Minister for Justice and Equality v Zarnescu

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Binchy
• Judgment Date: 13 January 2020
• Neutral Citation: [2020] IEHC 6
• Docket Number: [2019 No. 204 EXT]
• Date: 13 January 2020

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

MARIUS BOGDAN ZARNESCU

RESPONDENT

[2020] IEHC 6

Binchy J.

[2019 No. 204 EXT]

THE HIGH COURT

Surrender – European arrest warrant – European Arrest Warrant Act 2003 s. 45 – Applicant seeking an order for the surrender of the respondent to Romania pursuant to a European arrest warrant – Whether the respondent’s surrender should be refused on the ground that it is prohibited by s. 45 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Zarnescu, to Romania pursuant to a European Arrest Warrant dated 23rd January, 2018 (the EAW). The EAW was issued by a judge of the Court of Onesti, as issuing judicial authority (IJA). On behalf of the respondent it was submitted that his surrender should be refused on the ground that it is prohibited by s. 45 of the European Arrest Warrant Act 2003.

Held by Binchy J that the Court is obliged to refuse the application if the respondent did not appear in person at the proceedings resulting in the detention order, unless the matters required by paras. D. 2, 3 and 4 of the EAW are indicated. While some of those paragraphs were indicated, i.e. ticked, Binchy J held that it was clear (and not disputed) that they were ticked in error and the only outstanding matter upon which the applicant could rely was that referred to in para. D.3.1b of the EAW. The Court could not in this case rely on the ticking of this box in the EAW, and must instead be satisfied that the requirements of para. D.3.1b of the form of warrant had been met, i.e. that it has been unequivocally established that the respondent was aware of the scheduled trial, and that he was informed that a decision might be handed down if he did not appear at the trial. Binchy J considered that these requirements had not been met.

Binchy J held that, all of that being the case, and since the respondent did not appear at the trial resulting in the sentence imposed on him, this application must be refused.

Application refused.

JUDGMENT of Mr. Justice Binchy delivered on the 13th day of January, 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 23rd January, 2018 (“the EAW”). The EAW was issued by a judge of the Court of Onesti, as issuing judicial authority ( “IJA”).

2 The EAW was endorsed by the High Court on 20th June, 2019. The respondent was arrested and brought before the Court on 17th July, 2019. The application first opened before the Court on 16th October, 2019, and was then adjourned until 6th November, 2019, following upon a direction by this Court, pursuant to s. 20 of the European Arrest Warrant Act 2003 (as amended) (hereinafter “the Act of 2003”). On 6th November, 2019, the matter was further adjourned for the provision of yet further information, to 11th December, 2019, when the hearing concluded.

3 At the opening of the application, I was satisfied that the person before the Court is the person in respect of whom the EAW is issued, and in any case this was not denied by the respondent.

4 I was further satisfied that none of the matters referred to in ss. 21 A, 22, 23 and 24 of the Act of 2003 arise, and that the surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.

5 At para. B of the EAW, it is stated that the decision on which it is based is a sentence of the Onesti Court of Law of 19th April, 2017, which is then stated to be “final and enforceable” following a decision of the Bacau Court of Appeal on 22nd November, 2017.

6 At para. E of the EAW, it is stated that the warrant relates to two offences. The first is the offence of driving a vehicle without a driving licence, which carries a maximum penalty of up to three years’ imprisonment or a fine. Accordingly, minimum gravity is established in relation to that offence.

7 The second offence is that of causing bodily injury, which carries a maximum penalty of up to five years’ imprisonment. Minimum gravity is therefore established in relation to that offence also.

8 At para. E of the EAW it is stated that the respondent was first convicted of the offence of driving without a driving licence at the Onesti Court of Law on 19th April, 2017, and that this was affirmed by the Bacau Court of Appeal on 22nd November, 2017. It is stated that he was sentenced to a term of imprisonment of eight months in respect of the offence of driving without a licence, in the village of Curita. It is also stated that at the time of the commission of this offence his driving licence was suspended, since 28th September, 2015.

