MJELR -v- Bednarczyk, Neutral citation (2011) IEHC 136.
High Court
Judgment was given by Mr Justice John Edwards on April 5th, 2011.
Judgment
The surrender of a Polish man living in Ireland since 2006 for trial in Poland on a theft charge and to serve an outstanding eight-month sentence did not infringe his family rights under the European Convention on Human Rights or those of his family living with him in Ireland.
Background
European arrest warrants were issued in March 2008 and September 2009. The first related to a theft charge, the second to the outstanding eight-month sentence. The warrants were found to be in order.
The man contested his surrender on the grounds that it would infringe his family rights under the European Convention on Human Rights.
He said he had come to Ireland in May 2006 with his wife and children, aged 10, eight and six. He was a hard worker and had contributed to society and made a life here, working in a variety of positions in Co Galway.
His wife was hoping to get a job here and she and his children were well settled, with the children attending school, where they had many friends.
He said if he was surrendered, his wife and children would also have to return to Poland. The children’s education would be disrupted. While not contesting the entitlement of the Polish state to seek his rendition, he contended that in all the circumstances this would be a disproportionate interference with his right and those of his family to respect for their family rights.
He said that the court must approach the matter with due regard for the best interests and well being of the children and having regard to the UN Declaration on the Rights of the Child, which states they should be the paramount consideration.
The children had no experience of Polish schools and were following the Irish curriculum and being educated through English.
Decision
Mr Justice Edwards said the man had not discharged the evidential burden of showing that the level of interference with his rights and those of the other family members would be so great as to amount to a breach of the convention.
The best interests and wellbeing of the children were clearly important, but not to be regarded as automatically trumping other important considerations.
Referring to the UN Convention on the Rights of the Child, which Ireland had signed, he said that Ireland had a dualist system under which international agreements to which it became a party were not automatically incorporated into domestic law.
The provisions of the Constitution relating to international agreements had been interpreted as precluding the Irish courts from giving effect to an international agreement if it was contrary to domestic law or grants rights or imposes obligations additional to domestic law, he said.
“Currently, Irish domestic law does not universally provide that in court actions concerning of affecting children, whether directly or indirectly, the best interests of the child shall be the primary consideration,” Mr Justice Edwards said. While the “welfare principle” existed in a number of statutes, it did not appear in the European Arrest Warrant Act 2003.
The article of the UN convention on the best interests of a child being the “primary consideration” must be regarded as imposing an obligation greater than that existing in domestic law and the court was constitutionally prohibited from giving direct effect to the UN convention.
That said, any assessment of proportionality involved a balancing exercise, but it had already been found in the Gheorge case that surrender was not to be refused just because a person may suffer disruption of family relationships. The bar for judicial intervention was set at a significantly higher level than that.
The level of disruption of family relationships caused by the imprisonment of a family member will not normally be regarded as a gross interference with the right to respect for family life or a breach of Article 8 rights. It was the essence of statehood that a sovereign state be free to operate and police and criminal justice system.
Sending a person to prison would inevitably impinge upon his or her opportunity to enjoy the company of family members and his ability to exercise his guardianship rights over his children will be severely curtailed. Circumstances might exist where a person’s imprisonment would amount to a failure to respect family life, but they would be extremely rare.
The possibility of imposing a term of imprisonment upon an offender would in most cases be a step well within the margin of appreciation that a state has in terms of what it must do to respect family life.
In this case, the respondent’s surrender would disrupt his family life and that of other family members, but not so grossly as to breach their rights under Article 8 of the convention.
Whether his wife and children followed him to Poland was their choice. The strongest case made by the respondent was in respect of his children’s education. However, they spoke Polish in the home and were culturally Polish. The children were all still in primary school. The eldest was at an age when she would be making the transition anyway to secondary school, while the youngest had just started school.
In all the circumstances of the case, there would not be a breach of the respondent’s respect for his family rights, or those of other family members, by his surrender, and it was not prohibited by part 3 of the 2003 Act.
The full judgment is on courts.ie
No lawyers were listed in court records in this case.