Minister for Justice v Osaj

Factual and Procedural Background

The Applicant seeks the surrender of the Respondent to Austria pursuant to a European Arrest Warrant (EAW) dated 8th January 2021. The EAW was issued by a Deputy Prosecutor from the Prosecution Office of Ried im Innkreis. The warrant relates to two alleged offences involving an armed and organised robbery at a family home in 2013, including threats with weapons, unlawful confinement, and extortion of valuables valued at approximately €775,280. The EAW was endorsed by the High Court on 21st January 2021, and the Respondent was arrested and brought before the Court on that date. The Respondent is alleged to have acted in concert with others in committing these offences.

There were two earlier EAWs issued in respect of the Respondent for the same alleged offences: the first in 2013, which was withdrawn in 2015 following acquittals of co-accused persons; and the second in 2020, withdrawn due to procedural irregularities concerning judicial endorsement. The current EAW replaced the second warrant after proper judicial authorisation was provided. The Respondent, originally from Kosovo and now an Irish citizen, denies wrongdoing and raises objections to surrender based on various grounds including procedural and human rights concerns.

Legal Issues Presented

1. Whether the issuing judicial authority qualifies as such under the Framework Decision and whether the EAW was validly issued and authorised.
2. Whether the Respondent’s surrender is precluded by the absence of an effective appeal mechanism in the issuing state, potentially breaching the European Convention on Human Rights (ECHR).
3. Whether surrender is precluded under section 21A of the European Arrest Warrant Act 2003 due to lack of a decision to charge and try the Respondent.
4. Whether surrender should be refused based on section 37 of the Act 2003 due to lapse of time, impact on private and family life, or abuse of process.
5. Whether the EAW complies with section 11 of the Act 2003 regarding sufficiency of particulars of the offences.

Arguments of the Parties

Respondent's Arguments

• The Respondent contends that the issuing judicial authority is not valid under the Framework Decision because the EAW was issued by a Public Prosecutor without explicit judicial endorsement of proportionality prior to transmission.
• It is argued that surrender is incompatible with the State’s ECHR obligations due to the absence of a procedure in Austria to challenge the EAW effectively before surrender.
• The Respondent claims that surrender is not sought for prosecution purposes and thus is precluded under section 21A of the Act 2003.
• The Respondent asserts that the repeated issuance of EAWs, delay, and personal circumstances justify refusal of surrender or amount to abuse of process under section 37.
• The Respondent submits that the EAW lacks sufficient particulars and clarity, particularly regarding the application of the tick-box procedure for offences, violating section 11 of the Act 2003.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court commenced by confirming the identity of the Respondent as the subject of the EAW and found no grounds under sections 22, 23, or 24 of the Act 2003 to preclude surrender. The Court accepted that the minimum gravity threshold was met given the seriousness of the alleged offences carrying penalties up to 15 years.

Regarding the issuing judicial authority, the Court relied on the CJEU decision in NJ which validated the Austrian system of EAW issuance by Public Prosecutors with subsequent judicial endorsement. The Court found the current EAW had been properly authorised by an Austrian court, including the necessary judicial oversight and proportionality review, despite the Respondent’s expert report suggesting otherwise. The Court emphasized the principle of mutual trust between Member States and the uniform form of the EAW, which does not require explicit mention of proportionality assessment.

On the issue of appeal mechanisms, the Court accepted the Austrian authorities’ explanation that challenges to the EAW occur via appeals against the domestic arrest warrant, with a 14-day period commencing after surrender. The Court found this satisfies the Framework Decision’s requirements for judicial protection, referencing the CJEU’s ruling in XD. The Court rejected the Respondent’s claim that the lack of a direct appeal against the EAW invalidated it.

Concerning section 21A of the Act 2003, the Court reviewed the Respondent’s submissions and expert evidence on Austrian criminal procedure. It concluded that the EAW was issued with the intention to prosecute, not merely for questioning, and that a final decision to charge awaits the Respondent’s surrender to afford him rights under Austrian law. The Court applied the presumption in section 21A(2) and relevant case law, including Olsson and Campbell, finding no cogent evidence rebutting the presumption that a decision to charge and try has been made.

On the Respondent’s objections under section 37 and abuse of process, the Court acknowledged the disruption to private and family life but held that such disruption is inherent in extradition processes and did not meet the high threshold established in Vestartas. The Court found no culpable delay or abuse of process despite the history of multiple EAWs and withdrawals, distinguishing the facts from the exceptional circumstances in J.A.T. No. 2.

Regarding the sufficiency of particulars under section 11, the Court found the EAW adequately described the offences, circumstances, and the Respondent’s alleged role. The Court rejected the claim of ambiguity or prejudice and concluded the tick-box procedure was properly applied.

Finally, the Court noted the existence of a concurrent surrender request from Belgium and decided to postpone the surrender order to determine priority, ultimately ordering surrender to Belgium and declining surrender to Austria.

Holding and Implications

The Court DISMISSED all objections raised by the Respondent to his surrender to Austria on the basis of the European Arrest Warrant.

However, the Court POSTPONED making an order for surrender to Austria due to a competing surrender request from Belgium. Following further consideration, the Court ordered surrender to Belgium and declined to order surrender to Austria in these proceedings.

The decision confirms the validity of the Austrian EAW issuance system as approved by the CJEU and affirms the application of section 21A presumption regarding the decision to charge and try. It also reinforces the high threshold required to refuse surrender on grounds of private and family life disruption or abuse of process. No new precedent was established; the ruling applies existing principles to the facts presented.