date: 15 May 2013

Between

Minister for Justice and Equality

Applicant/Appellant

And

Jaroslaw Ostrowski

Respondent

[2013] IESC 24

Denham C.J., Murray J., O’Donnell J., McKechnie J., MacMenamin J.

Appeal No. 097/2012

THE SUPREME COURT

Extradition - European arrest warrant - Surrender - Proportionality - Trivial offence - Disruption to family life - European Arrest Warrant Act 2003 - European Convention on Human Rights

Facts: The High Court certified a question to the Supreme Court on whether the issue of proportionality was solely for consideration by the issuing judicial authority or whether it was relevant in considering whether to surrender the respondent. The entire family of the respondent resided in Ireland and he alleged that his surrender was prohibited by Article 8 ECHR.

Held The respondent was the subject of a European arrest warrant that was issued by Poland on the 7 ^th January 2009 due to an offence of possession of an illegal drug which he had allegedly committed on the 11 ^th May 2006. Although he was a Polish national, he had been residing in Ireland since 2004 with his family and was visiting Poland on holidays at the relevant time. He refused to surrender to Polish authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003 ("the 2003 Act"). On the 19 ^th March 2010, the High Court refused to surrender the respondent.

A second European arrest warrant was issued on the 15 ^th April 2010 but surrender was refused once again on the 8 ^th December 2011 on the basis that to do otherwise would be a disproportionate measure. In making this decision, the High Court referred to the fact that the respondent was unlikely to receive a custodial sentence and that there would be a significant disruption for his family life if surrendered. The appellant decided to appeal this decision, arguing that the issue of proportionality was a matter for the state issuing the European arrest warrant, and that it was not for the receiving courts to then determine when deciding whether to surrender an individual.

Held by Denham C.J. (with Murray J., O'Donnell J., McKechnie J. and MacMenamin J. concurring) that it was clear that the High Court had considered the offence the respondent had allegedly committed to be trivial. It was determined that once an offence was deemed to correspond to an offence in the receiving state, and that the court was satisfied the potential sentence met the requirements of the 2003 Act (i.e. at least 12 months imprisonment), it was not for the court to decide whether surrendering an individual under a European arrest warrant would be proportionate. This was the case in relation to the offence the respondent allegedly committed. It was pointed out that the 2003 Act was a mandatory enactment as a result of the Council of the European Union's Framework Decision on the European arrest warrant and surrender procedures between Member States.

It was further held that a refusal to surrender an individual under a European arrest warrant due to there being a potential of his or her Article 8 right under the European Convention on Human Rights by disrupting his or her family life would only be made in exceptional circumstances. The respondent's case was not considered exceptional in that regard therefore the issue of proportionality here was not deemed to arise. The respondent should therefore have been surrendered under the European arrest warrant.

Appeal allowed.

Denham C.J.

Judgment delivered on the 15th day of May, 2013, by Denham C.J.

1 Certified Question

2 1. On the 29th February, 2012, the High Court certified the following question for the consideration of this Court:-

“Is the issue of proportionality a matter solely for consideration by the issuing judicial authority when deciding whether to issue a European Arrest Warrant [hereinafter “EAW”], or is the High Court in Ireland entitled to consider proportionality at a point in time when it is considering whether to surrender a respondent on foot of an [EAW]?”

3 2. The Minister for Justice and Equality, the applicant/appellant is referred to as “the appellant”, and Jaroslaw Ostrowski, the respondent/respondent, is referred to as “the respondent”.

4 Chronology

5 3. The chronology of events is as follows:-

• In 2004 the respondent, his parents, brother and sister moved to Ireland. The respondent has lived here since then.

• On the 11th May, 2006, the alleged date of the offence, the respondent was visiting Poland on holidays. He lived at 9 St. John’s Court, Brennan’s Row, Limerick at that time.

• On the 27th November, 2006, the domestic order which underlies the EAW was issued by the District Court in Jelenia Góra.

• On the 7th January, 2009, the first EAW was issued by the District Court in Jelenia Góra.

