The Supreme Court allowed the Minister for Justice and Equality’s appeal and ordered that Jaroslaw Ostrowski may be surrendered to Poland under a European arrest warrant. The judgment, delivered by Chief Justice Denham on 15 May 2013, answered a certified question about whether the High Court in Ireland could assess proportionality when deciding whether to surrender someone under a warrant.
The court held that, where a warrant meets the requirements of the European Arrest Warrant Act 2003 and the EU Framework Decision, the High Court cannot create and apply a general proportionality test to the potential sentence or treat an offence as too trivial for surrender. The court said the Act’s minimum gravity threshold addresses which offences may be covered. The warrant in this case met the relevant requirements, and no issue was raised about its form or procedure.
The warrant sought Ostrowski’s return to face trial over an allegation that on 11 May 2006 in Wroclaw he possessed 0.72 grams of marijuana. The warrant stated that the offence carried a maximum prison sentence of three years. The Supreme Court’s judgment addressed the surrender question; it did not determine whether the alleged offence occurred.
The High Court had refused surrender in February 2012, finding that it would be disproportionate in the particular circumstances. It considered, among other matters, the prospect of further detention while awaiting a hearing in Poland, the delay before Ostrowski’s arrest in Ireland, the effect on his family life, and the High Court’s view that a custodial sentence on return was unlikely. Those were the High Court’s considerations, not findings adopted by the Supreme Court.
Ostrowski’s counsel also argued that surrender would disproportionately interfere with rights protected by section 37 of the 2003 Act, including liberty, security and family rights. The Supreme Court held that family life is affected in many surrender cases, but only an exceptional case would allow Article 8 rights to outweigh surrender. It concluded this case was not exceptional and that there was no basis to refuse surrender on proportionality grounds.
The appeal arose from the High Court’s certification of a point of law of exceptional public importance. The Supreme Court answered that question by allowing the appeal and making an order that Ostrowski may be surrendered under the warrant.