High Court of Ireland Decisions

THE HIGH COURT

[2024 No. 126 EXT]

[2025] IEHC 169

MINISTER FOR JUSTICE

APPLICANT

AND

 

HRVOJE ORSOLIC

RESPONDENT

 

JUDGMENT of Mr Justice Patrick McGrath delivered on the 14 March 2025

1.      By this application, the applicant seeks an order for the surrender of the respondent to the Republic of Croatia pursuant to a European Arrest Warrant dated 30 June 2022 ("the EAW").

 

2.      The EAW is a prosecution warrant and seeks the surrender of the respondent in order to prosecute him for two offences being ones of:-

 

a.       A criminal offence against Public Order - attack on an official, described and punishable in accordance with Article 315, Paragraph 1 in connection with Paragraph 4 of the Penal Code of Croatia;

b.      A criminal offence against Personal Freedom - by threat, described and punishable pursuant to Article 139, Paragraph 3 in connection with Paragraph 2 of the Penal Code of Croatia

 

3.      The respondent was arrested pursuant to a Section 26 SIS alert and brought before the High Court on the 26 July 2024.  The EAW was produced to the Court on the 31 July 2024. The Respondent has been on bail pending the outcome of these proceedings.

 

4.      A number of requests for further information have been sent to the issuing judicial authority ('the IJA') mainly focused on prison conditions in Croatia.

 

5.      A Notice of Objection was filed by the Respondent and his submissions were thereafter lodged on the 2 August 2024. Following the receipt of additional information from the IJA, the Respondent lodged further submissions on the 17 January 2025.

 

6.      In his Notice of Objection, the Respondent submitted that

 

a.       The issuing judicial authority is not a competent issuing judicial authority for the purposes of Article 6 of the Framework Decision and / or Section 2 of the 2003 Act;

b.      Correspondence has not been established with offences contrary to Irish Law;

c.       Surrender ought to be refused as there is an impermissible lack of clarity in the Warrant and it does not meet the requirements of Section 11(1)(d) of the 2003 Act;

d.      Surrender is prohibited under s37 of the 2003 Act as there is a real risk that, if detained in a Croatian prison, he would be exposed to conditions that would breach inter alia Article 2 and 3 of the European Convention on Human Rights ['the ECHR'];

e.       Surrender should be refused as, if surrendered, he would be exposed to a real risk of an unfair trial contrary to Article 38.1 of the Constitution and / or Article 6 of the ECHR;

f.        His surrender would constitute a disproportionate interference with his family and personal rights and should be refused under s37 of the 2003 Act.

 

7.      The Applicant lodged his replying submissions on the 6 August 2024 and his supplementary replying submissions on the 24 January 2025.

 

MATTERS NOT IN DISPUTE

 

 

8.      I am satisfied that the person before the court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

 

9.      I am satisfied that none of the matters referred to in Sections 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended ("the 2003 Act"), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

 

10.  I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The maximum sentence in respect of each of the offences for which surrender is sought is in excess of one year's imprisonment.

 

CORRESPONDENCE

11.  This is a case where it is not sought to rely on Article 2.2 of the Framework Decision. It is therefore a case where it is necessary to establish that the conduct set out in the EAW corresponds with offences under the laws of this State.

 

12.  Section 5 of the 2003 Act provides:-

 

'For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State'.

 

13.  The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence - Minister for Justice v Dolny [2009] IESC 48

 

14.  I am satisfied that the two offences in respect of which surrender to Croatia is sought correspond with offences contrary to the laws of Ireland, namely

 

(i)                 As set out in Part (e) of the EAW the first offence involves an attack on a police officer during the performance of his duties resulting in the infliction of bodily injury. It is alleged that he approached a police officer, grabbed him by the collar of his shirt and pulled him forward, resulting in a scratch to his neck. This conduct corresponds with an offence contrary to Section 2 and / or 3 of Non Fatal Offences Against the Person Act, 1997 and / or Section 19(3) of the Public Order Act, 1994

(ii)              As set out in Part (e) of the Warrant, the conduct alleged for the second offence would, if done in Ireland, amount to an offence of Threat to Kill or Cause Serious Injury contrary to Section 5 of the Non Fatal Offences Against the Person Act, 1997

 

COMPLIANCE WITH SECTION 11 OF THE 2003 ACT

 

15.  Section 11(1)(d) of the Act provides that a relevant EAW shall specify:-

'(d) the offence to which the [relevant arrest warrant] relates, including the nature and classification under the law of the issuing state of the offence concerned'

 

16.  The Respondent submits that there is a lack of clarity as to the number and nature of the offences for which surrender is sought.