• On the 22nd April, 2009, the first EAW was endorsed by the High Court.

• On the 19th October, 2009, the respondent was arrested and detained overnight in Henry Street, Garda Station on foot of the said EAW.

• On the 20th October, 2009, the respondent was brought before the High Court and admitted to bail.

• On the 26th January, 2010, additional information was received from the District Court in Jelenia Góra, which confirmed errors in the first EAW, and that they were corrected by a ruling on the 29th January, 2010.

• On the 19th March, 2010, the High Court (Peart J.) delivered judgment and refused to surrender the respondent.

• On the 15th April, 2010 the second EAW was issued by the District Court in Jelenia Góra.

• On the 27th April, 2010, additional information was received from the District Court in Jelenia Góra containing a photograph and fingerprints of the respondent.

• On the 28th April, 2010, the second EAW was endorsed by the High Court.

• On the 4th July, 2011, the respondent was arrested on foot of the second EAW by arrangement at the Criminal Courts of Justice, Dublin.

• On the 8th December, 2011, the s. 16 hearing on the second EAW was heard and judgment was reserved.

• On the 8th February, 2012, the High Court (Edwards J.) delivered judgment, refusing to surrender the respondent.

• On the 14th February, 2012, the appellant indicated a wish to appeal.

• On the 29th February, 2012, the point of law was certified by the High Court.

• On the 11th October, 2012, the Supreme Court heard the appeal.

6 The High Court Judgment

7 4. The learned High Court judge held:-

“The Court has carefully considered all of the circumstances of the case urged upon it by counsel for the respondent. Having done so, I have concluded that exceptionally, and in the particular circumstances of this case, it would not be a proportionate measure to surrender Mr. Ostrowski to Poland on foot of the second European arrest warrant in this case. In arriving at this conclusion the Court has been influenced by the following considerations.”

8 5. The High Court then referred to several matters, including the following: the High Court considered it inherently unlikely that the respondent would receive a custodial sentence if returned; the respondent would suffer further deprivation of his liberty if surrendered, if only while waiting on remand to be brought before a court in Poland; the respondent’s prospects of getting bail were reduced; the Polish authorities could have written to the respondent and informed him that the matter was not going to be dropped, and he could have been invited to return voluntarily. The High Court stated that it was inappropriate and not helpful to speculate on steps that might have been open to the Polish authorities, but that the respondent was not told of the second EAW, nor given the option of returning voluntarily before the second EAW was issued. The High Court referred to the delay between the endorsement by the High Court in April 2010, and the respondent’s arrest in July, 2011, which led to a false sense of security, and then increased stress and anxiety for the respondent. The High Court also took account of the burden to the respondent and his family of having, in the event of his surrender, to be repatriated to Poland in custody. The High Court held that to surrender the respondent would disrupt in a significant way his family life, and while interference in family life is only to be expected when a person faces a deprivation of liberty, it is usually a proportionate measure and not a breach of a respondent’s right to respect for his family life, but the learned High Court judge held:-

“However, this case has unusual features, and is arguably in a different category, in as much as the Court accepts that [the respondent] is unlikely to receive a custodial sentence if returned to Poland, and also that he is not a fugitive in the usual sense of that term.”

9 The High Court referred to the burden of expense of his family accompanying him to Poland, and of the further expense on this State and in the issuing state. The High Court took into account also the prosecution interests of the issuing state.

10 6. The High Court concluded:-

“Nevertheless, having weighed all of the relevant circumstances in the balance, and having afforded each circumstance its appropriate weight, I have not been satisfied overall that it would be a proportionate measure to order the surrender of the respondent on foot of the European arrest warrant presently before me. I have concluded rather that in the particular circumstances of the respondent’s case it would represent a disproportionate interference with his fundamental rights, and particularly his right to liberty, his right to enjoy physical and mental health, and his right to respect for family life, to surrender him at this time.

Conclusion

The Court upholds the specific objection based upon proportionality, and will refuse to make an order for the respondent’s surrender under s. 16 of the 2003...