Minister for Justice and Equality v Tache

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Donnelly
Judgment Date11 Feb 2019
Neutral Citation[2019] IEHC 68
Docket Number[RECORD NO. 2017 293 EXT]

[2019] IEHC 68

THE HIGH COURT

Donnelly J.

[RECORD NO. 2017 293 EXT]

BETWEEN
MINISTER FOR JUSTICE AND EQUAILTY
APPLICANT
AND
RAZVAN TACHE
RESPONDENT

European arrest warrant – Surrender – Personal rights – Applicant seeking the surrender of the respondent pursuant to a European arrest warrant – Whether there was cogent evidence that established reasonable grounds for believing that the respondent was at real risk of being subjected to inhuman and degrading conditions

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court for the surrender of the respondent, Mr Tache, to the Republic of Romania pursuant to a European Arrest Warrant dated 24th November, 2016, to serve a composite sentence of 1 year and 81 days imprisonment. The sentence was imposed upon him on the 13th October, 2016 in respect of three offences: having sexual intercourse with an underage girl between April and October 2012 who was 14 years of age at the material time; and two concurrent forestry offences involving the cutting and the unlawful removal of 12 unmarked turkey oak and hornbeam trees that belonged to the Stejarul Forest Division in the Fârdea area of Romania. At the hearing, counsel for the respondent raised two core arguments; a personal rights claim under Articles 3 and 8 of the European Convention on Human Rights resulting from the Romanian prison conditions and an issue arising from the respondent’s trial in absentia in Romania. He also raised a point concerning the lack of clarity with regard to the date of the sentence.

Held by Donnelly J that there was no cogent evidence that established reasonable grounds for believing that the respondent was at real risk of being subjected to inhuman and degrading conditions by virtue of being detained in Rahova Bucharest Penitentiary during the 21 day quarantine and observations period or Timisoara penitentiary. Donnelly J held that the surrender of the respondent was not prohibited by s. 37 of the European Arrest Warrant Act 2003 on the basis that there was a real risk of a violation of Article 3 of the European Convention on Human Rights. Donnelly J noted that it would only be exceptionally that the High Court would refuse extradition on Article 8 grounds. Donnelly J held that the facts of this case were very far removed from coming close to a case which could be said to be truly exceptional in its features.

Donnelly J held that she would make an order for the respondent’s surrender to the person duly authorised by the issuing state to receive him.

Application granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 11th day of February, 2019
1

This is an application for the surrender of the respondent to the Republic of Romania (‘Romania’) pursuant to a European Arrest Warrant (‘EAW’) dated 24th November, 2016, to serve a composite sentence of 1 year and 81 days imprisonment. This sentence was imposed upon him on the 13th October, 2016 in respect of three offences: having sexual intercourse with an underage girl between April and October 2012 who was 14 years of age at the material time; and two concurrent forestry offences involving the cutting and the unlawful removal of 12 unmarked turkey oak and hornbeam trees that belonged to the Stejarul Forest Division in the Fârdea area of Romania.

2

At the hearing, counsel for the respondent raised two core arguments; a personal rights claim under Articles 3 and 8 of the European Convention on Human Rights resulting from the Romanian prison conditions and an issue arising from the respondent's trial in absentia in Romania. He also raised a point concerning the lack of clarity with regard to the date of the sentence. Before turning to those matters, I will deal with the uncontested issues:

The background to the European Arrest Warrant
A Member State that has given effect to the Framework Decision
3

The surrender provisions of the European Arrest Warrant Act of 2003 as amended (‘the Act of 2003’) apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’). I am satisfied that the Minister for Foreign Affairs has designated Romania as a Member State for the purposes of the Act of 2003.

Section 16(1) of the Act
4

Under the provisions of s. 16 (1) of the Act of 2003, the High Court may make an order directing that the person be surrendered to the issuing state provided that:

a) the High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,

b) the EAW has been endorsed in accordance with s. 13 for execution,

c) the EAW states, where appropriate, the matters required by s. 45,

d) The High Court is not required, under ss. 21A, 22, 23 or 24 of the Act of 2003, to refuse surrender,

e) The surrender is not prohibited by Part 3 of the Act of 2003.

Identity
5

I am satisfied on the basis of the affidavit Garda Padraig Brennan member of An Garda Síochána, and the details set out in the EAW, that the respondent, Razvan Tache, who appears before me, is the person in respect of whom the EAW has issued.

