Min for Justice v Mihai

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 10 October 2011
• Neutral Citation: [2011] IEHC 386
• Court: High Court
• Date: 10 October 2011

[2011] IEHC 386

THE HIGH COURT

Record No 73 EXT/2011

Min for Justice v Mihai

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

- AND -

PALICO RENDO MIHAI

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

COUNCIL FRAMEWORK DECISION PAR 2

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

COUNCIL FRAMEWORK DECISION ART 1(1)

MIN FOR JUSTICE v ADAMS UNREP EDWARDS 3.10.2011 2011 IEHC 366

EUROPEAN ARREST WARRANT ACT 2003 S21(A)(2)

EUROPEAN ARREST WARRANT ACT 2003 S21(1)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

MINISTER FOR JUSTICE v L (D) UNREP EDWARDS 22.06.2011 2011 IEHC 248

NORRIS v GOVERNMENT OF UNITED STATES OF AMERICA NO2 2010 AC 487

MIN FOR JUSTICE v BEDNARCZYK UNREP EDWARDS 5.04.2011 2011 IEHC 136

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.05.2011 2011 IEHC 204

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART 3

EXTRADITION LAW

European Arrest Warrant

Charges - Offence - Interpretation - Exceptional circumstances - Ill-treatment - Whether it is necessary for charges to have been preferred - Reading words in context - Whether ambiguity resolved - Whether presumption rebutted - Ticked offence - Whether necessary to provide particulars of ticked box offences - Whether surrender prohibited due to exceptional circumstances - Whether interference with article 8 rights proportionate - Whether real risk of ill-treatment - MJELR v Adams [2011] IEHC 366 (Unrep, Edwards J, 3/10/2011) followed; MJELR v DL [2011] IEHC 248, (Unrep, Edwards J, 9/6/2011); Norris v Government of the USA (No 2) [2010] AC 487; MJELR v Bednarczyk [2011] IEHC 136, (Unrep, Edwards J, 5/4/2011) followed; MJELR v Mazurek [2011] IEHC 204, (Unrep, Edwards J 13/5/2011) and MJELR v Rettinger [2010] IESC 45 [2010] 3 IR 783 followed - European Arrest Warrant Act 2003 (No 45), ss 21A and 37 - Surrender ordered (2011/73 EXT - Edwards J - 18/11/2011) [2011] IEHC 386

Minister for Justice v Mihai

1 EX TEMPORE JUDGMENT of Mr Justice Edwards delivered on the 10th day of October 2011

2 This case comes before the Court by way of an application pursuant to s. 16 of the European Arrest Warrant Act 2003 (hereinafter the Act of 2003) in which the Minister for Justice for Equality as the executing judicial authority in this state, seeks an order from the Court surrendering the respondent in this case, Mr. Palico Rendo Mihai, to Romania which seeks his rendition on foot of a European arrest warrant dated the 5th February 2010, and which warrant was endorsed by my colleague, Ms. Justice Irvine on the 16th February 2010.

3 The European arrest warrant in this case relates to two offences in the nature of people trafficking and the procedure available to an issuing state under paragraph 2 of article 2 of the Framework Decision (Council Framework Decision on the European Arrest Warrant and the Surrender Procedures Between Member States, 13 ^th June, 2002, 2002/584/JHA) is invoked in this case by the ticking of the box in part E(1) of the warrant. Accordingly, providing the Court is satisfied with respect to the issue of minimum gravity, namely that each of the two offences in question is punishable by imprisonment for a maximum period of not less than 3 years, which is in fact the case, then the requirements of paragraph 2 of article 2 of the Framework Decision, as reflected in the provisions of s.38(1)(b) of the Act of 2003, are satisfied and the Court need not therefore be concerned with the issue of correspondence.

4 The Court must of course be satisfied that the person who has been brought before it is the person named in the European arrest warrant. In circumstances where no issue is raised as to identity and where this Court has before it an affidavit of the arresting officer, Garda John Paul Connolly, the Court is fully satisfied that the respondent is one and the same person as the Palico Rendo Mihai named in the European arrest warrant. It is further satisfied that he was duly arrested and brought before the High Court in accordance with s.13 as is required under the Act.

5 I should say that the Court is also satisfied that Romania is a designated state for the purposes of the European Arrest Warrant Act 2003.

6 So the real issues in this case relate to the specific objections raised by counsel for the respondent, Ms Sinead Gleeson B.L., all of which are very well pleaded in the Points of Objection filed on behalf of the respondent dated the 11th May 2011.

7 In the first instance a point is raised that places reliance upon section 21(A) of the European Arrest Warrant Act 2003, Section 21(A) provides:

8 2 "21A.-(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.

9 (2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.".

10 The case is made that in this particular instance the issuing state seeks to have the respondent returned for the purposes of a pre-prosecution investigative procedure. The case is further made that there has been no decision either to charge the respondent or indeed to prosecute the respondent. Of course, it is not necessary that a respondent should have been actually charged. Article 1(1) of the Framework Decision specifies that:

"The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

11 As this Court said in its judgment in Minister for Justice and Equality v Liam Adams (unreported High Court, Edwards J, 3 ^rd of October 2011):

"…it is legitimate to issue and employ a European arrest warrant 'for the purposes of conducting a criminal prosecution'" (the Court's emphasis). "The preferral of charges is part of the process of criminal prosecution. Accordingly, it is not necessary that formal charges should have been laid before a European arrest warrant is applied for."

12 Be that as it may, the respondent's case is that the warrant in this case is ambiguous and that the Court can't be satisfied that the issuing state does not want to have him returned for the purpose of ensuring his participation in an ongoing investigation.

13 The Court is not impressed with this argument, although it was well made. In my view the warrant is sufficiently clear in its terms when it is considered carefully and in conjunction with additional information that has been supplied and is dated the 12 April 2011.

14 First, the Court has had regard to the preamble to the warrant itself, wherein the competent judicial authority says;

"I request the arrest and surrendering to the judicial authorities of the following person Mihai Palica Rendo for the execution of penal pursuit or the execution of a detention or of a liberty debarring security measure."

15 Then it has had regard to the second part of the warrant, i.e. part B, wherein it says:

16 a "(B) The deed on which the arrest warrant is founded:

17 (1) The arrest warrant or the final Court decision. Pending trial arrest warrant no 8/January 25 ^th 2010, issued by the Timis Court of Law 220/30/2010.

18 Type: final Court Decision

19 Final and enforceable Court decision: penal conclusion number, 11/CC/January 25th 2010, pronounced by the Timus Law Court, final."

20 This Court regards the words "pending trial" as being of significance in that context. If this matter represented an ongoing investigation in circumstances where no decision had been taken to prosecute the respondent there would be no need to, and indeed it would make no logical sense to, issue a domestic arrest warrant "pending trial." The use of the words "pending trial" strongly suggests to this Court that a decision has been made to try Mr. Mihai, and that pending his trial it was considered necessary to seek a domestic warrant for his arrest, which warrant was duly applied for and obtained on the 25 January 2010. Moreover, the Court's clear understanding is that, subsequently, when it proved impossible to execute that domestic arrest warrant, the further step was taken of applying for and obtaining the European arrest warrant with which we are presently concerned.

21 The Court is further reinforced in its view by the material contained in part D of the warrant which says:

22 a "(D) The decision pronounced in absence during a judicial procedure on the course of which the persons acts which are not represented:

23 · -The person did not appear at the judgement term granted for the solving of the proposal of pending trial measure even though he has been legally notified at the known residence, the indictee circumvented from the penal pursuit."

24 Now, the language is admittedly torturous, and that is one of the...