Minister for Justice and Equality v Dicu

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 16 November 2020
• Neutral Citation: [2020] IEHC 607
• Court: High Court
• Docket Number: Record No. [2019/267 EXT]
• Date: 16 November 2020

BETWEEN/

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MARIAN DICU

RESPONDENT

[2020] IEHC 607

Binchy

Record No. [2019/267 EXT]

THE HIGH COURT

JUDGMENT of Mr. Justice Binchy delivered on the 16th day of November 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 14th June 2018 (“the EAW”). The EAW was endorsed by the High Court on 29th July 2019 and the respondent was arrested and brought before this Court on 28th November 2019.

2 The EAW was issued by the Buftea Court – Criminal Division by a named judge. At the hearing of the application, I was satisfied that the person before the Court is the person in respect of whom the EAW was issued, and no issue was raised in this regard in opposition to this application. I was further satisfied that the surrender of the respondent is not prohibited by reason of any of the matters referred to in ss. 21A, 22, 23 or 24 of the European Arrest Warrant Act 2003 (the “Act of 2003”), and the respondent raised no objections in relation to the matters to which these sections relate.

3 At para. (b) of the EAW it is stated that the warrant is based upon a judgment in a criminal case dated 15th February 2018, specifically an order of the Buftea Court – Criminal Division whereby the respondent was sentenced as follows:

(1) Four months' imprisonment for the commission of the offence “of driving on the public roads of a vehicle for which the law requires to hold a driving licence, by a person whose right to drive has been suspended.” This is stated to be “based on” Article 335 of the Criminal Code, coupled with Article 396 of the Criminal Code.

(2) Eight months' imprisonment for the offence of “denial or avoiding the biological samples collection”, “based on” Article 337 of the Criminal Code, coupled with Article 396 of the same and;

(3) Five months' sentence of imprisonment for the offence of taking away or destroying evidence or documents, also “based on” Article 275 of the Criminal Code, coupled with Article 396 of the same.

4 Further on within para. (b) of the EAW, it is stated under the heading “with appeal” and “final through the judicial decision dated 29th May 2018 rendered by the Court of Appeal Bucharest” that the Court of Appeal “abolishes partially” the appealed judgment, and then goes on to state that the respondent is sentenced to one year of imprisonment in respect of one of the offences, the offence that is contrary to Article 335 (which appears to be the offence of driving without a licence, while he was suspended from driving). In relation to the offence that is contrary to Article 337 of the Criminal Code, he is sentenced to a period of one year and six months' imprisonment. Following considerably more narrative it is explained that the sentences are merged and a discount is applied, so that overall the respondent was sentenced to two years of imprisonment. At para. (c) of the EAW particulars of the custodial sentence that may be imposed in relation to the offences to which the EAW relates are provided. These range between three years and five years. In any case, minimum gravity is established by reference to the sentence actually imposed. It is also stated that the remaining sentence to be served is two years, i.e. the full sentence.

5 At para. (d) of the EAW it is stated that the respondent appeared at the trial resulting in the decision.

6 At para. (e) of the EAW, particulars of the offences are provided. It is stated that the EAW relates to three offences. The following particulars are provided:

(1) “On 30th December 2015 the convict Dicu Marian has driven on the public roads, National Road 7, the town of Chitila, the car with Dacia Logan trademark with licence plate B19ACX although his right to drive has been suspended on 3rd December 2015 for a period of thirty days”;

(2) “At the same date, as driver on the public roads of the car with Dacia Logan trademark with licence plate B19ACX the convict has refused to take him biological samples needed to establish his blood alcohol level”;

(3) “On 30th December 2015 the convict has taken away and destroyed documents drawn up by the police bodies in order to prevent the truth finding in a judicial procedure.”

7 A request for additional information was sent to the Issuing Judicial Authority (“IJA”) on 29th November 2019. The IJA was asked to clarify what was meant by the statement that “the convict refused to take him biological samples needed to establish his blood alcohol levels” and in particular was asked to clarify whether he refused to provide breath, blood or urine samples that could establish his blood alcohol level. Secondly, the IJA was asked to clarify a description of the documents or evidence allegedly interfered with or removed by the respondent.