 

17.  The Applicant submits that the offences to which the EAW relates are abundantly clear from a plain reading of Section E of the Warrant. It is further submitted that the nature and classification of the offences is also provided with clarity in the Warrant.

 

18.  It is clear from the information provided in the EAW what are a) the number of offences for which surrender is sought b) the nature of those offences and c) the factual circumstances which are alleged to have given rise to such offences.

 

19.  There is no lack of clarity in the Warrant, and I am satisfied it complies with section 11 of the 2003 Act.

 

ISSUING JUDICIAL AUTHORITY

20.  The Respondent submits that issuing judicial authority ['IJA'], the Municipal Court in Dubrovnik, is not a competent issuing judicial authority as it is not contained in a list of County Courts submitted by Croatia to the Council of Europe pursuant to Article 6(3) of the Framework Decision.

 

21.  Article 6(3) of the Framework Decision provides that each member state is obliged to inform the Council of Europe of the competent judicial authorities under its law. Notification was provided in this regard by Croatia on the 17 September 2024 and Dubrovnik County Court was not listed therein.

 

22.  The Applicant submits that the Respondent has not provided any authority for the proposition that the failure of a State to notify the Council of the European Union of a relevant competent issuing judicial authority could operate as a bar to surrender. The Minister also points out that this is not included in the optional of mandatory grounds for refusal set out in either the Framework Decision or the 2003 Act.

 

23.  The Minister further relies upon:-

 

a.       The presumption at Section 4A of the 2003 Act that the issuing state will comply with the requirements of the framework decision, unless the contrary is shown;

b.      The principles of mutual trust and confidence which operates between state parties to the Framework Decision; and

c.       The fact that the EAW is on its face signed by a Judge and the absence of any evidence rebutting the presumption that operates pursuant to s4A of the 2003 Act.

 

24.  I agree with the submissions made by the Minister. The Respondent has not cited any authority in support of the proposition that the failure of a member state to notify the Council of the European Union of a relevant competent authority should operate as a bar to surrender. The EAW is signed by a Judge, and he has failed to put any evidence before this Court that would rebut the presumption that operates by virtue of Section 4A of the Act of 2003 to the effect that the issuing state has failed or will fail to comply with the provisions of the Framework Decision.

ARTICLE 8

 

25.  There is no evidence to support any objection to surrender on the grounds that this would be a disproportionate interference with the family and personal rights of the Respondent.

 

26.  It is indicated in the Respondent's affidavit that he resided in Croatia until 2020 and has now established a 'life' in Ireland. Whilst he references work and friends, he does not make any reference to having family members in Ireland.

 

27.  There are two serious offences alleged against this Respondent and no evidence has been placed before the Court to show that any interference with his personal and family rights reach the necessarily high threshold set out in cases such as Minister for Justice v Verstartas [2020] such that to order his surrender would be incompatible with the State's obligations under Article 8 ECHR.

 

28.  This ground of objection is therefore rejected.

 

POSSIBLE BREACH OF RIGHT TO A FAIR TRIAL

 

29.   The Respondent submits that, based on the documented delays and backlogs in the Croatian Justice system, there are systemic or generalised deficiencies such that there is a real risk that his fundamental right to a trial within a reasonable time would be breached.

 

30.  In this regard the Respondent refers to the US State Department Report of 2023 where it was stated that defendants in criminal trials were periodically denied the right to a timely trial due to judicial backlog and procedural inefficiencies in domestic courts. It was further said therein that the most delays were in the municipal court system - and the Respondent notes in this regard that the EAW here was issued by the Municipal Court in Dubrovnik.

