Minister for Justice v D.L.

• Jurisdiction: Ireland
• Judgment Date: 22 June 2011
• Docket Number: [2008 No. 226 EXT]
• Date: 22 June 2011
• Court: High Court

[2011] IEHC 248,

High Court

[2008 No. 226 EXT]

Minister for Justice v. D.L.

The Minister for Justice, Equality and Law Reform

Applicant

and

D.L.

Respondent

Case mentioned in this report:-

Annibaldi Sindaco di Guidonia (Case C-309/96) [1997] E.C.R. I-7493; [1998] 2 C.M.L.R. 187.

B. v. District Courts in Trutnov and Liberic (Czech Judicial Authorities) [2011] EWHC 963 (Admin.), (Unreported, High Court, Silber J., 15th April, 2011).

Boultif v. Switzerland (App. No. 54273/00) (2001) 33 E.H.R.R. 1179.

Dalia v. France (App. No. 26102/95) (1998) 33 E.H.R.R. 625.

Edore v. Home Secretary [2003] EWCA Civ. 716, [2003] 1 W.L.R. 2979; [2003] All E.R. 1265.

ERT AE v. Pirofonssis (Case C-260/89) [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540.

Grant v. South West Trains Ltd. (C-249/96) [1998] E.C.R. I-621; [1998] 1 C.M.L.R. 993.

Z.H. (Tanzania) v. Home Secretary [2011] UKSC 4, [2011] 2 A.C. 166; [2011] 2 W.L.R. 148.

Karlsson, In re, (Case C-292/97) [2000] E.C.R. I-2737.

King v. United Kingdom (App. No. 9742/07) (Unreported, European Court of Human Rights, 26th January, 2010).

Launder v. United Kingdom (App. No. 27279/95) (1997) 25 E.H.R.R. CD 67.

Massey v. United Kingdom (App. No. 14399/02) (Unreported, European Court of Human Rights, 8th April, 2003).

Mehemi v. France (App. No. 25017/94) [1997) 30 E.H.R.R. 739.

Minister for Justice, Equality and Law Reform v. Adam[2011] IEHC 68, (Unreported, High Court, Edwards J., 3rd March, 2011).

Minister for Justice, Equality and Law Reform v. Adam[2011] IEHC 87, (Unreported, High Court, Edwards J., 10th March, 2011).

Minister for Justice, Equality and Law Reform v. Bednarczyk[2011] IEHC 136, (Unreported, High Court, Edwards J., 5th April, 2011).

Norris v. Government of the United States of America[2009] EWHC 995 (Admin), (Unreported, Divisional High Court, 15th May, 2009).

Norris v. Government of the United States of America (No. 2) [2010] UKSC 9, [2010] 2 A.C. 487; [2010] 2 W.L.R. 572; [2010] All E.R. 267.

In re O Laighleis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.

Pfizer Animal Health v. Council (Case T-13/99)[2002] E.C.R. II-3305.

R. (H.H.) v. Deputy Prosecutor of the Italian Republic[2011] EWHC 1145 (Admin.), (Unreported, High Court, Laws L.J., 11th May, 2011).

R. (P.) v. Home Secretary [2001] EWCA Civ. 1151, [2001] 1 W.L.R. 2002.

R. (Warren) v. Secretary of State for the Home Department [2003] EWHC 1177 (Admin), (Unreported, High Court, Hale L.J., Moses J., 14th March, 2003).

R. (Wellington) v. Home Secretary [2008] UKHL 72, [2009] 1 A.C. 335; [2009] 2 W.L.R. 48; [2009] 2 All E.R. 436.

Raidl v. Austria (App. No. 25342/94) (1995) 20 E.H.R.R. CD 114.

Üner v. The Netherlands (App. No. 46410/99) (2007) 45 E.H.R.R. 421.

Van den Bergen Jurgens v. Commission (Case 265/85)[1987] 2 E.C.R. 1155.

Wachauf v. Bundesamt für Ernährung (Case 5/88)[1989] 4 E.C.R. 2609; [1991] 1 C.M.L.R. 328.

Extradition - European arrest warrant - Surrender - Postponement - Humanitarian grounds - Gravity of humanitarian grounds - Prejudice to child of respondent - Public interest in extradition - Best interests of child - Whether harm to child of respondent sufficient ground for postponement of surrender - Whether gravity threshold of serious humanitarian considerations met - Whether Charter of Fundamental Rights applicable in European arrest warrant proceedings - European Arrest Warrant Act 2003 (No. 45), ss. 16, 18(1), 18(2), 18(3), 37 and 45 - Council Framework Decision 2002/584/JHA, article 23(4) - Charter of Fundamental Rights of the European Union, article 24 - European Convention on Human Rights 1950, article 8 - United Nations Convention on the Rights of the Child 1989, article 3.1.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of Edwards J., infra.

