Min for Justice v Gheorghe

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Fennelly
• Judgment Date: 18 November 2009
• Neutral Citation: [2009] IESC 76
• Date: 18 November 2009

[2009] IESC 76

THE SUPREME COURT

Denham J.

Fennelly J.

MacMenamin J.

Record No. 122 EXT/2008

Record No: 121 EXT/2008

Min for Justice v Gheorghe

[2009] IESC 76

BETWEEN/

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Applicant/Respondent

-and-

FLORIN GHEORGHE

Respondents/Appellant

BETWEEN/

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Applicant/Respondent

-and-

VIOLETA CORINA GHEORGHE

Respondent/Appellant

MIN FOR JUSTICE v GHEORGIE UNREP PEART 9.4.2008 2008/41/8827 2008 IEHC 115

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S10

MIN FOR JUSTICE v TOBIN 2008 4 IR 42 2008/42/9105 2008 IESC 3

EUROPEAN ARREST WARRANT ACT 2003 S45

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 8

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 5

EUROPEAN ARREST WARRANT ACT 2003 S20

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S78

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

EUROPEAN ARREST WARRANT ACT 2003 S20(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 10

MIN FOR JUSTICE v MAREK UNREP SUPREME 5.2.2009 (EX TEMPORE)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.1

EUROPEAN ARREST WARRANT ACT 2003 S4A

EXTRADITION

European arrest warrant

Points of objection - Fleeing - Whether respondents "fled" from issuing state - Whether "fleeing" could take place before imposition of sentence - Whether Act required that sentence had to be imposed prior to person leaving issuing state - Whether sufficient that sentence imposed at time when surrender of person sought - Objective test - Relevance of subjective motivation - Credibility - Tried and convicted in absentia - Existence of provisions for retrial - Sufficiency of terms of undertaking regarding retrial - Effectiveness of retrial - Onus of proof - Whether family rights could prevent order for surrender - Minister for Justice v Gheorghe [2008] IEHC 115, (Unrep, HC, Peart J, 9/4/2008) mentioned- Minister for Justice v Sliczynski [2008] IESC 73, (Unrep, SC, 19/12/2008), Minister for Justice v Altaravicius [2006] IESC 23, [2006] 3 IR 148 and Minister for Justice v Marek (Ex tempore, SC, 5/2/2009) considered - Minister for Justice v Tobin [2008] IESC 3, [2008] 4 IR 42 distinguished - European Arrest Warrant Act 2003 (No 45), ss 4A 10, 16, 20, 45 - Criminal Justice (Terrorist Offences) Act 2005 (No 2), s 71 and 78 - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 23), s 6 - Council Framework Decision (2002/584/JHA), recital 5, 6, 8, 10 and article 1, 5 - Constitution of Ireland 1937, Article 41 - European Convention on Human Rights and Fundamental Freedoms, article 8 - Appeal dismissed; order of High Court affirmed (2008/122EXT & 2008/121EXT - SC - 18/11/2009) [2009] IESC 76

Minister for Justice v Gheorghe

1 This judgment deals with both of the appeals brought by the above-named appellants against the single judgment of Peart J. dated the 9 ^th April 2008 [2008] IEHC 115 and High Court orders that each of the appellants be delivered to the judicial authorities of Romania pursuant to section 16 of the European Arrest Warrant Act, 2003.

2 The appellants are husband and wife, of Romanian nationality and have been living in Ireland since the year 2000. Their surrender is sought by a Romanian judicial authority to serve sentences imposed upon them in their absence in 2005.

3 Two European arrest warrants were issued by a judicial authority in Romania on 17 ^th January 2007. They were endorsed by the High Court for execution on 25 ^th July 2007. The appellants were arrested on the 9 ^th and 14 ^th of November 2007 respectively. They were brought before the High Court pursuant to the European Arrest Warrant Act, 2003and remanded from time to time pending the hearing of the applications for their surrender and their own objections.

