Ireland In Ireland, Section 37(1)(c) of the EAW Act of 2003 states that in order to refuse the execution of an EAW it is sufficient to establish that “there are reasonable grounds for believing that” the person would be “tortured or subjected to other inhuman or degrading treatment.” In the case of MJELR v Rettinger, the applicant submitted that if transferred to Poland he would face a risk of ill-treatment on the basis of Article 3 ECHR due to the overcrowding of prisons.137 The High Court had considered that the threshold of a real risk could not be reached in the absence of knowing the prison to which the applicant would be surrendered, i.e. that it would be important to know which prison the person would be sent to in order to establish the risk of ill-treatment for the concrete situation. The Irish Supreme Court on appeal, set out the test to be applied when considering whether or not to refuse a surrender where there is a risk that the individual would be subjected to conditions in breach of Article 3 ECHR. The Supreme Court referred to jurisprudence of the ECtHR. In particular it drew upon a number of principles enshrined in Saadi v Italy, and in doing so established important guidelines in relation to the standard of proof when examining extradition requests, which continues to be the relevant test in such cases. “Thus I would apply the following principles: (i) A Court should consider all the material before it, and if necessary material obtained of its own motion. (ii) A Court should examine whether there is a real risk, in a rigorous examination. (iii) The burden rests upon an application […] to adduce evidence capable of proving that there are substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR. (iv) It is open to a requesting State to dispel any doubts by evidence […] (vi) The court may attach importance to reports of independent international human rights organisations (vii) the mere possibility of ill treatment is not sufficient to establish an applicant’s case […]”138. The case of McGuigan before the Irish High Court involved a contested EAW issued in Lithuania, with the individual being subject of the EAW raising adverse prison conditions upon surrender.139 In challenging the surrender, the grounding affidavit relied on CPT reports, and a report of the Lithuanian Ombudsman’s Office, referring to the “up to date and authoritative evidence” of both. The Court applied the test in Rettinger, considered the reports by expert witnesses, the CPT and the report of the Lithuanian Ombudsperson and refused the surrender on the grounds of prison conditions of detention in Lithuania. Interestingly, the Court in that case, noted that “it is somewhat unfortunate that the report for the most recent visit by the CPT to Lithuania has not been published yet, as that would provide very up to date information to guide the Court in its decision.”140 The absolute nature of the prohibition of inhuman and degrading treatment was described in McGuigan noting that there was “no margin of appreciation. These rights are absolutely guaranteed.”141 137 Minister for Justice, Equality and Law Reform vs. Robert Rettinger [2010] IESC 45. 138 The Minister for Justice, Equality and Law Reform vs. Robert Rettinger [2010] IESC 45. Paragraph 27. 139 The Minister for Justice and Ors v McGuigan [2013] IEHC 216. 140 The Minister for Justice and Ors v McGuigan [2013] IEHC 216. 141 The Minister for Justice and Ors v McGuigan [2013] 216. 38