 

31.  The Respondent cites the Judgment of the CJEU in LM [Case C - 216 / 18 PPU] as authority for the proposition that a prospective breach of the right to a fair trial could lead to a refusal to surrender on foot of an EAW. That was a case which concerned, not the issue of delay, but rather the issue of the independence of the Judiciary in the requesting state and the CJEU there said that the two stage Araynosi & Caldaru test should be followed (with necessary modifications) where such an argument is advanced.

 

32.  The Applicant submits that this complaint is in reality a complaint as to the anticipated delay that might arise in the trial of the Respondent after his surrender. He firstly states that it is settled law that issues such as delay and the right to a fair trial are more appropriately raised in the issuing state, if there is a remedy in that state. There is no evidence that procedures are not available within which to raise such issues in Croatia.

 

33.  The Minister alternatively submits that, to successfully raise such an issue as a bar to surrender on foot of an EAW, in line with the dicta of the CJEU in Araaynosi & Caldaru, such an objection would firstly need to be grounded on information, which is objective, reliable, specific and properly updated.

 

34.  The Minister submits that, whilst the Respondent relies on a 2023 US State Department report outlining delays and backlogs in the Croatian criminal justice system generally, it does not provide specifics as to the lengths of any such delays or the impact of the same on individuals. He also points to the executive summary in this report which specifically notes that there were no credible reports of human rights abuses in Croatia in the period of the report.

 

35.  The Minister also cites the fact that the Respondent has not referred to any relevant precedent where surrender to Croatia, or any other member state, was refused on the basis of a prospective delay in a matter coming to trial in that State.

 

36.  I agree with the submissions made by the Minister on this issue. This objection is not made out for the following reasons:-

 

(i)                 The evidence adduced does not give rise to concerns of systemic or generalised deficiencies, by reason of delay in the hearing of cases or generally, in the system of justice in Croatia;

(ii)              It is well settled law in this jurisdiction that issues such as delay and right to a fair trial are more appropriately dealt with in the issuing state, if there is a remedy available in that state;

(iii)            The onus is on the Respondent to not only raise the issue of delay giving rise potentially to an unfair trial but also to adduce evidence that no remedy or adequate remedy is available in the issuing state and that, for example, he could not raise these issues in the Croatian courts;

(iv)             Although the 2023 State Department refers critically to delays and backlogs in the Croatian justice system, the same report in its executive summary notes that there are no credible reports of human rights abuses in Croatia;

(v)               The Respondent has not cited any case where, either the domestic courts of Croatia or the ECtHR, had held that systemic delays in the criminal justice system in Croatia (or any other member state) had resulted in a breach of Article 6 of the Convention

 

37.  This objection to surrender is dismissed.

 

PRISON CONDITIONS

 

Country of Origin Information

 

38.   The Respondent submitted a considerable volume of Country-of-Origin material which he says raises a real risk that, if surrendered and detained in custody in Croatia, he will be subjected to inhuman and / or degrading treatment and his rights under the ECHR would be thereby violated.

 

39.  Annexed to his Submissions, the Respondent provided a very useful precis of such Country-of-Origin information. The reports upon which he relies include the following:

 

(i)                 CPT Report of the 23 November 2023 which followed from a visit by the Committee to Croatia and an inspection of a number of its prisons between the 19 and 22 September 2022

(ii)              The US State Department Reports on Croatia 2022 & 2023 - specifically that part of each report concentrating on Croatian Prisons

(iii)            The Croatian Ombudsman's Report on the Performance of the National Preventative Mechanism for 2022

(iv)             The UN HCR observations in its Fourth Periodic report on Croatia dated the 25 July 2024

 

40.  The Respondent further referred to a number of decisions of the ECtHR where breaches of Article 3 were found in relation to conditions of detention in relation to particular Croatian prisons.

