High Court dismisses surrender objection under EAW Act 2003 s.16 as family life rights are not breached.

Neutral Citation Number: [2011] IEHC 136

THE HIGH COURT

2010 101 & 102 EXT

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

- AND -

WOJCIECH BEDNARCZYK

RESPONDENT

JUDGMENT of Mr Justice Edwards delivered on the 5th day of April 2011

Introduction

The respondent is the subject of two European Arrest Warrants issued by the Republic of Poland on the 25th of March, 2008 and the

22nd of September, 2009, respectively. Both warrants were endorsed for execution by the High Court in this jurisdiction on the 10th

of March, 2010. The respondent was arrested by Garda Gary Ryan at Riverview, Ballinasloe, Co Galway on the 24th of August 2010 on

foot of the warrant dated the 22nd of September, 2009 and was brought to Dublin to appear before the High Court on the 25th of

August 2010. On the 25th of August 2010 he was arrested at the CCJ building in Dublin on foot of the warrant dated the 25th of

March, 2008. He was brought the High Court later that day on foot of both warrants pursuant to s. 13 of the European Arrest

Warrant Act 2003 (hereinafter “the 2003 Act”) and was remanded on bail pending a s. 16 hearing. The respondent does not consent

to his surrender to the Republic of Poland on foot of either warrant. Accordingly, this Court is now being asked by the applicant to

make Orders pursuant to s. 16 of the 2003 Act 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.

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 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 so far as specific points of objection are

concerned, the Court is required to consider a single specific objection to the respondent’s surrender, namely:

“whether the surrender of the respondent would be incompatible with the State’s obligations under the European

Convention on Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’), in particular the right to respect

for his private and family life under Article 8.”

Uncontroversial s. 16 issues

The Court has received an affidavit of Garda Gary Ryan sworn on the 26th of March, 2011 and has also received and scrutinised a

copy of both European Arrest Warrants in this case. Moreover the Court has also inspected both original European Arrest Warrants

which are on the Court’s file and notes that each one bears this Court’s endorsement. The Court is satisfied following its consideration

of this evidence and documentation that:

(a) the person before it is the person in respect of whom each of the relevant European Arrest Warrants was issued;

(b) the European Arrest Warrants have each been endorsed for execution in accordance with s. 13 of the 2003 Act;

(c) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss 79, 80, 81 and 82 of the Criminal Justice

(Terrorist Offences) Act 2005), to refuse to surrender the respondent under the 2003 Act.

The warrant dated the 25th of March, 2008 is a prosecution type warrant and the respondent is wanted in the Republic of Poland for

trial in respect of a single charge for an offence that the Court is satisfied would correspond in this jurisdiction with theft contrary to

s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The relevant offence carries a potential penalty of up to 5 years

imprisonment in Poland and accordingly the requirements in relation to minimum gravity are met.

The warrant dated the 22nd of September 2009 is required to be read in conjunction with additional information supplied by the

issuing judicial authority dated the 20th of February, 2011. It is a sentence type warrant on foot of which the respondent is wanted in Poland to serve an outstanding

sentence of eight months imprisonment imposed upon him by Local (or District) Court in Koñskie on the 23rd of November 2005 in respect of an offence

that the Court is satisfied would correspond in this jurisdiction with making gain or causing loss by deception contrary to s. 6 of the

Criminal Justice (Theft and Fraud Offences) Act, 2001. The Court is satisfied that the requirements of the 2003 Act with respect to

minimum gravity are also met in terms of this warrant.

The Court is further satisfied that the European Arrest Warrant in this case is in the correct form. In addition the Court is satisfied to

note the existence of the European Arrest Warrant Act 2003 (Designated Member States) (No 3) Order 2004, S.I. 206/2004

(hereinafter referred to as “the 2004 Designation Order”), and duly notes that by a combination of s 3(1) of the 2003 Act, and article

2 of, and the Schedule to, the 2004 Designation Order, “Poland” (or more correctly the Republic of Poland) is designated for the

purposes of the 2003 Act as being a state that has under its national law given effect to the Framework Decision.

The s. 38 objection

The evidence in support of the respondent’s objections in both cases is contained in two more or less identical affidavits sworn by him

on the 14th of December 2010, and in a supplemental affidavit sworn by him on the 21st of March 2011.

