The High Court refused to surrender Jaroslaw Ostrowski to Poland under a second European arrest warrant, finding that surrender would be disproportionate in the particular circumstances of the case.
The warrant sought his return for prosecution over the alleged possession of 0.72 grams of marijuana. Mr Justice Edwards delivered judgment on 8 February 2012 after a hearing on the Minister for Justice and Law Reform’s application under section 16 of the European Arrest Warrant Act 2003. Mr Ostrowski did not consent to surrender.
The court found that the warrant met the statutory minimum-gravity requirement: the alleged offence carried a potential maximum sentence of three years under Polish law, above the 12-month threshold. It rejected the argument that the small quantity made the conduct de minimis, saying the statutory threshold was met and that possession of prohibited drugs should not be treated as trivial.
The court also said the issuing authority was presumed to have considered proportionality when it issued the warrant, under the principles of mutual trust and recognition. The Irish court could not review that decision on the basis of speculation about what Polish officials had considered. It could, however, assess afresh whether surrender itself would be proportionate in the circumstances at the time of its decision.
This was the second warrant concerning the same alleged offence. In 2010, the High Court had refused surrender under an earlier warrant because it contained errors; it had not then ruled on proportionality. The respondent accepted in the present proceedings that Poland was legally entitled to issue a second warrant.
In an affidavit, Mr Ostrowski said he had moved to Ireland with his family in 2004 and that they were based in the Limerick area. He said he had been visiting Poland in 2006, had cooperated with police, provided his Irish address and was told he was free to leave. He said he received no later correspondence about the incident. These were his statements to the court, and the judgment records that they were not contradicted by the applicant.
The judge considered the likely impact on Mr Ostrowski’s liberty and family life, the prospect of time in custody while seeking bail in Poland, his lack of family or an address there, and the stress and anxiety caused by the second proceedings. The court noted that the second warrant was endorsed in April 2010 but he was not arrested until July 2011, although his whereabouts were known. It did not infer sinister conduct or determine why the delay occurred.
The court weighed those circumstances against Poland’s interest in prosecution and concluded that, exceptionally, surrender would be a disproportionate interference with Mr Ostrowski’s fundamental rights. It upheld the proportionality objection and refused to make a surrender order under section 16. The ruling did not determine the underlying allegation or acquit him of it.