 

41.  He also referred to Minister for Justice v Rakonovic [2024] IEHC 391 where Greally J, on the basis of the 2023 CPT report, held that the first part of the test in Araynosi and Caldaru was met and issued a number of requests seeking specific assurances and further information as to the conditions in which that Respondent would be detained upon surrender. Greally J ultimately refused to order surrender there as, having considered the responses of the Croatian authorities, she concluded that:-

 

'Consequently, the information provided by the IJA has failed to rebut the strong presumption that the likely conditions of the Respondent's detention will be in breach of his right not to be subjected to inhuman and degrading treatment under Article 3 of the ECHR'

 

42.  The Respondent submitted the detailed country of origin information he provided in this case shows a real risk that if surrendered:

 

(i)                 He might be held in conditions of less than 3m2 for the duration of his sentence and this raises a strong presumption of a breach of Article 3 of the ECHR;

(ii)              He may be held in an inappropriate detention facility without sufficient freedom of movement out of his cell and there are other potential aggravating factors;

(iii)            He may be held in conditions where the space factor is coupled with other aspects of inappropriate physical conditions of detention;

(iv)             He will be exposed to inhuman and degrading treatment at the hands of the prison service;

(v)               He will be exposed to inter prisoner violence; and

(vi)             He will not receive appropriate medical care

43.  The Respondent therefore submitted that there was sufficient general 'country of origin' information to satisfy the first limb of the test laid down by the CJEU in Aranyosi & Caldaru (Joined Cases C - 404/15 and C - 659/15). In other words, given the general information in relation to the poor state of prisons in Croatia, this Court was put on inquiry as to specific conditions of likely detention of the Respondent if surrendered. In those circumstances, a s. 20 request was sent to the IJA and a reply thereto received on the 9th of August 2024.

 

Section 20 Request re Prison Conditions

 

44.  In the said request of the 9 August 2024, the following was sought from the IJA in relation to prison conditions in Croatia:-

 

(i)                 Information in relation to the detention facility or institution wherein the Respondent would be detained or would likely be detained if he were surrendered on foot of this EAW;

(ii)              Information in relation to the general conditions of the detention regime in any such facility (including information as to personal space, sanitary and hygiene facilities, medical facilities, access to fresh air and daylight and out of cell time) and

-          Confirmation that he would be provided with a minimum of 3m2 individual space or, if this cannot be guaranteed for the entirety of his detention, any mitigating factors

-          Steps that would be taken to guarantee his safety in prison were he to be subjected to any threats

-          Confirmation that he will be medically assessed and provided with all appropriate medical treatment for his particular medical needs.

 

45.  A reply was received from the IJA on the 1 October 2024, wherein the following was stated:-

 

'1. The requested person should be detained in Prison in Dubrovnik.

2. Detained persons are guaranteed standards as following:-

1) Every detained person is provided 4m2 of space and their own bed with a mattress;

2) Within the room there are sanitary facilities and drinking water available;

3) Food is provided according to standards, minimally 3000 calories a day divided into three meals

4) Constant medical care is provided

5) Access to fresh air and daylight is provided

Detained persons have the right to spend at least 2 hour in fresh air a day (walk)

3.  Prison authorities do not know about any suspected threats to the personal safety of the requested person

4. The requested person will be medically assessed on arrival and provided with appropriate medical treatment. Prison in Dubrovnik has a nurse on their staff, proper medications are provided, there is a GP coming to prison if need and if any specialist procedures and tests are required, detained persons are transferred to General Hospital in Dubrovnik to undertake these procedures

5. Croatian prison system makes sure to follow all the European standards and more'

 

Affidavit filed on behalf of Respondent re Prison Conditions

 

46.  The Respondent subsequently filed an affidavit sworn by a Croatian lawyer, Oskar Benussi, who works in Dubrovnik and gives his opinion in relation to prison conditions. In that affidavit Mr Benussi states as follows:

 

a)      Under the previous law in force, namely Article 74 of the Law of Execution of Prison Sentences of 2001, there was a requirement that a prisoner have a minimum of 4m2 in each dormitory. However, under the law currently in force, Article 81 of the Law on Execution of Prison Sentences, there is no specific minimum space mandated but there is a general wording that 'accommodation should correspond to appropriate health, spatial, hygienic requirements and climactic conditions'. He says it is therefore 'evident' that the new law has worsened the conditions of detention of prisoners in Croatia;

b)      He offers the view that the prison in Dubrovnik is unsuitable and is only primarily intended for short term detention and for those with a residence in Dubrovnik;

c)      He says that in his experience this prison is overcrowded, and prisoners do not have 4m2 of their own private space in dormitories and it therefore often happens, because of this situation, sentenced prisoners are transferred elsewhere to serve their sentence; and

d)      He refers to a Report of the Ombudsman presented to the Croatian Parliament on the 29 March 2024 which stated that, on the 29 December 2023, this prison was overcrowded at 139% capacity.