A motion seeking postponement of the respondent's surrender on humanitarian grounds was heard on the 31st May, 2011. An order refusing the respondent's application was made on the 1st June, 2011, with the reasons reserved.

Section 18 of the European Arrest Warrant Act 2003 provides,inter alia, as follows:-

"(1) The High Court may, if satisfied that circumstances exist that would warrant the postponement, on humanitarian grounds, of the surrender to the issuing state of a person to whom an order undersection 15 or 16 applies, direct that the person's surrender be postponed until such date as the High Court states that, in its opinion, those circumstances no longer exist.

(2) Without prejudice to the generality of subsection (1), circumstances to which that paragraph applies include a manifest danger to the life or health of the person concerned likely to be occasioned by his or her surrender to the issuing state in accordance with section 15(5) or 16(5)."

Article 23(4) of Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states provides, inter alia, as follows:-

"The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health …"

The respondent was the subject of an order pursuant to s. 16 of the European Arrest Warrant Act 2003 that he be surrendered to Poland to serve a prison sentence of two years and six months. His daughter N., who was born on the 2nd January, 2004, and who was at the time of the order resident in Ireland with the respondent and his wife, suffered from serious medical conditions for which she was being treated in Ireland. The respondent sought to have his surrender to the Polish authorities postponed on humanitarian grounds pursuant to s. 18 of the Act of 2003, claiming that his daughter would be very distressed if separated from him and would suffer an aggravation of her medical conditions.

Held by the High Court (Edwards J.), in refusing the application for postponement, 1, that an applicant for postponement of surrender had to adduce evidence of humanitarian grounds warranting the postponement.

2. That the term "humanitarian" connoted a prejudice that impinged upon some fundamental personal right of the subject individual to the extent of threatening his or her core well being, or very existence as a human being or some aspect of the individual's human condition or identity. The examples of humanitarian grounds given in s. 18 of the Act of 2003 were indicative and were not definitive.

3. That prejudice need not be personal to the requested person and where article 8 was engaged, a potential prejudice of a humanitarian nature to a spouse or a child or other family member of the requested person could be relied upon in a postponement application. This required a specific serious prejudice to an individual family and not merely an alleged failure to respect family life.

4. That, while the Act of 2003 did not establish a gravity threshold for the humanitarian grounds identified, the Framework Decision did require that they be "serious humanitarian reasons".

Minister for Justice, Equality and Law Reform v. Adam (No. 2) [2011] IEHC 87, (Unreported, High Court, Edwards J., 10th March, 2011) considered.

5. That the requirement that postponement be warranted in the circumstances of the humanitarian considerations shown required a proportionality analysis between the predicament of the individual the subject of the European arrest warrant order on one hand, and the public interest, which was systematically served by extradition being carried into effect, on the other. Thus for postponement to be warranted, it had to be demonstrated that the humanitarian grounds relied upon were so grave and of such a serious nature, and that the desirability of avoiding the apprehended prejudice was so compelling, as to render postponement the only effective option.

Norris v. Government of the United States of America (No. 2) [2010] UKSC 9, [2010] 2 A.C. 487, B. v. District Courts in Trutnov and Liberic (Czech Judicial Authorities)[2011] EWHC 963 (Admin.), (Unreported, High Court, Silber J., 15th April, 2011) and R. (H.H.) v. Deputy Prosecutor of the Italian Republic [2011] EWHC 1145 (Admin.), (Unreported, High Court, Laws L.J., 11th May, 2011) approved.

6. That, in assessing whether a postponement was warranted, the court was obliged by the jurisprudence of the European Court of Human Rights to have regard to the interests of the child as "a" primary consideration. However, the child's best interests were not "the" primary consideration and could not generally override the public interest in effective extradition procedures.

• R. (H.H.) v. The Deputy Prosecutor of the Italian Republic, Genoa (Italian Judicial Authorities) [2011] EWHC 1145 (Admin.), (Unreported, High Court, Laws L.J., 11th May, 2011) considered.

Obiter dictum: Where the Charter of Fundamental Rights of the European Union enumerated a right, it could be relied upon in the context of European extradition warrant proceedings as giving rise to a direct claim for positive action. This was despite the Charter applying prospectively only, because when a court operated under the Act of 2003 (which incorporated the Framework Decision) it was acting within the scope of European law. However, article 24(2) of the Charter, on which the respondent sought to rely in this case, contained an expression of principle rather than a right, which could be used to interpret or review legislation or actions but did not give rise to a claim for positive action.

Minister for Justice, Equality and Law Reform v. Adam (No. 1) [2011] IEHC 68, (Unreported, High Court, Edwards J., 3rd March, 2011) approved.

Cur. adv. vult.

Edwards J. 22nd June, 2011

Introduction

[1] The respondent in these proceedings (and the applicant/moving party in the present motion) is the subject of a European arrest warrant issued by the Republic of Poland on the 27th August, 2008...