8 The IJA responded to the request for additional information by letter dated 2nd December 2019. In its reply, it stated (and I paraphrase for convenience) that the respondent had driven his car in the town of Chitila while suspended from driving. It states that since he “emanated” halitosis, he was requested to provide a sample by way of breathalyser, and that he was accompanied to the hospital for the purpose of providing samples. However, he refused to provide samples and while at the hospital he tore from the hands of police representatives documents that had been drawn up when he was stopped, specifically the minutes regarding his detection in the traffic, and the declaration of a witness.

9 A copy of a hospital document was also attached to this letter at the end of which it is stated that:

“the patient refuses to take blood samples motivating that he has allergy against the [illegible] and he is afraid of the needle and he refuses to sign. In the presence of the police representatives, the patient affirms that he had drunk alcohol.”

Respondent's Objections

10 Points of objection were filed on behalf of the respondent on 13th December 2019. Eight objections were made as follows:

(1) The EAW was not issued by a judicial authority. This objection was not pursued.

(2) While at para. (d) of the EAW it is stated that the respondent appeared in person at the trial resulting in the decision, it is unclear if this relates to the hearing of first instance or the hearing of the appeal. Accordingly, surrender should be refused pursuant to s. 45 of the Act of 2003.

(3) At para. (e) of the EAW, where particulars of the nature and legal classification of the offences and the applicable statutory provisions are required to be inserted, it is simply stated “the old code of criminal procedure.” This is not in compliance with s. 11(1A)(d) of the Act of 2003.

(4) There is uncertainty as to whether the EAW is based upon the judgment of the Buftea Court of 15th February 2018, or the Court of Appeal of Bucharest of 29th May 2018. This is contrary to s. 11(1) and/or s. 11(1A)(e) of the Act of 2003.

(5) There is a lack of correspondence between the offences as described with any offences in this jurisdiction.

(6) There are systemic or generalised deficiencies in the requesting state in relation to the detention of individuals surrendered to that country, so far as concerns the deduction of the period of detention served in the executing member state. Accordingly, surrender would be contrary to s. 37 of the Act of 2003.

(7) Surrender would result in a disproportionate interference with the rights of the respondent under Article 8 of the European Convention on Human Rights (“the Convention”) and Articles 40.4.1, 40.3.1 and 41.1 of the Constitution as well as Articles 6, 7 and 24 of the Charter of Fundamental Rights of the European Union (the “Charter”) and as such is prohibited by s. 37 of the Act of 2003.

(8) Surrender would result in a violation of the respondent's rights under Articles 2 and 3 of the Convention and/or his right to bodily integrity pursuant to Article 40.3.1 of the Constitution and Articles 2 and 4 of the Charter, as a result of which surrender is prohibited by s. 37 of the Act of 2003, all arising due to the conditions of detention in the issuing state.

11 The respondent swore an affidavit in opposition to this application dated 16th December 2019. He avers that he has spent time in custody on foot of the EAW, and he further avers that having regard to published criticism of the issuing state, he is concerned that the issuing state will not afford him the credit to which he is entitled for time spent in custody. This concerns objection no. 6 above. In this regard, he exhibits a report from the Defence of Human Rights in Romania – the Helsinki Committee (Apador-ch) (the “Apador report”) entitled Influentation of the European Arrest Warrant: Dysfunctionalities and Bureaucracy - a case study on Romania of May 2018. In this report, it is stated that:

“One of the most problematic aspects identified during this research is the fact that the persons who are transferred to Romania on the basis of a European arrest warrant do not have any documents on them which would attest the period they spent arrested. The penitentiary casefiles also do not contain this information. Most of the convicted persons interviewed did not know that they had the right to have the period spent arrested in the executing state deducted from the sentence or what the procedure was.”

12 The respondent avers as to the criticism of conditions of detention in the issuing state, and exhibits several documents which reflect that criticism. This includes the Apador report mentioned above, as well as the most recent report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”). Other documents are also exhibited, and I will address these when addressing the submissions made on behalf of the respondent at the hearing of the application.

Further Information

13 In...