 

47.  It is common case between the parties that the legal position in relation to assurances received from the IJA is, in broad summary, that an executing state must rely on submissions given by issuing authorities unless there are specific indications that those assurances cannot be relied upon - ML Case C-220/18 PPU.

 

48.  The Respondent says that the assurances cannot be relied upon in this case as inter alia:-

 

a.       There are specific indications contrary to what is set out in the assurances provided by the IJA and the assurances in their practical application will not provide a sufficient guarantee of compliance. In this regard the Respondent cites a report from the Ombudsman to the Croatian Parliament, dated the 10 October 2024, which was presented to the Croatian Parliament and states that as of the 29 December 2023, Dubrovnik prison was at 139% capacity. He also relies upon the contents of the affidavit of Mr Bennussi;

b.      Recent legislative changes in Croatia that removed a specific stipulation in Croatian law that a prisoner must be provided with a minimum space of 4m2;

c.       The comment in the letter of the 9 August 2024 that 'Croatian prison system makes sure to follow all the European standards' undermines the assurances as it is clear from the Country of Origin Information that there are issues with the Croatian prison system generally and the vindication of the fundamental rights of persons detained therein

 

49.  The Minister submits that the assurances received in that reply are categoric and, if accepted by this Court as reliable, are sufficient for the purposes of rejecting the Respondents submission that there is a real risk of a breach of his right if detained following surrender.

 

50.   The Minister further refers to Minister for Justice v Angel [2020] IEHC 699 where Burns J, in the course of setting out an exhaustive list of the principles to be applied when an argument is made that surrender ought to be refused on Article 3 grounds relating to prison conditions in a requesting state, said as follows in relation to assurances:-

 

'It is only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that, notwithstanding such an assurance, there is a real risk of the person concerned being subjected to inhuman or degrading treatment because of the conditions of that person's detention in the issuing state'

 

51.  The Applicant submits that there is no reason not to rely upon the assurances given by the IJA in this case. He says that the affidavit of Mr Benussi does not provide precise updated and reliable information such as to give specific indications that, despite these assurances, the detention conditions in Dubrovnik Prison are in breach of Article 3 of the Convention and/or Article 4 of the Charter. The Minister makes the following specific comments on Mr Benussi's evidence:-

 

a.       Whilst he states he is a lawyer who 'works and operates' in Dubrovnik, no indication is given as to the source of his knowledge in relation to Dubrovnik Prison;

b.      Although asked to inter alia refer to reports or caselaw on the subject, the only report he exhibits is one report of the Ombudsman, presented to the Croatian Parliament in 2024, which references statistics in relation to overcrowding at Dubrovnik on one specific date, namely a date in December 2023 when the prison was operating at 139% capacity. Nowhere in that report is it indicated whether this meant that the 'minimum level of severity' inherent in Article 3 was met, for example there is no suggestion that each prisoner was provided with less than 3m2;

c.       The Applicant refers to the fact that Croatia has been the subject of regular visits from the CPT, including in 2017 and 2022, and notwithstanding the focus of those reports being on conditions in individual prisons, Dubrovnik Prison has never featured as an institution of concern

d.      No caselaw relating to Dubrovnik Prison was cited. And indeed, none of the ECHR cases cited by the Respondent from 2023 concerned Dubrovnik Prison.

 

Decision on Objection re Prison Conditions

 

52.  In his Judgment in Minister for Justice v Anghel [2020] IEHC 699, Burns J set out an exhaustive list of principles to be applied where an argument is made that surrender ought to be refused on Article 3 grounds relating to prison conditions in the requesting state as follows:

'(a) the cornerstone of the Framework Decision is that member states, save in exceptional circumstances, are required to execute any European arrest warrant on the basis of the principles of mutual recognition and trust;

(b) a refusal to execute a European arrest warrant is intended to be an exception;

(c) one of the exceptions arises when there is a real or substantial risk of inhuman or degrading treatment contrary to Article 3 ECHR or Article 4 of the Charter of Fundamental Rights of the European Union ('the Charter');

