MJELR -v- Rettinger [2010] IESC 45 (23 July 2010)

MJELR -v- Rettinger [2010] IESC 45 (23 July 2010)

The correct test is whether there are substantial grounds for believing that, if surrendered, the person would face a real risk of being subjected to inhuman or degrading treatment contrary to Article 3 ECHR. The applicant must adduce such evidence; the requesting state may dispel doubts but the burden does not shift. The High Court did not apply this test and must reconsider the application accordingly.

Citation
[2010] IESC 45
Parties
Applicant/respondent: Minister for Justice, Equality and Law Reform; Respondent/appellant: Robert Rettinger
Jurisdiction
Ireland
Judgment Date
23 July 2010
Procedural Posture
European Arrest Warrant Surrender/extradition Appeal / Supreme Court Appeal From High Court
Outcome
Remitted to High Court for reconsideration under correct legal test
Legal Topics
European Arrest Warrant, Article 3 ECHR, Inhuman or Degrading Treatment, Burden and Standard of Proof, Prison Conditions, Mutual Recognition, Extradition Prohibition Grounds
Criminal Law Human Rights Law Extradition Law European Arrest Warrant Article 3 ECHR Inhuman or Degrading Treatment Burden and Standard of Proof Prison Conditions +2 more

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Parties

Minister for Justice, Equality and Law Reform

Applicant/respondent

Robert Rettinger

Respondent/appellant

Procedural Posture

European Arrest Warrant Surrender/extradition Appeal / Supreme Court Appeal From High Court

Legal Issues

  1. 1 What is the correct standard and burden of proof for resisting surrender under a European Arrest Warrant on the basis of Article 3 ECHR?
  2. 2 Does the onus shift to the requesting state once substantial grounds of real risk are shown?
  3. 3 Is it sufficient for the respondent to show a real risk of inhuman or degrading treatment, or must probability be established?

Ratio Decidendi

The correct test is whether there are substantial grounds for believing that, if surrendered, the person would face a real risk of being subjected to inhuman or degrading treatment contrary to Article 3 ECHR. The applicant must adduce such evidence; the requesting state may dispel doubts but the burden does not shift. The High Court did not apply this test and must reconsider the application accordingly.

Court Disposition

Remitted to High Court for reconsideration under correct legal test

Orders

  • Matter remitted to High Court to apply the correct test for Article 3 ECHR risk as set out in this judgment.
  • Notice to Vary by the Minister dismissed.