Supreme Court holds proportionality is solely for issuing authority, not High Court when considering surrender on EAW.

THE SUPREME COURT

Appeal No. 097/2012

Denham C.J.

Murray J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Between/

Minister for Justice and Equality

Applicant/Appellant

And

Jaroslaw Ostrowski

Respondent

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

Certified Question

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]?”

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”.

Chronology

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.

The High Court Judgment

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.”

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.”

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.

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 Act.”

7. The High Court then heard the application for a certificate to appeal to this Court on a point of law of exceptional public

importance, and granted the application; the certificate granted being in the terms set out in the first paragraph of this judgment.

Law

Framework Decision

8. On the 13th June, 2002, the Council of the European Union adopted a Framework Decision on the European arrest warrant and

surrender procedures between Member States, referred to as “the Framework Decision”.

9. The EAW was defined in Article 1 as being a judicial decision issued by a Member State with a view to the arrest and surrender by

another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence

or detention order.

10. The obligation to execute was stated in Article 1.2 as follows:-

“Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in

accordance with the provisions of this Framework Decision”.

Thus, this scheme envisages mandatory execution of the EAW, in accordance with the Framework Decision.

11. Article 3 sets out grounds for mandatory non-execution of an EAW. Such grounds do not arise in this case.

12. Article 4 relates to grounds for optional non-execution of the EAW, which do not arise in this case either.

Statute

13. The European Arrest Warrant Act, 2003 is an act to give effect to the Framework Decision. It was amended by the Criminal

Justice (Terrorist Offences) Act 2005 and the Criminal Justice (Miscellaneous Provisions) Act 2009 at the time of the High Court

hearing in this case. The European Arrest Warrant Act, 2003, as amended by those Acts is referred to as “the Act of 2003”. A further

amendment under the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act

2012 became law on the 24th July, 2012. Section 10 of the Act of 2003 provides:-

“Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person—

(a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates,

(b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,

(c) who has been convicted of, but not yet sentenced in respect of, an offence in that State to which the European

arrest warrant relates, or

(d) on whom a sentence of imprisonment or detention has been imposed in that State in respect of an offence to which

the European arrest warrant relates,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested

and surrendered to the issuing state.”

[Emphasis added.]

14. The provisions of the statute set out the requirements for an EAW. In this case there is no issue arising on the form of the EAW

or on the procedure adopted.

15. Under s. 16 of the Act of 2003, the circumstances under which the High Court may direct the surrender of a person on an EAW

are stated, with certain provisos. Relevant to this case is s. 16(2)(d), which states that the High Court may make an order directing

the person’s surrender provided that:-

“The surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).”

16. Part 3 of the Act of 2003 sets out the prohibitions on surrender. Thus, s. 37 states:

“(1) A person shall not be surrendered under this Act if—

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

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution (other

than for the reason that the offence specified in the European arrest warrant is an offence to which

section 38 (1)(b) applies)

…”

The Convention referred to in s. 37 of the Act of 2003 is the European Convention for the Protection of Human Rights and

Fundamental Freedoms.

The EAW

17. Under the EAW the respondent is sought by way of a decision of the District Court in Jelenia Góra for trial on one offence. That

offence is described as that on the 11th May, 2006, in Wroclaw, acting in violation of the law, he was in possession of psychotropic

agents in the form of marijuana – 0.72 grams of the net weight being an offence under Art. 62 §1 of the Drugs Abuse Prevention Act

issued on the 29th July, 2005. In indicating the length of sentence, it is stated that the upper limit of imprisonment for the offence is

three years.

The Decision

18. No issue arises in this case on the form of the EAW.

The Issue

19. The issue before the Court is that set out in the certified question, being whether proportionality is a matter solely for

consideration by the issuing judicial authority when deciding whether to issue an EAW, or whether the High Court is entitled to

consider proportionality when it is considering whether to surrender a respondent on foot of an EAW.

Issuing Judicial Authority

20. The certified question makes the assumption that an issuing judicial authority when deciding whether to issue an EAW considers

proportionality. That is a matter for an issuing state and does not arise for consideration in this case. From experience I would not

assume that in every member state an issuing judicial authority considers whether it is proportionate to issue an EAW. However, that

is a matter for another forum.

21. The Framework Decision and the national Acts implementing that decision, in this case the Act of 2003, introduced a new form of

surrender between member states. It was to be a simpler and faster form of extradition based on mutual trust and respect between

judicial authorities of the member states.

Executive decided and Oireachtas legislated

22. The Framework Decision, a form of legislative measure, was adopted by the Council of the European Union, and all Member States

have an obligation to implement the decision in national law so as to achieve the results specified by the Decision. The Oireachtas did

this by means of the Act of 2003, as subsequently amended.