The respondent has deposed that in or about the 13th of May 2006 he came to Ireland and he has been here since then. He is a

married man and his wife and three children, aged ten, eight and six, respectively, also reside in Ireland with him. He contends that

they have settled down and made a life here.

He has sought to emphasise that he is a hard worker, has been more often in work than out of it and has been making a useful

contribution to society here, all of which I have no hesitation in accepting. To that end, he has set out his employment record in

some detail and has averred that he was employed by Frank Kelly builder from 29th of May 2006 until the 25th of August 2006.

Thereafter he was employed by Cregg Brothers Limited from September of 2006 until May of 2007. He was then employed at Carlton

Shearwater Hotel as a kitchen porter from October of 2007 until December 2007. Subsequent to that he was employed by Frank

Byrnes Autobody Repairs, Clarenbridge, Co Galway from January of 2008 until February 2008. He then was employed by Cregg Stone

from March 2008 until August of 2008 when he was let go due to a downturn in the business. He contends that he has been offered

numerous employment positions recently including positions with his previous employers Frank Byrnes Autobody Repairs in Clarenbridge

as well with Kilgarve Cars on the Athlone Road in Ballinasloe, Co Galway and with another garage in Renmore, Co Galway. He states

that he has been eager to take up any and all of these offers in order to support his family but that to date he has been unable to do

so due to the fact that the present proceedings are pending.

The respondent further states that his wife is awaiting a response from Portiuncla Hospital regarding obtaining position which she

recently applied for.

The respondent avers that if he is surrendered to the Polish authorities on foot of the European Arrest Warrants his wife and three

children will also be forced to return to Poland. He states that they will have no means to support themselves in his absence. He

contends that his wife and his three children are very settled here in Ireland and that his children are all attending school. The

respondent emphasises that his three children have many friends here and he states that it is his intention and ambition that they will

eventually attend college here in Ireland. He suggests that should his children have to return to Poland they will enter the Polish

education system at a lower level and will be at a significant disadvantage in terms of the Polish subjects that they will have to study

and with respect to the Polish schooling system in general.

The respondent’s case, as outlined by his counsel, is essentially this. He accepts that the approach that a court such this should

adopt in considering whether an order for the surrender of the respondent would constitute a breach of this State’s obligations under

the Convention or its Protocols is that set out by Peart J in Minister for Justice, Equality and Law Reform v Gorman [2010] IEHC 210.

It will be recalled that in his judgment in the Gorman case, Peart J said:

“It seems to me to follow that for the purposes of the present application for the respondent’s surrender, this Court is

required to consider the following questions in arriving at a conclusion as to whether an order for the surrender of the

respondent to the United Kingdom would constitute a breach of this State’s obligations under the Convention or its

Protocols: (1) does surrender constitute an interference with the respondent’s private/family right; (2) if so, is that

interference one that is in accordance with law; (3) if further so, is the interference, by surrender of the respondent, in

pursuit of a legitimate aim or objective; (4) and further if so, whether that interference is necessary in a democratic

society (the latter meaning that it is justified by a pressing social need) and proportionate to the legitimate aim pursued.”

The respondent accepts that in his particular case, of the four questions commended by Peart J, the first three would have to be

answered in the affirmative. Moreover, he does not seek to gainsay that the legitimate aim or objective being pursued by the Polish

Government in seeking his rendition is the entitlement of the Polish authorities, acting in the Polish public interest (which public

interest includes the prevention of crime and disorder and the protection of the rights and freedoms of Polish citizens and others), to

seek (a) to try him for a crime of which he is accused and with which he has been duly charged, viz that which is the subject matter

of the warrant of the 25th of March, 2008 and (b) to have him serve out the sentence already imposed upon him for a crime of which

he has already been convicted, and which is the subject of the warrant of the 22nd of September, 2009. However the respondent

contends that in all the circumstances of his case his surrender would be a disproportionate interference with his right, and his wife

and childrens’ corresponding rights, to respect for family life, guaranteed by article 8 of the Convention and notwithstanding the

legitimate aims being pursued.

The respondent relies principally upon article 8 of the Convention as well as on two English cases, namely a decision of the former

House of Lords in the case of Beoku-Betts v Secretary of State for the Home Department [2009] A.C. 115 and a more recent U.K.

