Minister for Justice & Equality v Rakanovic (Approved)

Factual and Procedural Background

This decision concerns an application pursuant to Section 16(2) of the European Arrest Warrant Act 2003, as amended, for the surrender of the Respondent to the Republic of Croatia as the Issuing Judicial Authority (IJA) on foot of a European Arrest Warrant (EAW) dated 9 October 2016. The surrender is sought to prosecute the Respondent for two war crimes alleged to be violations of international law. The EAW was issued by a County Court in Osijek, Croatia, and was endorsed for execution on 17 October 2016. The Respondent was arrested on 1 September 2023 following a SIS alert. The High Court confirmed the identity of the Respondent as the person named in the EAW. The underlying detention order was made on 14 November 2010, and the maximum sentence available for the offences is twenty years imprisonment, satisfying the minimum gravity requirement. The Court was not required to refuse surrender under specified sections of the Act.

Legal Issues Presented

1. Whether the ticking of the offence box "crimes within the jurisdiction of the International Criminal Court" on the EAW constitutes a manifest error given the offences allegedly occurred prior to the establishment of the ICC.
2. Whether the description of the alleged offences in the EAW meets the required level of detail under Section 11(1)(a) of the Act.
3. Whether surrender should be refused due to lapse of time and delay, including alleged disproportionate interference with family rights under Article 8 of the European Convention on Human Rights (ECHR).
4. Whether the Respondent's right to a fair trial would be breached on account of ethnic and religious bias in the Croatian courts.
5. Whether surrender is prohibited under Section 37 of the Act due to the risk of inhuman or degrading treatment in Croatian prison conditions in breach of Article 3 of the ECHR.

Arguments of the Parties

Respondent's Arguments

• The ticking of the ICC jurisdiction box is a manifest error because the offences occurred before the ICC was established in 2002.
• The EAW lacks sufficient detail to clearly communicate the precise misconduct alleged.
• The delay in prosecution and execution of the EAW, spanning over 33 years, constitutes blameworthy prosecutorial delay and infringes upon family rights under Article 8 ECHR.
• There is a real and substantial risk of an unfair trial due to ethnic and religious bias against Serbs in Croatia, supported by outdated reports and allegations of corruption against the issuing judge.
• Surrender would expose the Respondent to inhuman or degrading treatment due to prison overcrowding and poor conditions in Croatian detention facilities, as evidenced by recent CPT reports.

Applicant's Arguments

• The ticking of the ICC offence box is not a manifest error as the Framework Decision allows the issuing state to classify offences by reference to categories of conduct, not the date of commission.
• The description in the EAW combined with additional information sufficiently details the alleged offence.
• The delay is explained by the Respondent's inaccessibility to Croatian authorities and the mislaying of the original EAW; lapse of time alone is not grounds for refusal.
• The presumption is that Croatian courts will respect the Respondent’s right to a fair trial, and the objections are speculative and unsupported by cogent evidence.
• The Croatian authorities have provided assurances and information regarding prison conditions, including mitigating factors such as out-of-cell activities and transfers to less crowded facilities.
• Public interest in prosecuting serious offences, particularly war crimes, outweighs delay concerns.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Minister for Justice and Equality v Cuipe (unreported, 13 September 2013)	Definition of "manifest error" in ticking offence boxes under Article 2.2 of the Framework Decision.	Guided the Court to apply a high threshold for manifest error; error must be truly manifest and evident from the warrant itself.
Minister for Justice v Ferenca [2008] I.R. 480	Article 2.2 of Framework Decision allows issuing state to define offences; executing state should defer to issuing state's classification.	Supported the principle that the classification of offences is for the issuing state, limiting interference by the executing court.
Minister for Justice v D.S. [2015] 3 I.R. 1	Ticking the ICC jurisdiction box was a manifest error where offences predated ICC establishment.	Used as precedent to conclude the ticking of the box in the present case was a manifest error.
Minister for Justice v Connolly [2014] IESC 34	Requirement for unambiguous clarity about the offences specified in the EAW.	Dismissed Respondent's objection about lack of detail, finding the EAW sufficiently clear.
Minister for Justice v J.A.T. (No.2) [2016] IESC 17	Lapse of time alone is not a ground for refusal of surrender.	Applied to reject lapse of time as sole basis for refusal, but delay considered in context.
Minister for Justice v Palonka [2022] IESC 6	Exceptional disruption to family life may engage Article 8 ECHR, but delay alone does not create rights.	Referenced to evaluate the Article 8 argument and delay's effect on family rights.
Minister for Justice v D.E. [2021] IECA 221	Evidential burden lies with Respondent to prove incompatibility with Article 8 ECHR.	Applied to dismiss Article 8 objection due to unremarkable family circumstances.
Minister for Justice v Anghel [2020] IEHC 699	Guidance on Article 3 ECHR objections related to prison conditions.	Provided principles for assessing real risk of inhuman or degrading treatment.
Mursic v Republic of Croatia (ECHR Application no. 7334/13)	Sets out criteria for presumption of violation of Article 3 when personal space is below 3m² in multi-occupancy cells.	Used as the benchmark to assess prison conditions and the burden on the issuing state to rebut presumption.
Minister for Justice v Dario Celik [2023] IEHC 102	Assessment of Article 3 objection based on prison conditions with mitigating factors.	Referenced to compare mitigating factors and assess the current prison conditions evidence.
Rasinski v Poland (429/69/18, ECHR)	Refusal of surrender required where minimum individual space is insufficient and not compensated by mitigating factors.	Applied to highlight the cumulative nature of assessment regarding prison conditions.
Aranyosi and Caldaru C-404/15 and C-659/15 PPU, EU:C:2016:198	Criteria for assessing real risk of inhuman or degrading treatment in executing EAWs.	Supported the Court’s acceptance of CPT report as objective and reliable evidence.