23. It is the responsibility of the Courts to implement and apply the Act of 2003. The Court is required to surrender a person sought

to be surrendered under the Act of 2003 as long as the provisions of that Act are complied with, which includes the provisions in s. 37

that the surrender is not incompatible with the State’s obligations under the Convention or in contravention of the Constitution.

Triviality

24. In this case the High Court clearly considered the offence trivial. It has arisen in other cases that an EAW process has been used

by an issuing State to request the surrender of a person for a trivial offence.

25. However, once an offence is a corresponding offence, and the potential sentence meets the requirements of the Act of 2003, the

question of whether or not the offence is trivial is not a matter for the High Court.

26. The Framework Decision and the Act of 2003 establish the permitted scope of an EAW. Article 2 of the Framework Decision sets

out the punishable offences for which an EAW may be issued. This is reflected in the Act of 2003. This identifies the offences which

may be surrendered in the new extradition system established by the member states.

27. The Framework Decision might, at least to some degree, be said to have addressed a proportionality question in this context in

providing for what has been called the minimum gravity test with regard to offences which fall within the ambit of the Decision. This is

reflected in s.38(1)(a)(i) of the Act of 2003, the effect of which is that a person may only be surrendered on foot of an EAW for the

purposes of being prosecuted if the offence for which surrender is sought is subject to a maximum sentence of at least 12 months .

All other offences which attract a maximum sentence of less than that amount may not be made the subject of a European Arrest

Warrant.

28. The EAW in this case meets the requirements as to the scope of a warrant and the potential punishment provided for in the Act

of 2003. No issue arose on these legal requirements.

29. The High Court has no role to look at possible sentences which might be awarded in an issuing State when a person is surrendered

and to consider whether such a sentence is proportionate. It might also be observed that it would be virtually impossible in the vast

majority of cases for the High Court or any national court to ascertain the likely sentence to be imposed by a court in the requesting

state in all the circumstances of a particular case even if, in a minority of cases, that might be thought possible.

30. Once an EAW meets the minimum gravity test for an offence set out in the Framework Decision and the Act of 2003, it is not for

the High Court to create and apply a proportionality test to a potential sentence.

31. The matter of member states issuing EAWs for trivial offences is a matter which may be addressed. However, it cannot be

addressed by the courts exercising a proportionality test. It is an issue which should be addressed in another forum.

Convention

32. The EAW arises in a system of surrender which has been established between member states of the EU. It is a system which

benefits the member states. As was said in Recital (5) and (6) to the Framework Decision:-

“The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition

between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction

of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution

of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present

extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should

be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final

decisions, within an area of freedom, security and justice.

The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal

law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial

cooperation.”

[Emphasis added.]

33. Section 37 of the Act of 2003 provides that a person shall not be surrendered if his surrender would be incompatible with the

Convention.

34. The respondent submitted that surrender would cause a disproportionate interference with his rights under s. 37 of the Act of

2003. Reference was made to rights of liberty, security and family.

35. His family circumstances are that the respondent, his parents and brother and sister, moved to Ireland in 2004. They made a

collective decision to stay in Ireland. All of the respondent’s immediate family are now in the Limerick area. Ireland has become the

respondent’s home and he wishes to stay here long term. He is close to his family, he has no family members left in Poland.

36. However, as Fennelly J. stated in Minister for Justice, Equality and Law Reform v. Gheorghe [2009] IESC 76 (Judgment of

Fennelly J. of the 18th November, 2009) at pp. 48:-

“It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the

system of the [EAW], that persons sought for prosecution in another state will very often suffer disruption of their

personal and family life. Some states have historically refused to extradite their own nationals, but that is a special case.

The Framework Decision expressly provides that, in Article 1, that it does not ‘have the effect of modifying the obligation

to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European

Union.’ No authority has been produced to support the proposition that surrender is to be refused where a person will, as

a consequence, suffered disruption, even severe disruption of family relationships.”

37. In almost all cases of surrender, family rights, Article 8 rights, are affected. However, it is only in an exceptional case that Article

8 rights would outweigh the requirement to surrender. This is not such an exceptional case. Thus, there is no foundation upon which

to find for the respondent on this ground. Therefore, the general principle of proportionality does not arise in these circumstances.

38. Even if the principle of proportionality might arise in some circumstances, even if it could be a factor in a case, there is no basis in

the principle of proportionality upon which to refuse to surrender the respondent in this case.

39. Thus, I would allow the appeal and order that the respondent may be surrendered on the EAW, for the reasons stated in answer

to the certified question.