Supreme Court case of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 W.L.R. 148.

Article 8 of the Convention states:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the interests of national security, public safety or the economic

well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others."

In regard to article 8, the Court’s attention was drawn to the judgment of Baroness Hale of Richmond JSC in the Z.H. case where she

states:

In Beoku-Betts v Secretary of State for the Home Department [2009] AC 115, the House of Lords held that both the

Secretary of State and the immigration appellate authorities had to consider the rights to respect for their family life of all

the family members who might be affected by the decision and not just those of the claimant or appellant in question.

Lord Brown of Eaton-under-Heywood summarised the argument which the House accepted thus, at para 20:

"Together these members enjoy a single family life and whether or not the removal would interfere disproportionately

with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member.

If overall the removal would be disproportionate, all affected family members are to be regarded as victims."

I added this footnote at para 4:

"To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members

as it affects the appellant, and that a judicial review brought by other family members considers only the effect

upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point

about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the

family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or

minor children, with whom that family life is enjoyed."

Relying on this, the respondent submits that in considering whether or not his surrender on foot of the relevant European Arrest

Warrants is prohibited by the Part 3 of the 2003 Act or by the Framework decision (including the recitals thereto) the Court must

consider the rights to respect for their family life of all the family members who might be affected by the Court’s decision and not just

those of the respondent.

Baroness Hale went on to cite Lord Bingham of Cornhill’s statement in EB (Kosovo) v Secretary of State for the Home Department

[2009] AC 1159, where he said this, at para 12:

"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by

the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which

have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to

uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse

cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to

sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark

choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular

case. The search for a hard-edged or bright-line rule to be applied in the generality of cases is incompatible with the

difficult evaluative exercise which article 8 requires."

The respondent argues that this Court should consider, as a matter of particular importance, whether his spouse, but in particular his

children, can reasonably be expected to follow him to Poland. He further submits that the Court must approach the question with due

regard for the best interests and well being of the respondent’s children, and that having regard to the provisions of the United

Nations Declaration on the Rights of the Child, 1959, and article 3.1 of the (United Nations) Convention on the Rights of the Child,

1989 ("UNCRC) in particular, the Court should regard the best interests of the child as being a primary and indeed the paramount

consideration. He submits that his spouse and children cannot reasonably be expected to follow him to Poland in circumstances where

they have put down solid roots here; and, in the particular case of the children, where they are engaged with the education system

here, are being educated through English, are following the Irish Department of Education curriculum; and have no, alternatively no

recent, experience of Polish schools, or of the Polish education system and curriculum, or of being educated through Polish. The

respondent contends that the principles enunciated in the English cases upon which he relies are consistent with the jurisprudence of

the European Court of Human Rights in Strasbourg. Moreover, he submits, that it is so is clear from the following further quotation

from the judgment of Baroness Hale of Richmond JSC in the Z.H. case where she states (at para 17) :

“These questions tend to arise in two rather different sorts of case. The first relates to long-settled residents who have

committed criminal offences (as it happens, this was the context of R (WL (Congo)) v Secretary of State for the Home

Department [2010] 1 WLR 2168). In such cases, the principal legitimate aims pursued are the prevention of disorder and

crime and the protection of the rights and freedoms of others. The Strasbourg court has identified a number of factors

which have to be taken into account in conducting the proportionality exercise in this context. The leading case is now

Üner v The Netherlands (2006) 45 EHRR 421. The starting point is, of course, that states are entitled to control the entry

of aliens into their territory and their residence there. Even if the alien has a very strong residence status and a high

degree of integration he cannot be equated with a national. Article 8 does not give him an absolute right to remain.

However, if expulsion will interfere with the right to respect for family life, it must be necessary in a democratic society

and proportionate to the legitimate aim pursued. At para 57, the Grand Chamber repeated the relevant factors which had

first been enunciated in Boultif v Switzerland (2001) 33 EHRR 1179 (numbers inserted):

‘(i) the nature and seriousness of the offence committed by the applicant; (ii) the length of the applicant's stay in

the country from which he or she is to be expelled; (iii) the time elapsed since the offence was committed and the

applicant's conduct during that period; (iv) the nationalities of the various persons concerned; (v) the applicant's

family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's

family life; (vi) whether the spouse knew about the offence at the time when he or she entered into a family

relationship; (vii) whether there are children of the marriage, and if so, their age; and (viii) the seriousness of the

difficulties which the spouse is likely to encounter in the country to which the appellant is to be expelled.’

