Minister for Justice and Equality v Iacobuta

JurisdictionIreland
JudgeMs. Justice Donnelly
Judgment Date20 March 2019
Neutral Citation[2019] IEHC 250
CourtHigh Court
Docket Number[RECORD NO. 2016 180 EXT]
Date20 March 2019

[2019] IEHC 250

THE HIGH COURT

Donnelly J.

[RECORD NO. 2016 180 EXT]

BETWEEN
MINISTER FOR JUSTICE AND EQUAILTY
APPLICANT
AND
CORNEL IACOBUTA
RESPONDENT

European arrest warrant – Surrender – Inhuman and degrading treatment – Applicant seeking the surrender of the respondent to Romania pursuant to a European arrest warrant – Whether the respondent was at real risk of being subjected to inhuman and degrading treatment on surrender by virtue of the prison conditions in Romania

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court for the surrender of the respondent, Mr Iacobuta, to the Republic of Romania pursuant to a European Arrest Warrant (EAW) dated 21st January, 2016 to serve an eight year sentence of imprisonment imposed upon him on the 16th April, 2015. That sentence was imposed in respect of four separate offences of rape, assault and two road traffic offences. At the hearing, counsel for the respondent raised three core arguments: a) an issue with the correspondence of one of the road traffic offences; b) fundamental rights claims under Articles 3, 6 and 8 of the European Convention on Human Rights (ECHR) arising from the respondent’s treatment by the Romanian legal system and concern arising from Romanian prison conditions; and c) an issue arising from the respondent’s trial in absentia in Romania.

Held by Donnelly J that the respondent’s surrender was not prohibited under the provisions of s. 38 of the European Arrest Warrant Act 2003. Donnelly J also rejected the respondent’s argument that he was at real risk of being subjected to inhuman and degrading treatment on surrender by virtue of the prison conditions in Romania. Donnelly J also rejected the respondent’s objection that his surrender would amount to a violation of his right to respect for his personal and family life. Donnelly J also rejected the respondent’s point of objection that his surrender should be prohibited because he was unfairly convicted at his first instance trial in 2015.

Donnelly J held that the Court required further information from the issuing judicial authority in respect of the guarantee provided in respect of the respondent’s trial in 2012 and an indication as to whether the conditions of Article 4a of the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States had been met regarding the appeal from the 2015 decision. Donnelly J considered that despite the length of time these proceedings had taken, it was appropriate and proportionate to seek this further information. Donnelly J also required the parties to address the issue of whether defence rights had been met in the circumstances of the 2012 trial and whether his surrender was therefore not prohibited by s. 45 of the 2003 Act.

Judgment approved.

JUDGMENT of Ms. Justice Donnelly delivered on the 20th day of March, 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 21st January, 2016 to serve an eight year sentence of imprisonment imposed upon him on the 16th April, 2015. This sentence was imposed in respect of four separate offences of rape, assault and two road traffic offences.

2

At the hearing, counsel for the respondent raised three core arguments:

a) an issue with the correspondence of one of the road traffic offences;

b) fundamental rights claims under Articles 3, 6 and 8 of the European Convention on Human Rights (‘ECHR’) arising from the respondent's treatment by the Romanian legal system and concern arising from Romanian prison conditions and;

c) an issue arising from the respondent's trial in absentia in Romania.

3

Before dealing with those matters, I must consider the uncontested issues:

A Member State that has given effect to the Framework Decision
4

The surrender provisions of the Act of 2003 apply to those member states of the European Union that the Minister for Foreign Affairs have designated as member states 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 European Arrest Warrant Act of 2003, as amended (‘the Act of 2003’).

Section 16(1) of the Act of 2003
5

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 s. 21A, s. 22, s. 23 or s. 24 of the Act of 2003 as amended, to refuse surrender,

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

Identity
6

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

Endorsement
7

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
8

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
9

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.

Contested matters
Section 38 of the Act of 2003
10

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 referred to 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 set out in the EAW with an offence in this jurisdiction.

11

If the offence does not come within that list, correspondence of offences (double criminality) 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’.

12

The issuing judicial authority has ticked the box of rape in point E(I) of the European arrest warrant. Ordinarily this is sufficient to establish that this is an offence to which Article 2 para 2 applies and correspondence is not required to be demonstrated. Unfortunately, the issuing judicial authority also completed point E(II) by including a reference to the rape offence. Point E (II) refers to a situation where a list offence is not being relied upon. In additional information, it was clarified by the issuing judicial authority that they were relying on Article 2, paragraph 2. I am satisfied that correspondence of this offence is not required as it is a ticked box offence. The provisions of minimum gravity are also met in respect of that offence.

13

The issuing judicial authority did not tick any box at point E (I) in respect of the other three offences. Correspondence/double criminality must be demonstrated in respect of these offences.

14

The factual description of the second offence is as follows:

‘… on 20 November 2011, around 19.00 after the consumption of the offense of rape, more precisely after the parties met with the witness Popistasu Vasile, the accused applied blows with the fist to the aggrieved party Enescu Elena's mouth, causing lesions demanding 5-6 days of medical care for healing.’

15

The above facts outline an offence of assault. These facts, if committed in this jurisdiction would amount to an offence contrary to s.2 of the Non-Fatal Offences Against the Person, Act, 1997 (assault) and s. 3 of the said Act (assault causing harm). Given the information provided it is also arguably the case that this is an offence of recklessly or intentionally causing serious harm contrary to s. 4 of the said Act, but I do not have to determine that issue. I am satisfied that there is correspondence of offences. The provisions of minimum gravity have also been reached.

16

The factual description of the third and fourth offences is as follows:

‘On 19 October 2008, he drove on the public roads of Dobrovat Town, the tractor U-650 M registered under plate no. DOBROVAT 017 IS, without possessing a driver's license and carried out sudden manoeuvres, which resulted in the overturning of the tractor, having as result the bodily injury of one of the passengers inside the tractor, passenger suffering from lesions demanding 40-45 days of medical care for healing. Soon afterwards, the convict left the scene of the accident.’

17

In Romanian law these offences are described as driving without a licence and leaving the scene of an accident. Section 38(1) of the Road Traffic Act, 1961 (‘the Act of 1961’) provides that ‘[ a] person shall not drive a mechanically propelled vehicle in a public place unless he holds a driving licence for the time being having effect and licensing him to drive the vehicle.’ I am satisfied that the “driving without a licence” offence corresponds with...

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