Minister for Justice and Equality v Angel

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Paul Burns
Judgment Date15 December 2020
Neutral Citation[2020] IEHC 699
Date15 December 2020
Docket Number[2020 No. 024 EXT.]

[2020] IEHC 699

THE HIGH COURT

Paul Burns

[2020 No. 024 EXT.]

BETWEEN
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
PITULAN ANGEL
RESPONDENT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 37 – Applicant seeking an order for the surrender of the respondent to Romania pursuant to a European arrest warrant – Whether surrender was precluded by reason of s. 37 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 Angel, to Romania pursuant to a European arrest warrant dated 7th September, 2018 (the EAW). The EAW was issued by Judge Gabriela of the Local Law Court, Jibou, as the issuing judicial authority. The EAW sought the surrender of the respondent to serve a sentence of 2 years and 6 months’ imprisonment, imposed upon him on 18th July, 2018, in respect of one offence of driving a motor vehicle without a licence. The respondent delivered the following points of objection dated 20th May, 2020: (a) the EAW does not contain sufficient detail as required by s. 11 of the European Arrest Warrant Act 2003, as amended; (b) surrender is prohibited by virtue of s. 38 of the 2003 Act as there is no correspondence between the offence alleged in the EAW and an offence under Irish law; (c) the application constitutes an abuse of process and/or is otherwise estopped or precluded by virtue of the fact that the same EAW has already been the subject of an application for surrender before the courts of the United Kingdom of Great Britain and Northern Ireland and surrender was refused; (d) surrender is prohibited by virtue of s. 37 of the 2003 Act because it would be incompatible with the State’s obligations under the European Convention on Human Rights (the ECHR) and/or the Constitution (i) as it would violate the respondent’s right to a family life under article 8 ECHR, and (ii) as it would violate the respondent’s right not to be subjected to inhuman or degrading treatment or punishment under article 3 ECHR, due to prison conditions in Romania; and (e) surrender is prohibited by virtue of s. 45 of the 2003 Act, as the respondent was tried and convicted in absentia in circumstances where the requirements of that section have not been met.

Held by Burns J that, in light of the decision of the European Court of Human Rights in Rasinski v Poland (42969/18), [2020] ECHR 363 delivered on 28th May, 2020, it appeared that the likely conditions of the respondent’s detention would be in breach of his right not to be subjected to inhuman or degrading treatment under article 3 ECHR and article 4 of the Charter. Burns J noted that the parties were in agreement that s. 37(1)(c)(iii) of the 2003 Act provides for an absolute prohibition on surrender if there are reasonable grounds for believing that the person to be surrendered would be tortured or subjected to other inhuman or degrading treatment. In such circumstances, it appeared to Burns J that the respondent’s surrender would be in breach of the State’s obligations under article 3 ECHR and was thus precluded by s. 37 of the 2003 Act.

Burns J held that the Court would make an order refusing the surrender of the respondent to Romania.

Application refused.

JUDGMENT of Mr. Justice Paul Burns delivered on the 15th day of December, 2020
1

In this application, the applicant seeks an order for the surrender of the respondent to Romania pursuant to a European arrest warrant dated 7th September, 2018 (“the EAW”). The EAW was issued by Judge Matyus Gabriela of the Local Law Court, Jibou, as the issuing judicial authority. The EAW seeks the surrender of the respondent to serve a sentence of 2 years and 6 months' imprisonment, imposed upon him on 18th July, 2018, in respect of one offence of driving a motor vehicle without a licence.

2

The EAW was endorsed by the High Court on 10th February, 2020 and the respondent was arrested and brought before the High Court on 6th May, 2020.

3

I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. No issue was raised in this respect.

4

I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), have been met. The respondent is sought to serve a term of imprisonment of 2 years and 6 months.