Significantly for us, however, the Grand Chamber in Üner went on, in para 58, "to make explicit two criteria which may

already be implicit" in the above (again, numbers inserted):

‘(ix) the best interests and well-being of the children, in particular the seriousness of the difficulties which any

children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and (x) the

solidity of social, cultural and family ties with the host country and with the country of destination.’

The importance of these is reinforced in the recent case of Maslov v Austria [2009] INLR 47, para 75 where the Grand

Chamber emphasised that

‘for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host

country, very serious reasons are required to justify expulsion. This is all the more so where the person concerned

committed the offences underlying the expulsion measure as a juvenile.’”

In response to all of this counsel for the applicant has argued that the respondent has not discharged the evidential burden upon him

of showing that the level of interference with his right, and the right of his family members, to respect for family life would be so great

as to amount to a breach of what is guaranteed to them by the Convention. The Court was reminded of the following remarks of

Fennelly J in giving the decision of the Supreme Court in Minister for Justice, Equality and Law Reform v Gheorgie [2009] IESC 76 :

“Like Peart J, I would also dismiss the third ground of appeal in limine. It is a regrettable but inescapable incident of

extradition in general and, as in this case, surrender pursuant to the system of the European arrest warrant, 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, suffer disruption, even

severe disruption of family relationships.”

The Court’s decision

I find myself in agreement with Counsel for the applicant, Ms Greally, that the respondent has not discharged the evidential burden

upon him of showing that the level of interference with his right, and the right of his family members, to respect for family life would

so great as to amount to a breach of what is guaranteed to them by the Convention. In considering this question I have adopted the

respondent’s submission that it is appropriate that the Court should consider the matter not just from the perspective of the

respondent personally but with due regard to the Article 8 rights of all of the family members that might be affected by the Court’s

decision.

I have also had regard to the best interests and well being of the respondent’s children, and have taken this into account. However,

while the Court has taken these considerations into account it has not been disposed, for reasons explained in the next two

paragraphs, to afford them primary, much less paramount, consideration. The best interests and well being of the respondent’s

children are clearly important considerations but they are not to be regarded as automatically trumping other important considerations

to which the Court must also have regard.

Counsel for the respondent has cited, and relies upon, article 3.1 of the (United Nations) Convention on the Rights of the Child 1989

("UNCRC) which states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts

of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Ireland is

bound by this obligation in international law, having signed the UNCRC and having ratified it without reservation on the 21st of

September 1992. However, Ireland has a dualist system under which international agreements, to which Ireland becomes a party, are

not automatically incorporated into domestic law. Article 29.3 of the Constitution states that “Ireland accepts the generally

recognised principles of international law as its rule of conduct in its relations with other States”. Further, Article 29.6 of the

Constitution states that “no international agreement shall be part of the domestic law of the State save as may be determined by

the Oireachtas”. These provisions have been interpreted as precluding the Irish Courts from giving effect to an international

agreement if it is contrary to domestic law or grants rights or imposes obligations additional to those of domestic law – Re Ó’ Laighléis

[1960] I.R. 93. Currently, Irish domestic law does not universally provide that in court actions concerning or affecting children,

whether directly or indirectly, the best interests of the child shall be a primary consideration. At most, it can be said that Article 3.1

of the UNCRC equates broadly with the so-called “welfare principle” which appears in a number of domestic statutes relating to

children. However, it does not appear in all potentially relevant legislation. It certainly does not appear in the European Arrest Warrant

Act, 2003 (or in the underlying Framework Decision). Neither does it appear in express form in the Constitution. That the Government

may have plans to put a constitutional amendment before the people to fully incorporate the UNCRC into Irish domestic law is a

matter of public knowledge. However, the holding of such a referendum, much less its outcome, cannot be taken for granted and the

Court must apply the law as it is today.

