Minister for Justice and Equality v Magdalena Rostas

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 01 July 2014
• Neutral Citation: [2014] IEHC 391
• Court: High Court
• Date: 01 July 2014

Min for Justice v Rostas

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

MAGDALENA ROSTAS

Respondent

[2014] IEHC 391

Record No.: 244 EXT/2012

THE HIGH COURT

Criminal Law - European Arrest Warrant – s. 13, s. 16, s. 37(1) of the European Arrest Warrant Act 2003 – ECHR - Charter of Fundamental Rights of the European Union - Constitution of Ireland - Discrimination

Facts: The respondent was the subject of a European Arrest Warrant. Romania sought the rendition of the respondent for the purpose of executing a sentence of imprisonment imposed in 1996 for a robbery-type offence. The warrant was endorsed for execution by the High Court in Ireland pursuant to s. 13 of the European Arrest Warrant Act 2003 ('the 2003 Act'). A date was fixed for the surrender hearing. The court had to determine whether or not to make an order pursuant to s. 16 of the 2003 Act to surrender the respondent to Romania. The respondent raised a number of objections to being surrendered. The first was that she had received an unfair trial and was wrongly convicted before the relevant District Court in Romania. The respondent also argued that if she were surrendered she would be discriminated against because she was Roma. Furthermore, it was contended that the respondent"s surrender would be a disproportionate measure breaching the respondent"s human rights and the rights of her family members. In particular, the right to respect for family life, and enjoyment of family life as guaranteed under the ECHR, the Charter of Fundamental Rights of the European Union and the Constitution of Ireland. Lastly, the respondent contended that her surrender was prohibited by s. 37(1) of the 2003 Act.

Held by Edwards J: The court is usually reluctant to conduct an enquiry into the fairness of convictions in these types of cases. However, in this instance the court decided an enquiry was appropriate in the interests of justice because the respondent"s fundamental rights needed to be upheld. The ill-treatment and abuse of Roma suspects in Romania in the 1990"s had been reported in a wide range of respected and reliable sources. The court gave consideration to all of the reported sources exhibited and the Strasbourg jurisprudence in relation to the discrimination against the Roma in Romania. The court had concerns about the fairness of the respondent"s trial in Romania and the sentence imposed in 1996. The court believed that the respondent suffered a flagrant denial of justice and upheld the s. 37(1)(a) objection. The court did not uphold the objection in relation to the right to respect for family life. The primary consideration for the court in this regard was what was in the best interests of the children. The rendition would not have had extraordinary consequences for the respondent or her family. The respondent had an extensive social and family network meaning there was little chance that the children would be taken into care. The proposed rendition was not disproportionate to the legitimate aim being pursued by the issuing state. However, the court refused to surrender the respondent. It determined that there was a real risk that the respondent suffered a flagrant denial of justice in respect of her trial resulting in the conviction and sentence that led to the European Arrest Warrant being issued.

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(II)

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.2) ORDER SI 59/2007

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.2) ORDER SI 59/2007 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.2) ORDER SI 59/2007 SCHED

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

MOLDOVAN & ORS v ROMANIA (NO.1) APPLICATION NO. 41138/98 & 64320/01 5.7.2005 2005 ECHR 458

MOLDOVAN & ORS v ROMANIA (NO.2) APPLICATION NO. 41138/98 & 64320/01 12.7.2005 2005 ECHR 473

CARABULEA v ROMANIA APPLICATION NO. 45661/99 13.7.2010

COBZARU v ROMANIA APPLICATION NO. 48254/99 26.7.2007 2008 47 EHRR 10

STOICA v ROMANIA APPLICATION NO. 42722/02 4.3.2008

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 14

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 6

OTHMAN (ABU QATADA) v UK APPLICATION NO. 8139/09 17.1.2012 2012 32 BHRC 62

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783

EEC DIR 2000/43

LESTER PANNICK & HERBERG HUMAN RIGHTS LAW & PRACTICE 3ED

R (EUROPA ROMA RIGHTS CENTRE) v IMMIGRATION OFFICER AT PRAGUE AIRPORT 2005 2 AC 1

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 8

CHARTER OF THE FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

CHARTER OF THE FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24

MIN FOR JUSTICE v E (T) UNREP EDWARDS 19.6.2013 2013/32/9460 2013 IEHC 323

MIN FOR JUSTICE v G (RP) UNREP EDWARDS 18.7.2013 2013/32/9609 2013 IEHC 54

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)

CONSTITUTION ART 41

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(C)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(C)(II)

STAUDER v CITY OF ULM 1969 ECR 419

INTERNATIONALE HANDELGESELLSCHAFT v EINFUHRUND VORRATSTELLE FUR GETREIDE UND FUTTERMITTEL 1970 ECR 1125

OPINION 2/94 1996 ECR I-1759 28.3.1996

TREATY ON EUROPEAN UNION ART 2

TREATY ON EUROPEAN UNION ART 6

CHARTER OF THE FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 21

CHARTER OF THE FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TITLE VI

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) RECITAL 12

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

SAADI v ITALY 2009 49 EHRR 30 24 BHRC 123 2008 IMM AR 519 2008 INLR 621

CHARTER OF THE FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 20

MIN FOR JUSTICE v MARJASZ UNREP EDWARDS 24.4.2012 2012/27/7834 2012 IEHC 233

LACATUS & ORS v ROMANIA APPLICATION NO. 12694/04 13.2.2013

GERGELY v HUNGARY APPLICATION NO. 23364/03 31.10.2006

KALANYOS v ROMANIA APPLICATION NO. 57884/00 26.4.2007

TANASE & ORS v ROMANIA APPLICATION NO. 62954/00 26.5.2009

1 JUDGMENT of Mr. Justice Edwards delivered on the 1st day of July, 2014.

Introduction:

2 1. The respondent is the subject of a European arrest warrant dated the 1 ^st of September, 2009, issued by a competent judicial authority in Romania which seeks the rendition of the respondent for the purpose of the execution of a sentence of 3 years and 4 months imprisonment imposed upon her by a court in Romania in 1996, of which 1091 days remains to be served, in respect of the single robbery-type offence particularised in Part (e) of the warrant. The warrant was endorsed for execution in this jurisdiction by the High Court (Herbert J.) on the 28 ^th of August, 2012. The respondent was arrested in execution of the warrant on the 27 ^th of October, 2012 by Garda Barry Keegan and was brought before the High Court on the same day pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 2. The respondent does not consent to her surrender to Romania. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive her. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependent upon a judicial finding that they have been so satisfied.

Uncontroversial s.16 issues

4 3. The Court has received and has scrutinised a true copy of the European arrest warrant in this case. Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.

5 4. The Court has also received an affidavit of Garda Barry Keegan sworn on the 2 ^nd April, 2013, testifying as to his arrest of the respondent. He states at para. 3 of his affidavit that the woman that he arrested acknowledged that she was Magdalena Rostas. Moreover, she acknowledged the part (a) details when they were put to her. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

6 5. I am satisfied following my consideration of these matters that:

7 (a) The European arrest warrant was endorsed for execution in this state in accordance with s.13 of the Act of 2003;

8 (b) The warrant was duly executed;

9 (c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

10 (d) The warrant is in the correct...