Supreme Court dismisses appeal on EAW execution, ruling proportionality is an issuing state matter, not a surrendering state issue under Framework Decision.

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 of Mr. Justice John MacMenamin delivered the 15th day of May, 2013.

1. I agree with the judgment of the Chief Justice. I would express my specific agreement with the observations at paragraph 20 of her

judgment when she states:

“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”.

To this, the Chief Justice added however:

“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”.

2. As matters stand, this Court constrained is act in accordance with the Framework Decision on the European Arrest Warrant and

Surrender Procedures between Member States adopted on the 13th June 2002 (“the Framework Decision”). The Framework Decision

envisages a general mandatory execution of European Arrest Warrants. The Framework Decision itself provides:

“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”.

The Framework Decision was embodied in statutory form by the European Arrest Warrant Act 2003, which similarly imposes a

mandatory duty on this court.

3. I would, nonetheless, wish to express my sympathy with some of the sentiments expressed in McKechnie J.’s judgment. A simple

consideration of the facts demonstrates how, apparently, the principle of compulsory prosecution can bring about outcomes, which

surely require consideration in the “different forum” referred to by the Chief Justice in her judgment.

4. At the time of the alleged offence, the 11th May, 2006, the respondent had been living in Ireland for approximately two years. He

went back to visit Poland on holidays. On the 27th November, 2006, the domestic order underlying the European Arrest Warrant was

issued by the District Court in Poland. More than two years later, the first European Arrest Warrant was issued by that District Court.

That was on the 7th January, 2009. On the 22nd April, 2009, three years later, the first European Arrest Warrant was endorsed by

the High Court in Ireland. On the 19th October, 2009, the respondent was arrested and detained overnight in Henry Street Garda

Station in Limerick on foot of that warrant. He was brought to the High Court and admitted to bail. Thereafter, additional information

was received from the Polish authorities confirming errors in the first European Arrest Warrant. These were corrected by a Polish court

ruling on the 29th January, 2010. On the 19th March, 2010, the High Court (Peart J.) delivered a judgment nonetheless refusing to

surrender the respondent.

5. The process began again. On the 28th April, 2010, the second European Arrest Warrant was endorsed by the High Court. On the

4th July, 2011, by then five years after the alleged offence, the respondent was arrested on foot of the second European Arrest

Warrant. The hearing before the High Court (Edwards J.) took place on the 8th December, 2011. On the 8th February, 2012, that

court delivered judgment, refusing to surrender the respondent although the point of law in question was certified for this court. The

alleged offence in question was the possession of 0.72 grams of marijuana. In all this, I raise the question, are the legal means and

processes which have been deployed here in the prosecution of this quite trivial matter proportionate to, and reflective of, the

objectives of the Framework Decision? The prosecution of this respondent for possession of a small quantity of marijuana is now to

take place in Poland at least seven years after the event. This will take place after numerous hearings in the Polish District Court, two

hearings in our High Court, and the hearing and consideration of this appeal. Very substantial sums of taxpayer’s money have been

expended on this minor matter.

6. In paragraph 71 of his judgment McKechnie J. identifies other instances elsewhere where the European Arrest Warrant process has

apparently been used in the case of offences of a very minor nature. If the absence of a proportionality test in applying states is not

addressed by those charged with the monitoring the operation of the EAW procedures, one can envisage that, in some member

states, questions may arise as to whether the “apparent absence” of a proportionality test on the part of surrendering states can be

in accordance with fundamental rights whether identified under that Member State’s own Constitution or under EU fundamental rights

law.

7. Unless this issue of concern is addressed, there must surely be a risk that the law, as is applied in Member States, may develop in

a manner unintended by those who drafted, and who must monitor the operation of the Framework Decision.