Accordingly, it is this Court’s view that article 3.1 of the UNCRC, in so far as purports to require the Court to regard as “a primary

consideration” the best interests and well being of children who may be affected by a decision to surrender the respondent, must be

regarded as imposing an obligation greater than that imposed by domestic law. Accordingly, the Court is constitutionally prohibited

from directly applying, or giving direct effect to, article 3.1 of the UNCRC. That said, the Court does recognise that any assessment

of proportionality involves a balancing exercise, and that in seeking to strike the appropriate balance it is appropriate to take account

of the best interests and well being of children who may be affected by a decision to surrender the respondent as one of a number of

potentially relevant factors, including the legitimate aims and objectives of the issuing state in seeking the respondent’s rendition.

However, it cannot, in the course of its balancing exercise, afford that consideration “primary” (or “paramount”) status to the

prejudice of other relevant considerations.

Moreover, the Court notes and agrees with the views of Fennelly J in the Gheorge case that surrender is not to be refused just

because a person may suffer disruption, even severe disruption, of family relationships. In my view the bar for judicial intervention is

set at a significantly higher level than that. A refusal of surrender on article 8 grounds should only be contemplated where the

interference is a gross one and constitutes a clear and unequivocal failure to respect the article 8 rights of those affected.

The level of disruption of family relationships occasioned by the imprisonment of a family member, even the parent of a minor child, will

not normally be regarded as a gross interference with the right to respect for family life or a breach of the article 8 rights of those

affected. It is of the essence of statehood that a sovereign state should be free to operate a police and criminal justice system for

the prevention of crime and disorder and the protection of the rights and freedoms of its citizens and others. The entitlement to

operate a police and criminal justice system must include the entitlement to operate a prison system, and in appropriate cases to

deprive people of their liberty by sending them to prison.

It is in the nature of imprisonment that many of the personal rights (whether they be constitutional or convention rights) enjoyed by

persons at liberty will be suspended or abrogated by the very fact of that person being remanded to or detained in a prison, especially

where he or she has been sentenced to a term of imprisonment. Of course, a prisoner will always have certain residual personal rights

which are not abrogated or suspended, such as the right to life and the right to be treated humanely and with human dignity.

However, it needs to be said that the sending of a person to prison will inevitably severely impinge upon their opportunity to have

society with, and to enjoy the company of, their family members including any children they may have. Such society as is permitted is

likely to be occasional, limited and restricted in a multitude of ways in the interests of security and good order within the prison

system. Moreover, the ability of a prisoner to earn a salary or wage to support his family will be suspended, and his ability to exercise

his guardianship rights with respect to his children will also inevitably be severely curtailed. Such interferences with family life are a

usual feature of, and are to be expected of, any prison system. Many of the rights or entitlements in that regard that the prisoner

would otherwise have, but for the fact that he is in prison, are suspended or abrogated for the duration of his or her sentence or

period of remand. Moreover such suspension or abrogation of the prisoner’s rights to participation in family life will in most

circumstances be considered to be a measure proportionate to legitimate aims and objectives of the imprisoning state.

That this is so is reflected in Article 8(2) of the Convention which permits interference by a public authority with the exercise of the

right to respect for family life where that is “in accordance with the law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection

of health or morals, or for the protection of the rights and freedoms of others”. It would be preposterous to suggest that persons

could not, or should not, be sent to prison simply because that would interfere, and indeed significantly interfere, with their

enjoyment of family life, or that the sending of persons, particularly any person with a spouse and children, to prison would amount to

a failure to respect the right of those affected to family life. That is not to say that there can never be circumstances in which a

person’s imprisonment could amount to a failure to respect family life but such circumstances would be highly exceptional and are

likely to be exceedingly rare. Before a Court would intervene in that regard it would have to be satisfied as to the existence of some

truly exceptional circumstance that would render the usually permitted level of interference with family life that imprisonment normally

entails unacceptable in the circumstances of the particular case and disrespectful of the right to family life as guaranteed by article

8. In saying this it is important, I believe, to reiterate a point made by Mr Justice Feeney in his judgment in Agbonlahore v Minister for

Justice, Equality & Law Reform [2007] 4 I.R. 309. Feeney J stated at paragraph 13 of the reported judgment in that case:

