A Supreme Court judge has questioned whether the legal process used to pursue the surrender of a man to Poland over alleged possession of 0.72 grams of marijuana was proportionate to the objectives of the European Arrest Warrant system.
Mr Justice John MacMenamin delivered his judgment on 15 May 2013 in an appeal brought by the Minister for Justice and Equality against Jaroslaw Ostrowski. He agreed with the judgment of the Chief Justice, including her view that whether an issuing authority should consider proportionality was a matter for the issuing state and did not arise in the case before the court.
The judgment records that Ostrowski had lived in Ireland for about two years when the alleged offence occurred on 11 May 2006. He had returned to Poland for a holiday. A Polish District Court issued the underlying domestic order on 27 November 2006 and its first European Arrest Warrant on 7 January 2009.
The High Court endorsed that warrant in April 2009. Ostrowski was arrested in Limerick in October and detained overnight at Henry Street Garda Station before being brought to the High Court and admitted to bail. After errors in the warrant were confirmed by Polish authorities and corrected by a Polish court, the High Court refused surrender in March 2010.
A second warrant was endorsed in Ireland in April 2010. Ostrowski was arrested on it in July 2011. The High Court refused surrender in a judgment delivered on 8 February 2012, but certified a point of law for the Supreme Court. MacMenamin’s judgment does not state the Supreme Court’s disposition of the appeal or set out any order made by the court.
MacMenamin said the Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States, as implemented by Ireland’s European Arrest Warrant Act 2003, imposed a mandatory duty on the Irish court to execute warrants. He nevertheless echoed concerns expressed in another judgment in the case, asking whether the processes deployed in pursuing prosecution over a minor alleged offence were proportionate. He noted that proceedings in Poland were to take place at least seven years after the alleged offence and referred to multiple Polish court hearings, two High Court hearings and the Supreme Court appeal.
He said substantial taxpayer money had been spent on the matter and warned that the absence of a proportionality test in issuing states could raise questions about fundamental rights. He called for the issue to be addressed by those monitoring the operation of the European Arrest Warrant procedures.