Minister for Justice and Equality v Iancu

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 01 June 2020
• Neutral Citation: [2020] IEHC 316
• Docket Number: RECORD NUMBER 2017/187 EXT
• Court: High Court
• Date: 01 June 2020

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

RADU IANCU

RESPONDENT

[2020] IEHC 316

Paul Burns J.

RECORD NUMBER 2017/187 EXT

THE HIGH COURT

European arrest warrant – Surrender – Prohibition – Applicant seeking an order for the surrender of the respondent to Romania pursuant to a European arrest warrant – Whether the respondent’s surrender was prohibited

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Radu, to Romania pursuant to a European arrest warrant dated 11th May, 2017 issued by the President of the Court of Arad, as the issuing judicial authority. The surrender of the respondent was sought for the enforcement of a court order imposing a sentence of 1 year and 4 months imprisonment in respect of three offences, viz. driving a motor vehicle without a license, forging of an official document and use of a forged official document. The warrant was endorsed by the High Court on 17th July, 2017 and the respondent was arrested and brought before the Court on 17th February, 2020. The respondent delivered the following points of objection: (i) that his surrender was prohibited by s. 37 of the European Arrest Warrant Act 2003, as amended, on the basis that there was a real risk that his rights pursuant to article 3 of the European Convention on Human Rights and/or article 4 of the Charter of Fundamental Rights of the European Union will not be respected in Romania due to the detention conditions in Romanian prisons, in that the respondent would be exposed to inhuman or degrading treatment; (ii) that correspondence was not established in respect of the offence of driving without a licence; (iii) that the respondent’s surrender was prohibited on the basis that the proceedings constituted an abuse of process in circumstances where the surrender of the respondent on foot of the same warrant had been refused by a Northern Ireland court. At the hearing of the matter, the latter two grounds of objection were not pressed.

Held by Burns J that he would dismiss the respondent’s objection that his surrender was prohibited by virtue of s. 37 of the 2003 Act. Burns J was satisfied that the surrender of the respondent was not prohibited by virtue of part 3 of the 2003 Act.

Burns J held that the Court would make an order pursuant to s. 16 of the 2003 Act for the surrender of the respondent to Romania.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 1st day of June, 2020.

1 By this application, the applicant seeks an order for the surrender of the respondent to Romania pursuant to a European arrest warrant dated 11th May, 2017 (“the warrant”) issued by Lucian Balas, President of the Court of Arad, as the issuing judicial authority. The surrender of the respondent is sought for the enforcement of a Court Order imposing a sentence of 1 year and 4 months imprisonment in respect of three offences, viz. driving a motor vehicle without a license, forging of an official document and use of a forged official document.

2 The warrant was endorsed by the High Court on 17th July, 2017 and the respondent was arrested and brought before this Court on 17th February, 2020.

3 I am satisfied that the person before the Court is the person in respect of whom the warrant was issued. This was not put in issue by the respondent.

4 I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003, as amended (“the Act of 2003”), arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

5 I am satisfied that the minimum gravity requirements of the Act of 2003, as amended, are met. The term of imprisonment in respect of which the respondent's surrender is sought amounts to 1 year and 4 months.

6 I am satisfied that the warrant indicates the matters required by s. 45 of the Act of 2003.

7 The respondent delivered Points of Objection which can be summarised as follows:-

(i) that his surrender was prohibited by s. 37 of the Act of 2003 on the basis that there is a real risk that his rights pursuant to article 3 of the European Convention on Human Rights and/or article 4 of the Charter of Fundamental Rights of the European Union will not be respected in Romania due to the detention conditions in Romanian prisons, in that the respondent would be exposed to inhuman or degrading treatment;

(ii) that correspondence was not established in respect of the offence of driving without a licence;

(iii) that the respondent's surrender was prohibited on the basis that the proceedings herein constituted an abuse of process in circumstances where the surrender of the respondent on foot of the same warrant had been refused by a Northern Ireland court.

