The Supreme Court has ruled that Ireland’s High Court must order the surrender of Jaroslaw Ostrowski to Poland under a European Arrest Warrant, after finding that the family-rights circumstances relied on in the case did not justify refusing surrender.
In a judgment delivered by Mr Justice William McKechnie on 15 May 2013, the court addressed the scope of the High Court’s powers under the European Arrest Warrant Act 2003. It held that when constitutional or Convention rights are raised, the High Court may apply proportionality using the established Irish and European human-rights approach. That requires a fact-specific balance between the individual’s circumstances and the public interest in the surrender process.
The Supreme Court rejected a wider, free-standing proportionality test that would let the High Court review all circumstances of an EAW, whether or not protected rights were engaged. It also said the High Court could not weigh the likely sentence following conviction or the cost and burden to the State of executing the warrant. The seriousness of the alleged offence may be relevant to the public interest, but the statutory threshold for whether an offence qualifies for an EAW cannot be reconsidered at the surrender hearing once established.
Mr Ostrowski and his family moved from Poland to Ireland in 2004 and intended to remain here. During a holiday in Poland in May 2006, he was allegedly found with marijuana. A first warrant was found defective and his discharge was ordered in March 2010; a second warrant relating to the same alleged offence was issued the following month. The High Court later refused surrender, citing the impact on family life, the delay in executing the second warrant, possible difficulty obtaining bail in Poland and other circumstances. That was the decision appealed by the Minister for Justice and Equality.
The Supreme Court found that the separation and disruption identified were consequences inherent in the surrender process and that no family member was legally dependent on Mr Ostrowski. It considered the delay relevant, but insufficient by itself to outweigh the public interest. The court said unexplained delay in executing warrants should remain under review.
The judgment’s conclusion was that an order under section 16 should issue. The supplied judgment text records the Supreme Court’s conclusion; it does not include a separate operative order or its date.