5

I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the Act of 2003 arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

6

The respondent delivered points of objection dated 20th May, 2020 which may be summarised as follows:-

(a) the EAW does not contain sufficient detail as required by s. 11 of the Act of 2003;

(b) surrender is prohibited by virtue of s. 38 of the Act of 2003 as there is no correspondence between the offence alleged in the EAW and an offence under Irish law;

(c) the application constitutes an abuse of process and/or is otherwise estopped or precluded by virtue of the fact that the same EAW has already been the subject of an application for surrender before the courts of the United Kingdom of Great Britain and Northern Ireland (“the UK”) and surrender was refused;

(d) surrender is prohibited by virtue of s. 37 of the Act of 2003 because it would be incompatible with the State's obligations under the European Convention on Human Rights (“the ECHR”) and/or the Constitution:-

(i) as it would violate the respondent's right to a family life under article 8 ECHR; and

(ii) as it would violate the respondent's right not to be subjected to inhuman or degrading treatment or punishment under article 3 ECHR, due to prison conditions in Romania; and

(e) surrender is prohibited by virtue of s. 45 of the Act of 2003, as the respondent was tried and convicted in absentia in circumstances where the requirements of that section have not been met.

The EAW and Other Documentation before the Court
7

The EAW is dated 7th September, 2018 and requests the arrest and surrender of the respondent “ in view of executing a custodial sentence”.

8

At part B of the EAW, it is indicated that it is is based on:-

“The warrant for executing an imprisonment sentence no.155/2018 of July, 18th, 2018, issued by the Local Law Court Jibou.”

The enforceable judgment is described as:-

“Criminal sentence no. 132 of May, 30th, 2018 of the Local Law Court Jibou and the Closures for Correction of a Clerical Error of June, 27th, 2018 and July, 18th, 2018 of the Local Law Court Jibou, enforceable on July, 18th, 2018 by non-appeal.”

The reference given is:-

“Criminal case file no. 1135/1752/2016 of the Local Law Court Jibou.”

9

Part C of the EAW indicates that by the criminal sentence no. 132 of 30th May, 2018 (enforceable on 18th July, 2018 by non-appeal), a sentence of 1 year and 2 months' imprisonment was imposed upon the respondent for having committed the offence of driving a vehicle without holding a driving licence. It also indicates that that offence is concurrent with an offence for which the respondent was sentenced to 6 months' imprisonment by criminal sentence no. 66 of 9th March, 2016, case file number 886/224/2015 of the local Law Court Huedin, which in turn was committed during the probation period set by criminal sentence no. 1298 of 5th December, 2013, case file number 8025/211/2013 of the local Law Court Cluj-Napoca, where the respondent was sentenced to 1 year and 2 months' imprisonment. Part C of the EAW indicates that under various Romanian legislative provisions, the three sentences are calculated as a single sentence of 2 years and 6 months' imprisonment.

10

At part D of the EAW, the relevant boxes are ticked to indicate that the respondent did not appear in person at the trial resulting in the decision; that the respondent was summoned in person on 26th March, 2018; was informed of the scheduled date and place of the trial which resulted in the decision and was informed that the decision may be handed down if he did not appear for the trial. Box 3.4 was also ticked to indicate that the respondent was not personally served with the decision, but that he will be personally served with the decision without delay after surrender and when served with the decision, he will be expressly informed of his right to a retrial or appeal, in which he has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and he will be informed of the timeframe within which he has to request a retrial or appeal, which is one month from the day he was informed by means of an official notification that a criminal trial was held against him.

11

At part E of the EAW, it is stated that it relates to one offence which is described as follows:-

“On February, 28th, 2015, around time 22:00, the defendant drove the motor vehicle with registration number HD-08-UPS on DN 1 G, in the village Almaşu, County of Sălaj, without holding a driving license.

The letter no. 71350/April, 27th, 2015 sent by the Prefect's Institution Cluj – SPCRPCÎV reveals the fact that Angel Pitulan is not registered as holder of a driving license.”

12

By letter dated 28th January, 2020, the High Court sought additional information as to whether the sentence of 2 years and 6 months' imprisonment related to more than one offence, and if so what were the other offences and what sentences were imposed in respect of each offence. The letter also requested the issuing judicial authority to complete a table D in respect of each sentence and to provide further detail as to how the respondent was summoned in person in relation to criminal sentence no. 132 of 30th May, 2018. By letter dated 31st January, 2020, the issuing judicial authority confirmed that the sentence of 2 years and 6 months'...

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