9 It is stated that at the same time, the court ordered the revocation of the suspension of a conditional sentence of imprisonment of one year imposed by the Onesti Court of Law in respect the offence of causing bodily injury (which I shall hereafter refer to as “the earlier offence”) , and ordered that this sentence of one years’ imprisonment was to be served together with the eight-month sentence imposed in respect of driving without a licence. The earlier sentence had been handed down by the Onesti Court on 4th December, 2012, and was subsequently affirmed by the Bacau Court of Appeal in 2013, although the exact date is not provided. It is stated that that suspension was conditional for a period of three years. As stated above, the EAW states that this sentence related to the offence of “bodily injury”, and in this regard it is stated that on 6th June, 2011, the respondent hit another party causing her bodily injuries. The suspension of the sentence was revoked because the respondent was convicted of the offence of driving without a licence within the three year period.

10 At this juncture I should state that no issue was raised as to correspondence in this jurisdiction with the offences with which the EAW is concerned, and it is clear that the acts of the respondent as described in the EAW (in relation to either offence) would correspond to offences in this jurisdiction.

11 At para. D of the EAW, it is stated that the respondent did not appear in person at the trial resulting the decision. Paras. D.3.1b and 3.2 are then ticked, so that the EAW states that the respondent, while not summonsed in person, was by other means informed of the scheduled date and place of trial, and further that he had given a mandate to a “legal counsellor” to defend him at the trial and was indeed defended by that counsellor at the trial.

12 Para. D.3.4 of the EAW is also ticked, and states that the respondent will be personally served with the decision upon his surrender, and will be informed of his right to a retrial or appeal affording him the opportunity to overturn the convictions giving rise to the EAW.

13 At para. D.4 of the EAW it is stated that the respondent did not appear at any of the hearings of first instance, or at the appeal. The EAW states that he was represented by a chosen defender before the court of first instance. He also filed an affidavit by which he admitted the offence. This could only relate to the offence of driving without a licence. It is then stated that even if he did not receive communication of the conviction (at first instance) he filed an appeal through his chosen legal representative.

14 Further information was sought by the applicant (prior to the amendment of s. 20 of the Act of 2003) by letter of 22nd May, 2019. Four questions were asked:

1. Did the respondent instruct the lawyer who represented him in the appeal, and how is it established that he personally gave instructions to that lawyer to appear in court on his behalf?

2. The IJA was asked to identify the number of days that the respondent would have to request a retrial or appeal as this was not stated in the EAW.

3. The IJA was requested to provide details of the circumstances of the commission of the second offence (the earlier offence).

4. In relation to the earlier offence, the IJA was requested to clarify if the respondent was present at the trial leading to that sentence, and also whether or not the respondent was aware that the revocation of the suspension of that sentence would be considered during the course of the trial for the first offence (by which it is meant the first offence described in the EAW, which is actually the second offence in time, i.e. the offence of driving without a licence).

15 In its reply, the IJA stated that the respondent's appeal was filed by the same “chosen” lawyer. However, it goes on to say that the respondent himself wrote separately by letter dated 11th September, 2017, requesting an adjournment of the appeal hearing, which was scheduled for 12th September, 2017, in order to enable him to instruct a lawyer, and also owing to the fact that he could not be present in court on the date of which the appeal was scheduled. The IJA provided a copy of this letter (which actually bears two different dates, 9th and 11th September, 2017, but nothing turns on this, and for the purpose of this decision I will henceforth refer to it as the letter of 9th September, 2017). In the letter, the respondent provides his address in this country and also states that he has a domicile in Curita Village, Casin Commune, Onesti Town, in Romania. He concludes this letter by stating that he undertakes to present documents to the court on the next trial date.

16 The IJA then states that a new trial date was fixed to enable the respondent to hire a lawyer, but no documents were filed to indicate that he had done so. Accordingly, the appeal took place in the absence of the defendant, and without a lawyer. In a response to a second request for information dated 17th October, 2019, the IJA stated that, following the request for an adjournment received from the respondent, the...