(d) the prohibition on surrender where there is a real or substantia risk of inhuman or degrading treatment is mandatory. The objectives of the Framework Decision cannot defeat an established risk of ill-treatment;

(e) the burden rests upon a respondent to adduce evidence capable of proving that there are substantial / reasonable grounds for believing that if he or she were returned to the requesting country, he or she will be exposed to a real risk of being subjected to treatment contrary to article 3 ECHR;

(f) the threshold which a respondent must meet in order to prevent extradition is not a low one. There is a default presumption that the requesting country will act in good faith and will respect the requested person's fundamental rights;

(g) in examining whether there is a real risk, the Court should consider all of the material before it and if necessary, material obtained of its own motion;

(h) the Court may attach importance to reports of independent international human rights organisations or reports from government sources;

(i) the relevant time to consider the conditions in the requesting state is at the time of the hearing;

(j) when the personal space available to a detainee falls below 3m2 of floor space in multi occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 ECH arises. The burden of proof is then on the issuing state to rebut the presumption by demonstrating that there are factors capable of adequately compensating for the scarce allocation of personal space, and this presumption will normally be capable of being rebutted only if the following factors are cumulatively met;-

(1) the reductions in the required minimum space of 3m2 are short, occasional and minor

(2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of- cell activities; and

(3) the detainee is confined to what is when viewed generally, an appropriate detention facility, and there are no aggravating aspects of the conditions of his detention;

(k) a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of confinement in the issuing member state cannot lead, in itself, to the refusal to execute a European arrest warrant. Whenever the existence of such a risk is identified, it is then necessary for the executing judicial authority to make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk;

(l) an assurance provided by the competent authorities of the issuing state that, irrespective or where he is detained, the person will not suffer inhumane degrading treatment is something which the executing state cannot disregard and the executing judicial authority, in view of the mutual trust which must exist between the members states on which the European arrest warrant is based, must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of article 3 ECHR or article 4 of the Charter; and

(m) It is only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that, notwithstanding such an assurance, there is a real risk of the person concerned being subjected to inhuman or degrading treatment because of the conditions of that person's detention in the issuing member state'

 

53.  There have been a number of decisions of the ECtHR, as cited by the Respondent, which have criticised conditions in the Croatian prison estate and in specific prisons. Furthermore, there are a number of decisions of this Court where objections to surrender to Croatia on Article 3 grounds have been considered - see Minister for Justice v Dragan Rakanovic Greally J, [2024] IEHC 391, Minister for Justice v Dario Celik Keane J, [2023] IEHC 102 and Minister for Justice v Durbek [2024] IEHC 724.

 

54.  An article 3 ground of objection based on Croatian prison conditions was rejected by Keane J in Minister for Justice v Celik [2023] IEHC 102. The issues raised in that case followed on from the contents of the CPT Report of 2018. A number of requests were sent to the Croatian authorities seeking information on the specific conditions of detention which Mr Celik would likely face if surrendered. Having received responses thereto, Keane J was satisfied that firstly, prisoners staying in cells in the prison identified (Osijek Prison) as where it was likely the respondent would be held, would be provided with a minimum individual space of 4m2 for the entirety of their detention subject only to a possibility that, because of the influx of new prisoners assigned to pre-trial detention, some prisoners might not be provided with such space for the entirety of their detention and second, by the mitigating factors including a guarantee that the availability of limited personal space will be of shorter duration and to the smallest extent possible during their term of imprisonment and the guarantee that they would be afforded free movement outside the cell, participation in physical and other activities outside the cell and appropriate physical conditions in the cell.

 

55.  In her decision in Minister for Justice v Rakanovic [2024] IEHC 391, Greally J refused to surrender to Croatia, finding that in the circumstance of that case, there was a real risk of a breach of Article 3 of the Convention were the Respondent to be surrendered. In that case there was evidence that there was a risk that the Respondent would be detained in conditions which included having less than 3m2 space. Having received responses to s20 requests from the IJA, Greally J was not satisfied that the periods during which that respondent would be detained in a space of less than 3m2 could be ascertained and that the IJA had failed to specifically address the question of whether such reductions would be occasional and minor and furthermore she was not satisfied that there was sufficient evidence of mitigating factors.