4 The High Court (Peart J.) disallowed their objections and made orders for their surrender. Each of the appellants argues, in these appeals, that the judgment of the High Court should be set aside and that their surrender to the judicial authorities of Romania be refused. They make the following three points:

1 they had not "fled" from Romania within the meaning of section 10 of the Act of 2003, as amended, and the Framework Decision (Council Framework Decision of 13 ^th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA)); they rely on the decision of this court in Minister for Justice Equality and Law Reform v Tobin [2008] 4 I.R. 42;

2 that the requirements of section 45 of the Act of 2003 had not been complied with, insofar as they had been tried in their absence: they had not been notified of the time and place where they would be tried; there was no sufficient undertaking from the issuing judicial authority that they would be retried, following surrender, for the offences of which they were convicted;

3 their surrender would contravene their private and family rights pursuant to Article 41 of the Constitution and Article 8 of the European Convention on Human Rights: they reside in Ireland as a family with their children, two of whom are Irish born.

5 In order to appreciate these points, it is necessary to summarise the facts as they appear from the two European arrest warrants and the affidavits filed in the High Court. Both appellants were convicted and sentenced on 24 ^th January 2005. Both appellants were convicted of two offences under Romanian law of two offences described in the translation of the warrants as "swindling concerning contracts." They each received sentences of twelve years and eight years imprisonment. The second-named appellant was convicted of the additional offence of forgery of administrative documents in an aggravated form for which she received a sentence of two years imprisonment. The sentences were merged into the longest sentence of twelve years. The sentences were subjected to review through an appeal process and were confirmed. A warrant for execution of the custodial sentence was issued in each case on 24 ^th January 2005 by the Bucharest Court of Appeal, 1 ^st Penal Section.

6 The description of the "swindling" offences contained in the warrants alleges that between August 1999 and March 2000 both appellants, acting together, engaged in complex fraudulent activities consisting of initiating "by the help of and in the name of other people some civil actions by which they requested the pronouncement of some judicial decisions confirming the sale - purchase of some lands that were owned in fact by other people." It is alleged that the respondents obtained a power of attorney, based on which they approached a number of administrative authorities, 'the court included, with the object of procuring a false judicial decision of their ownership of a building which was then sold to an injured party called Coca Radu, who is alleged to have paid substantial sums to the appellants. It is stated that the appellants acted similarly with regard to 3 other buildings situated in Bucharest. The details of these activities including various acts of deception and falsification of documents are set out at some length in the warrants. They include the allegedly dishonest involvement at several points of a named judge.

7 The appellants left Romania in August 2000. The first named appellant swore, in his first affidavit, that prior to his departure from Romania, he had never been questioned or informed of any accusations against him and that he was unaware of any criminal investigation into his activities. He denied the allegations, protested his innocence and said that he had an unblemished character with no previous convictions. The second-named appellant swore that, prior to leaving Romania, she had never been informed of any accusations against her. She accepted, however, that she had been contacted on one occasion in the spring of 2000 and asked to attend the public prosecutor's office to answer questions. She says that these questions related to what she had seen and heard and carried out on behalf of the judge, mentioned above, for whom she had been working for a period of time. At no time, she swore, was she informed that there were any allegations of impropriety or criminality made against her.

8 The appellants agreed on the account of the circumstances of their leaving Romania. The first named appellant had worked as a gardener and as an odd job or handyman. In the summer of 2000, both appellants were out of work and decided to leave Romania to make a new life elsewhere. They attended at the British Embassy in Bucharest for the purpose of obtaining a visa. They stated-falsely-that they were going on holiday and would be returning to Romania. The visa was duly granted. They left Romania together by plane to London on 22 ^nd August 2000. They then travelled by bus and coach to Belfast and from there to Dublin by taxi.

9 On arrival in Dublin, they attended the Refugee Application Centre and made application for Refugee Status. They have provided no further details of their refugee application.

10 They were joined in Ireland in April 2002 by their Romanian-born daughter. A son and a daughter respectively were born to them in Ireland in 2004 and 2005. Their children attend school in Ireland....