Minister for Justice and Equality v Pal

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 09 March 2020
• Neutral Citation: [2020] IEHC 143
• Docket Number: [No. 128 EXT. 2019]
• Court: High Court
• Date: 09 March 2020

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

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

PETRONEL PAL

RESPONDENT

[2020] IEHC 143

McDermott J.

[No. 128 EXT. 2019]

THE HIGH COURT

European arrest warrant – Surrender – Inhuman or degrading treatment – Applicant seeking the respondent’s surrender – Whether the respondent’s surrender was prohibited

Facts: The surrender of the respondent, Mr Pal, was sought by the government of Romania pursuant to a European Arrest Warrant dated 4th December, 2017. The warrant related to four criminal offences under the criminal law of Romania. The respondent was charged as follows: (a) that while in Ireland, he along with a number of other suspects “created an organised crime group led by the suspect A.I. and a number of other suspects” and “followed and stalked a number of persons considered to be rivals of the crime group led by the suspect A.I. and used extreme violence against such rivals. As a consequence, one of the victims died”; (b) aggravated murder as per Article 189, para. 1 of the Criminal Code of Romania; (c) an attempt to commit aggravated murder as per Article 32, para. 1 of the Romanian Criminal Code; and (d) aggravated robbery as per Article 233 of the Romanian Criminal Code. A number of points of objection were made to the respondent’s surrender: (a) the offences in respect of which surrender was sought all occurred outside the territory of Romania and were not amenable to prosecution within the State on an extraterritorial basis and as such, the respondent’s surrender was prohibited by s. 44 of the European Arrest Warrant Act 2003; and (b) the respondent’s surrender was prohibited under s. 37 (Fundamental Rights) of the European Arrest Warrant Act 2003 in that his surrender would be in breach of Article 3 of the European Convention of Human Rights because, if surrendered, there was a real or substantial risk that he would be subject to inhuman or degrading treatment due to the poor conditions in which prisoners are confined in Romania and the Romanian prison in which the respondent would be imprisoned if convicted remained unknown.

Held by the High Court (McDermott J) that the facts as outlined and the offence alleged of creating an organised criminal group provided a basis by reason of the offence created under s. 71(2) of the Criminal Justice Act 2006 to surrender the respondent in the circumstances of this case. McDermott J held that the respondent’s surrender for this offence was not prohibited by s. 44 of the 2003 Act. McDermott J was not satisfied that the applicant, the Minister for Justice and Equality, had established that the charge concerning the creation of a criminal group constituted an offence for which the respondent would be amenable to prosecution under s. 72 of the Criminal Justice (Amendment) Act 2009; unlike an offence under s. 71(2), it would require the court to compress the facts alleging his direct participation in these very specific occurrences into what was a very general, if not nebulous allegation which was not in any event addressed in any material or discernible way in the charge of creating an organised criminal group as framed by the Romanian authorities. McDermott J was satisfied that s. 44 enables Ireland to surrender the respondent in respect of a murder charge alleged to have been committed outside the territory of Romania in circumstances in which the Irish State would exercise extraterritorial jurisdiction in reciprocal circumstances. McDermott J was, therefore, satisfied that there were no grounds upon which to refuse the respondents surrender in respect of the charge of aggravated murder. McDermott J did not consider that the two offences of attempted murder and aggravated burglary or robbery which are the corresponding offences in Ireland to attempted aggravated murder or aggravated robbery are the subject of extra-territorial jurisdiction by Ireland as is the case with murder, a situation that is not alterable by reference to ss. 71(2) and 72 of the 2006 Act or otherwise. Consequently, McDermott J was not satisfied to direct the applicant’s surrender on those charges. McDermott J was satisfied that the respondent’s surrender did not give rise to a real or substantial risk that he would be subject to inhuman or degrading treatment if convicted on the charges set out in the warrant.

McDermott J held that the respondent may be surrendered to the Romanian authorities in respect of the charges of creating an organised criminal group in order to commit murder and the offence of aggravated murder.

Surrender ordered.

