Attorney General v Sergiu Gindea

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Paul Burns
• Judgment Date: 20 December 2021
• Neutral Citation: [2021] IEHC 828
• Year: 2021
• Docket Number: [2019 No. 393 EXT.]

In the Matter of the Extradition Act, 1965, as Amended

Between

Attorney General

Applicant

and

Sergiu Gindea

Respondent

[2021] IEHC 828

[2019 No. 393 EXT.]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 20th day of December, 2021

1 In this application, the applicant seeks an order pursuant to s. 29(1) of the Extradition Act, 1965, as amended (“the Act of 1965”), committing the respondent, a Moldovan citizen, to prison, there to await the order of the Minister for Justice (“the Minister”) for the respondent's extradition to the Republic of Moldova (“Moldova”).

2 I am satisfied that a request for the extradition of the respondent to Moldova has been made in writing in accordance with s. 23 of the Act of 1965 and received by the Minister on 20th December, 2018, as confirmed in the certificate of the Minister dated 27th November, 2019, which was completed for the purposes of s. 26(1)(a) of the Act of 1965.

3 The High Court issued a warrant for the arrest of the respondent on 20th December, 2019 which was duly executed on 8th October, 2020.

4 The documentation received from the requesting state consists of:-

• (i) A request for the extradition of the respondent dated 3rd December, 2018, a further letter dated 30th May, 2019 setting out further details of the alleged offence and enclosing relevant statutory provisions;

• (ii) A copy of the ruling on charging dated 2nd October, 2018;

• (iii) A copy indictment dated 23rd August, 2017, initial order for preventative arrest in default of pre-trial appearance of the respondent dated 29th August, 2017;

• (iv) An extract from the State Register of the Population setting out details concerning the identity of the respondent, including a photograph; and

• (v) Relevant extracts from the Criminal Code of the Republic of Moldova.

5 The surrender of the respondent is sought in order that he may be prosecuted in Moldova in respect of a single count of fraud contrary to Article 190(5) of the Moldovan Criminal Code. This offence carries a maximum penalty of between 8 and 15 years' imprisonment.

6 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the request for extradition has been made. This was not put in issue.

7 I am satisfied that Moldova is a state to which Part 2 of the Act of 1965 applies and that Moldova is a designated extradition state.

8 I am satisfied that the minimum gravity requirements set out at s. 10 of the Act of 1965 have been met. The offence in respect of which extradition is sought carries a maximum penalty of between 8 and 15 years' imprisonment in the requesting state. The corresponding offence in this State carries a maximum penalty of 5 years' imprisonment.

9 I am satisfied that, in accordance with s. 10 of the Act of 1965, the requisite correspondence as between the offence in respect of which extradition is sought and an offence under the law of the State has been established. I find the relevant corresponding offence in this State to be an offence contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. This is discussed further herein.

10 I am satisfied that a warrant for the arrest of the respondent, dated 29th August, 2017, was issued by a judge of Chisinau Court in Moldova and a copy of same is before the Court.

11 I am satisfied that an adequate statement of the offence for which extradition is requested has been put before the Court by way of the ordinance of indictment dated 23rd August, 2017. In essence, it is alleged that the respondent transferred ownership of a property located on 21 Gr. Vieru Street in Ialoveni City in return for a loan of the equivalent of €22,000. At the end of 2011-early 2012 the respondent, knowing that the property in question did not belong to him, agreed to sell same to [G.P.] and received from [G.P.] the equivalent of €34,000.

12 I am satisfied that an accurate description of the requested person is set out in the documents provided.

13 The respondent concedes the formal proofs in respect of the request for his extradition but objects to extradition on the following grounds:-

• (a) It is not possible to establish correspondence as between the offence in respect of which extradition is sought and an offence under the law of the State; and

• (b) If surrendered, the respondent's fundamental rights would not be respected, in particular:-

  • (i) his right not to be subjected to inhuman or degrading treatment, and

  • (ii) his right to a private and family life.