 

56.  In Minister for Justice v Durbek [2024] IEHC 724, the Respondent raised a risk of her being detained in conditions which were in breach of her fundamental rights under the Convention and Charter. Requests for further information were sent to the issuing judicial authority and replies were received which indicated that, if detained following surrender, she would likely be detained in a women's prison in Bjelovar. Furthermore, assurances were given in relation to the conditions of detention in that facility. As there was no reason to doubt the reliability of such assurances, this Court ordered the surrender of Ms Durbek to Croatia.

 

57.  There is no doubt that issues of concern have been raised in relation to conditions of detention in various prisons in Croatia. There have been a number of reports from internationally respected bodies, such as the Committee for the Prevention of Torture and the US State Department, which have pointed to serious deficiencies in various prisons in Croatia such as might lead to a real possibility that persons detained in such institutions would be subject to inhuman and degrading treatment. The Respondent has also cited reports from bodies in Croatia which similarly raise such concerns. Furthermore, there have been a number of decisions, as cited by the Respondent, where the ECtHR has found breaches of the Convention in relation to particular prisons (but not Dubrovnik Prison) in that member state. At paragraph 42 above, there is set out a list of the specific issues of concern raised by the Respondent.

 

58.  Bearing in mind the principles of mutual trust and confidence which underlie the operation of the Framework Decision and the decision of the CJEU in Araynosi & Caldaru, this Court must adopt a two-stage approach when considering the objection to surrender in this case on the grounds of a risk of breach of fundamental rights. Having considered the Country-of-Origin information presented by the Respondent in this case, as was done by for example Greally J in Ratanovic, I issued a request to the IJA seeking information and assurances as to the specific conditions of detention that this Respondent would likely face if surrendered to Croatia.

 

59.  As is common case between the parties this Court this court must accept assurances given by issuing authorities unless there are specific indications that those assurances cannot be relied upon - ML Case C-220/18 PPU.

 

60.  I do not accept, as asserted by the Respondent, that there are specific indications contrary to that set out in the assurances provided by the IJA such as to raise any real concern as to the reliability or practical application of the same.

 

61.  In this regard the Respondent firstly cites a report, which is referred to in the Affidavit of Mr Benussi, from the Ombudsman to the Croatian Parliament, dated the 10 October 2024, which was presented to the Croatian Parliament and states that as of the 29 December 2023, Dubrovnik Prison was at 139% capacity. This is a snapshot in time and indicates that level of overcrowding on that date and does not, for example, indicate if this is an ongoing problem in that prison and, more importantly, the Respondent does not engage with whether this meant that the 'minimum level of severity' inherent in Article 3 was met as, for example there is no suggestion that each prisoner was provided with less than 3m2 on that date in Dubrovnik Prison.

 

62.  This is the only independent report cited by the Respondent and his lawyer in relation to Dubrovnik Prison, despite a request being made to Mr Benussi to refer to reports etc in relation to that prison. Whilst Mr Benussi says he works and operates in Dubrovnik, he does not provide the court with any real indication of the source of his knowledge as to conditions in Dubrovnik Prison.

 

63.  Insofar as the Respondent relies upon the recent changes in Croatian Law that removed a legislative requirement that each detainee be provided with a minimum of 4m2 and replaced this with a more flexible and general requirement in relation to space per prisoner, this does not in my view in any way undermine the specific assurances given by the IJA as to conditions of detention in Dubrovnik Prison.

 

64.  Furthermore, as noted by the Minister in his submissions, although Croatia has been the subject of regular visits from the CPT, including in 2017 and 2022, and notwithstanding the focus of those reports being on conditions in individual prisons, Dubrovnik Prison has never featured as an institution of concern. And finally, no caselaw relating to Dubrovnik Prison was cited. And indeed, none of the ECHR cases cited by the Respondent from 2023 concerned Dubrovnik Prison.

 

65.  I accept the submissions of the Minister that the response received from the IJA was categoric and are sufficient for the purpose of rebutting any concerns, based upon the Country-of-Origin information provided, that there is a real risk of breach of the Respondents rights if detained following surrender.

 

66.  This ground of objection is therefore dismissed.

 

67.  I therefore will make an order for the surrender of this Respondent to Croatia pursuant to Section 16 of the 2003 Act.