Endorsement
6

I am satisfied that the EAW has been endorsed in accordance with s. 13 for execution in this jurisdiction.

Sections 21A, 22, 23 and 24 of the Act of 2003
7

Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the respondent's surrender under the above provisions of the Act of 2003.

Part 3 of the Act of 2003 as amended
8

Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003 and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

Section 38 of the Act of 2003
9

Section 38 of the Act of 2003 provides for two situations in which surrender may be ordered for specific offences. If the offence is an offence set out in para. 2 Article 2 of the 2002 Framework Decision then, provided the requirements of minimum gravity in terms of available sentencing powers have been met, there is no requirement to find correspondence for the offence for which the person is requested with an offence in this jurisdiction. If the offence does not come within that list, correspondence and a different requirement of minimum gravity must be shown. Section 5 of the Act of 2003 states that for the purposes of the Act, an offence specified in an EAW corresponds to an offence under the law of the State ‘ where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the EAW is issued, constitute an offence under the law of the State’.

10

The issuing judicial authority has not opted for the ticked box offence and has given a full description of the offences in E2. Correspondence must be demonstrated.

11

The factual description of the first offence is as follows:

‘On December 12, 2013 the defendant Tache Razvan committed two concurrent forestry offences, namely: he cut a number of 12 unmarked (turkey oak and hornbeam trees), belonging to ‘Stejarul’ Forest Division’

The detailed description provided at EII in the EAW states that this was done without right.

12

The above description makes clear that the offence being described is one of criminal damage. This is an offence contrary to section 2(1) of the Criminal Damage Act, 1991 which states ‘[a] person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence’. This Court is satisfied that the “cutting” of the trees belonging to the Stejarul Forest Division without right is sufficient to come within this definition of criminal damage if committed in this jurisdiction. Therefore, this Court is satisfied that there is correspondence with an offence in this jurisdiction.

13

The factual description of the second offence is as follows:

‘…and stole the 12 unmarked turkey oak and hornbeam trees’

14

The above description makes clear that the offence being described is one of theft. This is an offence contrary to section 4(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 which states that ‘a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.’ This Court is satisfied that the “stealing” of the trees is sufficient to come within this definition of theft. Therefore, this Court is satisfied that there is correspondence with this offence.

15

The factual description of the third offence is as follows:

‘Between April 2012 and October 2012, the defendant Tache Razvan committed an offence: he had sexual relations with the underage girl…. who was under the age of 15.’

16

The above description makes clear that the offence being described is one of sexual intercourse with a child under 15 years of age. It is possible to give the term ‘sexual relations’ its ordinary and common meaning; sexual intercourse. That is not necessary because the EAW also states that the crime is one of ‘sexual intercourse with a juvenile’. It is appropriate to take that into account as the EAW must be read as a whole (per Minister for Justice Equality and Law Reform -v- Dolny [2009] IESC 48).

17

Sexual intercourse with a child under the age of 15 years is the offence of defilement contrary to section 2(1) of the Criminal Law (Sexual Offences) Act, 2006 as amended by section 16 of Criminal Law (Sexual Offences) Act, 2017 states ‘[a] person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an...

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5 cases
  • Minister for Justice and Equality v Iacobuta
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    • 20 Marzo 2019
    ...on Human Rights. Inhumane and Degrading Treatment: Article 3 of the European Convention on Human Rights 36 In the recent case of Minister for Justice and Equality v Tache [2019] IEHC 68 this Court dealt with a claim that the conditions in Romanian prisons violated Article 3 of the European......
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    ...of detention under Article 3 … .” The 3 sq.m space excluded sanitary area space. 86 In Minister for Justice and Equality v Tache [2019] IEHC 68 (delivered on the 11th February, 2019) Donnelly J. considered the deficiencies in Romanian prison conditions under Article 3 in the context of the ......
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    ...J.) in the cases of Minister for Justice and Equality v. Iacobuta [2019] IEHC 250, and Minister for Justice and Equality v. Tache [2019] IEHC 68, in which cases the Court made orders for surrender of each of those respondents, having carried out a detailed analysis of the conditions of dete......
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    ...decisions of Donnelly J. in Minister for Justice and Equality v. Iacobuta [2019] IEHC 250 and Minister for Justice and Equality v. Tache [2019] IEHC 68. In each of these cases, Donnelly J. was required to consider arguments against surrender grounded upon a likely violation of Article 3 of ......
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