‘Article 8 does not protect private or family life as such. In fact it guarantees a "respect for these rights". In view of the

diversity of circumstances and practices in the contracting states, the notion of "respect" (and its requirements) are not

clear cut; they vary considerably from case to case: (see Abdulaziz and Others v. United Kingdom (1985) 7 E.H.R.R 471

at para. 67). The main issue which has concerned the European Court of Human Rights in relation to the concept and

scope of "respect" is whether such obligation is purely a negative one or whether it also has a positive component. The

court has stressed on many occasions that the object of article 8 is essentially that of protecting the individual against

arbitrary interference by public authorities and that such is a primarily negative undertaking but that nevertheless it has

on occasions indicated that there may in addition be positive obligations upon states that are inherent in effective

respect for article 8 rights. There have been occasional challenges to deportations on the ground of interference with

article 8 rights. Those challenges have almost always been based on interference with "family life" rather than "private

life". In Abdulaziz and others v. United Kingdom the court held, at p. 497, that whilst there might be positive obligations

to respect the family, a State "had a wide margin of appreciation in determining the steps to be taken to ensure

compliance with the Convention with due regard to the needs and resources of the community and of individuals …".’

The possibility of imposing a term of imprisonment upon an offender, or the lawful deprivation of that person’s liberty, as a feature of

a State’s criminal justice system, will in most cases be a step well within the margin of appreciation that that State has in terms of

what it must do to ensure respect for family life. Society could not function properly otherwise.

Turning then to a consideration of the circumstances of the respondent, and his spouse and children as persons who may be affected

by a decision to surrender him, I accept that his surrender will be disruptive of their family life. It is obvious that it will be. However, in

the Court’s view it will not be so grossly disruptive as to breach their rights under article 8 of the Convention. First, any disruption will

be inevitably be finite because both the sentence already imposed on the respondent, and the potential sentence he faces in the

event of being convicted on the matter for which he is wanted for trial, are finite. Secondly, while I accept that the respondent and

his family have put down some roots in this country, it seems to me that those roots are fairly shallow. They have only been in this

country since May 2006, a period of just under five years. There is no evidence of an extensive family network here in Ireland, or

indeed of an extensive social network here. I accept that the children have some school friends. Both parents and children are of

Polish nationality and are culturally Polish. Counsel for the respondent has confirmed to the Court that Polish is spoken in the home.

While there is evidence that the respondent is a good worker and has tried to keep himself in employment, he is not presently

employed. There is no evidence that he or his spouse has established any business or enterprise in this country that might be

prejudiced by his surrender, or that they have acquired any assets, property or land the maintenance, or working, of which might be

prejudiced by his surrender.

The Court does not accept that the respondent’s spouse and children cannot reasonably be expected to follow him to Poland. They

are not required to make that move but may wish to do so. Doing so may well be inconvenient, and may well involve some financial

hardship for them, but whether or not they should do so is their choice to make.

It seems to the Court that the strongest case made by respondent is in respect of possible educational prejudice to the children.

However, when this case is examined in detail it is seen to be based upon pure assertion and to be unsupported by any evidence.

While Poland’s schools may have a somewhat different curriculum to Irish schools there is no independent evidence to support the

suggestion that the respondent’s children will have to enter the Polish school system at a lower level than they would be at if they

had been in school in Poland from the start. Moreover, there will be no language difficulty as the children already speak Polish. The

Court further notes that the children are all in primary school. They are not old enough to be facing State exams in Ireland and there

is no suggestion that they would have to face State exams in Poland in early course. The youngest child, who is aged six, can only be

just out of infant classes and must be at first, or at most, second class level at this stage. It is fanciful to suggest that he or she

could not easily fit in with, or integrate into, the Polish school system, given the early stage of the child’s education. As regards the

oldest child, a girl (if memory serves me correctly), aged 12, she is at a convenient transition point in her school life where she would

in any event be moving from a primary school to a secondary school, a move that would involve a change of curriculum even in

Ireland. The middle child, who is aged ten, would perhaps see the most disruption to his/her school life, but it is hard to conceive that

at the age of ten, and while still in primary school, he or she could not readily adjust to having to go to school in Poland.

In all the circumstances of the case the Court is satisfied that it would not be a breach of the respondent’s right to respect for his

family life under Article 8 of the Convention, or of the corresponding Article 8 rights of those members of his family who might be

affected by his rendition, to surrender him to the issuing State. In the circumstances I am satisfied that his surrender is not prohibited

by Part 3 of the 2003 Act, or by the Framework Decision (including the recitals thereto).