At the hearing of the matter, the latter two grounds of objection were not pressed. I am satisfied that the offences referred to in the warrant correspond with offences in the State, and in particular the offence of driving without a license corresponds with the offence under s.38(1) of the Road Traffic Act, 1961.

8 In essence the issue which the Court has to determine is whether it is satisfied that the respondent would be exposed to a real risk that his rights pursuant to article 3 of the European Convention on Human Rights (“the ECHR”) or Charter of Fundamental Rights of the European Union (“the Charter”) would not be respected, and specifically that he would be exposed to a real risk of inhuman or degrading treatment. If the Court is so satisfied, then the surrender is prohibited pursuant to s. 37 of the Act of 2003 as it would be incompatible with the State's obligations under the ECHR and/or the Constitution. Article 3 of the ECHR provides:-

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 4 of the Charter is in similar terms.

9 In addition to the warrant, the Court requested and was furnished with additional information by Romania dated 22nd June, 2017 and 16th March, 2020. The additional information dated 16th March 2020 dealt with the conditions in the particular prisons where it was stated the respondent was likely to be incarcerated.

10 The issuing judicial authority in Romania furnished a report to the Court dated 16th March, 2020. The more salient contents of the report were as follows:-

(a) If surrendered, the respondent would initially be placed at Rahovan penitentiary to quarantine for 21 days [no issue was taken in respect of the conditions at Rahovan];

(b) The respondent would most likely serve the initial stage of imprisonment in a semi-open regime, possibly Focsani penitentiary given the respondent's domicile;

(c) All rooms in Focsani are provided with one or two windows depending on the size of the room as well as a window at the sanitary group. The windows of the detention rooms are over 1.5m each and allow natural light and room ventilation. All rooms are equipped with tableware, TV stand, shelves for storing dishes and personal food. Each detainee has an individual bed and bedding. Cleaning/disinfection was carried out regularly. The detention rooms are provided with a room for sanitation (water, sink, toilet, shower) that allows each person to carry out their physiological needs whenever needed in conditions of privacy. The rooms were equipped with a regulated heating system.

(d) The main characteristics of the semi-open detention regime were that prisoners have daily access to courtyards, clubs, sports field, gymnasium, church, classrooms and other spaces for exercising their rights, including the possibility of walking unaccompanied in areas inside the detention centre on routes established by the administration; they also have the possibility of organising their free time available under supervision and in compliance with the programme established by the administration. The doors of the rooms are open throughout the day. There are specially arranged places for smoking. There are telephones for the use of prisoners being allowed up to 10 telephone calls per day with a maximum cumulative duration of 60 minutes; at electronic documentation and information points prisoners can check their prison situation (number of credits, education activities attended, legal status etc.). Prisoners can perform work and carry out educational, cultural, therapeutic, psychological counselling and social assistance, moral-religious activities, school or vocational training outside the penitentiary under supervision. Prisoners can receive five visits per month with a maximum duration of two hours. Prisoners have the right to purchase from the commercial points of the penitentiary, within the limit of ¾ of the value of the minimum gross salary, food, fruits and vegetables, mineral water, soft drinks, cigarettes and other goods. Prisoners might be required to work taking into account their qualification skills and abilities, health status and safety measures inside or outside the penitentiary. The work performed by prisoners is aimed at maintaining and increasing their ability to earn their livelihood after release and earn some income. The working time was eight hours per day and not more than 40 hours per week, with the exceptions provided by labour law. Prisoners serving semi-open sentences have the opportunity to spend their free time outside the detention room throughout the day and are only introduced to the rooms for lunch and half an hour before the evening call is made;

(e) After the execution of one-fifth of the sentence, the convicted person will be reexamined in order to change the regime of execution of the sentence depending mainly on the behaviour adopted by the prisoner during detention. The respondent could then be moved to an open regime where he would most likely remain at Focsani penitentiary.

(f) In the open regime, the doors of the rooms are...