JUDGMENT of Mr. Justice McDermott delivered on the 9th day of March 2020

1 The surrender of the respondent is sought by the government of Romania pursuant to a European Arrest Warrant (EAW) dated 4th December, 2017. The warrant was endorsed by the High Court for execution on 8th April, 2019. The respondent was arrested by Garda Eoin Kane on foot of the endorsed warrant on 3rd May, 2019. In accordance with s. 13 of the European Arrest Warrant Act, 2003, the respondent was informed of his rights to consent to his early extradition to the requesting State under s. 15 and to obtain or be provided with professional legal advice and representation and, where appropriate, to obtain or be provided with the services of an interpreter. He indicated that he knew about the charges contained in the warrant when he was shown a copy of the warrant. He was served with a copy of the warrant in English and Romanian and a copy of s. 15 of the 2003 Act. No issue arises in respect of compliance with the statutory requirements in this regard.

2 On the same date, the respondent was brought before the High Court. The warrant was duly endorsed by the executing Garda who gave evidence of arrest and his compliance with the requisite statutory procedures. There is no issue concerning the lawfulness of the arrest or the procedures followed or the identification of the respondent as the person named in the warrant.

3 Under section 16(1) of the Act the High Court may make an order directing that a person be surrendered to the issuing state if it is satisfied that the person before it is the person in respect of whom the EAW was issued, that the warrant has been endorsed in accordance with s.13 for execution and states, where appropriate, the matters required by s.45, and that the High Court is not required, under ss. 21A, 22, 23 or 24 to refuse surrender and the surrender is not prohibited by Part 3 of the Act.

4 I am satisfied that Petronel Pal who was produced before the court is the same person in respect of whom the EAW issued and that the EAW was endorsed in accordance with the provisions of s.13. Having considered the documentation submitted to the court I am satisfied that I am not required to refuse surrender under ss. 21A, 22, 23 or 24 of the Act.

5 There are a number of issues which have been raised and fall to be considered under ss. 37, 38, 44 and 45 and Part 3 of the 2003 Act.

The offences

6 The warrant relates to four criminal offences under the criminal law of Romania. The accused is charged as follows:

(a) That while in Ireland, he along with a number of other suspects “created an organised crime group led by the suspect A.I. and a number of other suspects” and “followed and stalked a number of persons considered to be rivals of the crime group led by the suspect A.I. and used extreme violence against such rivals. As a consequence, one of the victims died”.

(b) Aggravated murder as per Article 189, para. 1 of the Criminal Code of Romania. It is alleged that on 10th April, 2014 at 7 Academy Square, Navan, Co. Meath, Ireland, the respondent along with a number of others broke into an apartment at that address and repeatedly used “extreme violence against the victim Busa Virgil who finally died on 13.04.2014 in Dublin, Ireland as a result of the trauma suffered. The suspects stole several of the victim's goods from the apartment: 1 Apple laptop, 1 Apple tablet and 1 Apple mobile phone, as well as 1 rucksack”.

(c) An attempt to commit aggravated murder as per Article 32, para. 1 of the Romanian Criminal Code. It is alleged that on 10th April, 2014, the defendant and others broke into the same apartment at 7 Academy Square located on the ground floor of the building where Busa Virgil was living and repeatedly used “extreme violence (with crowbars and knives) against the aggrieved parties Marea Ionut and Constantine Doina Marina, hitting vital parts of their bodies (the head). The suspects stole from the apartment several goods that belonged to the victim Busa Virgil: 1 Apple laptop, 1 Apple tablet and 1 Apple mobile phone, as well as 1 rucksack;”.

(d) Aggravated robbery as per Article 233 of the Romanian Criminal Code. It is alleged that on the same occasion the respondent with others broke into the apartment at 7 Academy Square and “repeatedly used extreme violence against the victim Busa Virgil and the aggrieved parties Marea Ionut and Constantine Doina Marina. The suspect stole from the apartment several goods that belonged to the victim Busa Virgil: 1 Apple laptop, 1 Apple tablet and 1 Apple mobile phone, as well as 1 rucksack;”.

7 The act of initiating or creating an organised crime group or joining or supporting such a group in any way is punishable under Article 376 of the Romanian Criminal Code by no less than 1 and no more than 5 years' imprisonment and a ban on the exercise of certain rights. When the offences included in the purpose of an organised crime group are punishable by life imprisonment or by a term of imprisonment exceeding 10 years, the offence “shall be punishable by no less than 3 and no more than 10 years of imprisonment and a ban on the exercise of certain rights”.

8 Aggravated murder under Article 189 of the Criminal Code committed in circumstances of premeditation, in order to facilitate or...