The High Court rejected Bashkim Osaj’s objections to an Austrian request for his surrender for prosecution, but did not make a surrender order in the case. After further consideration, the court ordered his surrender to Belgium in separate proceedings and declined to make an order on the Austrian request.
Mr Justice Paul Burns delivered the judgment on 6 December 2021. Austria sought Osaj’s surrender under a European arrest warrant issued on 8 January 2021 in connection with two alleged offences. The warrant alleged that, in June 2013, Osaj acted with others in a break-in at a family home, where occupants were threatened with a pistol and knife, confined in a toilet, and robbed of cash and valuables valued at €775,280. Those remain allegations; the judgment did not determine guilt.
Osaj challenged the warrant on several grounds. He argued that the Austrian prosecutor was not a valid issuing authority, that the Austrian procedures did not provide adequate legal challenges, and that surrender was not genuinely sought for prosecution. He also relied on his family circumstances, the passage of time and repeated warrants, and alleged that the warrant lacked sufficient detail.
The judge found that the Austrian prosecutor’s warrant had been authorised by a court before transmission, in line with a process approved by the Court of Justice of the European Union. He was not satisfied that the absence of an express statement about proportionality invalidated the warrant. The court also found that, after surrender, Osaj would have 14 days to appeal the national arrest order; a successful appeal would cause the European arrest warrant to fall away. Any pre-trial detention could also be challenged.
On prosecution purpose, the judge accepted that Austria intended to charge and try Osaj, although a further decision would follow questioning and the opportunity for him to respond. The court was not satisfied that this process amounted to surrender for questioning or investigation alone, or that the statutory presumption of a decision to prosecute had been rebutted.
The judge also rejected the arguments based on family life, delay and abuse of process, finding no culpable delay or exceptional circumstances sufficient to prevent surrender. He found the warrant’s account of the alleged conduct adequate and dismissed the objections under the relevant provisions of the European Arrest Warrant Act 2003.
The judgment concluded that surrender to Austria was not legally precluded and said an order could be made under section 16. It postponed that order while considering the separate Belgian surrender request. The final note records that the court later ordered surrender to Belgium and declined to make an order in the Austrian proceedings.