Correspondence

14 Counsel on behalf of the respondent submits that correspondence between the offence in respect of which extradition is sought and the offence nominated by the applicant as the corresponding offence, viz. deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, could not be established. He submits that, on the description of the offence set out in the indictment, there was no suggestion that the respondent had, by a deception, induced [G.P.] into purchasing the property. I am satisfied that it is alleged in the indictment that the respondent “ aiming at deception” and “ although he knew for certain that the property in question did not belong to him” agreed to sell the property to [G.P.] “ concealing the fact in question”. I am satisfied that what is alleged is that, by holding himself out as the owner of the property, the respondent dishonestly, by deception, induced [G.P.] to believe that the respondent was the owner of the property and could transfer title thereto and further induced [G.P.] to pay over to the respondent a sum in respect of the purchase of the property. I am satisfied that correspondence can be established between the offence in respect of which extradition is sought and an offence under the law of the State, viz. deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. I reject the respondent's objection to surrender based upon any lack of correspondence.

Prison Conditions

15 The respondent's solicitor, Ms. Danica Kinane, swore an affidavit dated 22nd January, 2021 in which she exhibited a number of reports concerning prison conditions and treatment of detainees in Moldovan prisons, including:-

She also exhibits a report from a Moldovan lawyer, Ms. Ana Chian.

• — Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), dated 15th September, 2020;

• — United States Department of State Human Rights Report on Moldova, 2019;

• — Report of the United Nations Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) on Moldova, dated 21st December, 2017.

16 The expert report of Ms. Chian indicates that the preventive arrest of the respondent is to be executed in Penitentiary 13, Chisinau Prison. She opines that the detention conditions in Penitentiary 13 in Chisinau Prison are very poor, including overcrowding, and detention therein would constitute inhuman and degrading treatment in breach of his rights under Article 3 of the European Convention on Human Rights (“the ECHR”). She refers to various cases which have come before the European Court of Human Rights (“the ECtHR”) where breaches of Article 3 ECHR due to prison conditions in Moldova have been declared.

17 The CPT report of 15th September, 2020 notes that some improvements to the material conditions at Chisinau Prison have been made since a visit in 2018 but the overall conditions of detention remain unsatisfactory. Cells were in a poor state of repair, had very limited access to natural light and were poorly ventilated. Criticisms were also made of the general state of hygiene and toilet facilities. Concern was expressed that many remand prisoners continued to be held in overcrowded cells with living space often below 4 square metres. The CPT also expressed surprise at the cramped and overcrowded conditions in which some remand prisoners were held while recently renovated four-person cells appeared either empty or to hold only one person and the prison management were not in a position to provide any convincing explanation for this.

18 The United States Department of State Report of 2019 notes that there were more than 200 alleged incidents of torture or inhuman treatment at government facilities. The human rights ombudsmen reported that most allegations of torture were carried out at Penitentiary 13 in Chisinau Prison and a number of other institutions. It noted concerns in relation to intimidation of, and violence to, inmates carried out by other prisoners with the tacit agreement of prison management through informal prison gang leaders. Conditions at Penitentiary 13 in Chisinau Prison were reported as “ the worst in the country”.

19 The CPT found that the problem with inter-prisoner violence and intimidation remained as acute as ever it had in the past and was largely linked to well-established informal hierarchies in the prison system. The CPT found that, despite the vehement denials of the Moldovan authorities in their responses to the CPT's previous prison visit reports, it was clear that there was tacit collaboration between the management of the prisons visited and the informal prisoner hierarchies as regards maintaining order among inmates and ensuring the smooth operation of the establishments. Most strikingly, the informal hierarchy had a say in the initial classification and placement in cells of newly admitted prisoners as well as on a decision as to which prisoners were permitted to work (see paras. 50, 57 and 58 of the Report).

20 By letter dated 23rd February, 2021, presumably obtained as a result of the various reports exhibited in the affidavit of the respondent's solicitor, the Ministry of Justice of Moldova indicates that the respondent will be temporarily assigned to Penitentiary 13, Chisinau Prison....