Court's Reasoning and Analysis

The Court first addressed the objection concerning the ticking of the ICC jurisdiction box on the EAW. It found, relying on precedent, that this was a manifest error because the alleged offences occurred before the ICC was established. However, this did not affect the validity of the surrender request since dual criminality was established by reference to offences under domestic law corresponding to the conduct described.

Regarding the sufficiency of detail in the EAW, the Court held that the combination of the warrant and additional information clearly conveyed the nature of the allegations, dismissing the Respondent's objection.

The Court examined the delay and lapse of time objections in light of the Respondent’s long residence in the jurisdiction and the significant delay in issuing and executing the EAW. While the delay was substantial and culpable, the Court emphasized the strong public interest in prosecuting serious offences, particularly war crimes. The delay did not reach the high threshold required to refuse surrender, and the Article 8 ECHR argument was dismissed due to lack of exceptional family circumstances.

The Respondent’s claim of risk to a fair trial based on ethnic and religious bias was deemed speculative and unsupported by current or cogent evidence. The Court applied the statutory presumption that the issuing state will respect fundamental rights, dismissing this ground.

The Court gave detailed consideration to the Article 3 objection concerning prison conditions in Croatia. It accepted the CPT 2023 report as objective and reliable evidence of systemic overcrowding and poor conditions, especially in pre-trial detention. The Court applied the Mursic test, noting that the minimum personal space of 3m² per prisoner in multi-occupancy cells was not guaranteed, and the Croatian authorities failed to adequately demonstrate that reductions in space would be short, occasional, and minor. Furthermore, the guaranteed out-of-cell movement was limited to two hours daily, which the Court found insufficient to mitigate the presumption of inhuman or degrading treatment.

Consequently, the Court concluded there are substantial grounds to believe that the Respondent would be exposed to a real risk of inhuman or degrading treatment if surrendered, thus prohibiting surrender under Section 37 of the Act.

Holding and Implications

The Court REFUSED THE SURRENDER of the Respondent to the Republic of Croatia pursuant to Section 37 of the European Arrest Warrant Act 2003 on the basis that there is a real risk of inhuman or degrading treatment in Croatian prison conditions in breach of Article 3 of the European Convention on Human Rights.

The other grounds of objection, including manifest error in the EAW, lack of detail, delay, Article 8 family rights interference, and risk to fair trial, were dismissed. The refusal of surrender is based solely on the Article 3 prison conditions ground. This decision does not establish new precedent beyond affirming the application of established principles regarding manifest error, delay, and prison conditions in the context of European Arrest Warrants.