Minister for Justice and Equality v Vasile-Alin Jelecutean

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 19 May 2021
• Neutral Citation: [2021] IEHC 375
• Date: 19 May 2021
• Docket Number: [2021 No. 059 EXT.]
• Court: High Court

Between

Minister for Justice and Equality

Applicant

and

Vasile-Alin Jelecutean

Respondent

[2021] IEHC 375

[2021 No. 059 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 21A – Applicant seeking an order for the surrender of the respondent to the Federal Republic of Germany pursuant to a European arrest warrant – Whether surrender was precluded by reason of s. 21A 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 Jelecutean, to the Federal Republic of Germany pursuant to a European arrest warrant dated 13th May, 2020 (the EAW). The EAW was issued by Judge Baptist of the Local Court in Augsburg as the issuing judicial authority. The EAW sought the surrender of the respondent for the purposes of conducting a criminal prosecution against him in respect of alleged trafficking in stolen vehicles. At hearing, counsel for the respondent indicated that he was pursuing three grounds of objection to surrender as follows: (i) surrender was precluded by reason of s. 21A of the European Arrest Warrant Act 2003, as amended; (ii) surrender was precluded by reason of s. 44 of the 2003 Act; and (iii) surrender was precluded as the EAW did not contain sufficient detail as required by s. 11 of the 2003 Act.

Held by Burns J that the presumption provided for at s. 21A(2) of the 2003 Act had not been rebutted and, furthermore, on the documentation before the Court, Burns J was satisfied that a decision had in fact been made to charge and try the respondent with the offences to which the EAW related. Burns J dismissed the respondent’s objection grounded upon s. 21A of the 2003 Act. Burns J held that the respondent had failed to satisfy the first requirement of s. 44 of the 2003 Act and, as the two requirements of the section are conjunctive, the respondent had failed to meet the conditions set out in s. 44 of the 2003 Act. In such circumstances, Burns J dismissed the respondent’s objection to surrender grounded in s. 44 of the 2003 Act. Burns J was satisfied that the description of the circumstances in which the offences were alleged to have been committed, including the degree of participation in the offence by the respondent, was sufficiently set out in part E of the EAW. Burns J was further satisfied that the absence of any further detail did not prejudice the respondent as regards this application or, indeed, any prosecution which he may face in the issuing state. Burns J therefore dismissed the respondent’s objection to surrender grounded on s. 11 of the 2003 Act.

Burns J held that, having dismissed the respondent’s objections to surrender, it followed that the Court would make an order pursuant to s. 16 for the surrender of the respondent to Germany.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 19th day of May, 2021

1 By this application, the applicant seeks an order for the surrender of the respondent to the Federal Republic of Germany (“Germany”) pursuant to a European arrest warrant dated 13th May, 2020 (“the EAW”). The EAW was issued by Judge Michale Baptist of the Local Court in Augsburg as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent for the purposes of conducting a criminal prosecution against him in respect of alleged trafficking in stolen vehicles.

3 The respondent was arrested on 22nd March, 2021 on foot of a Schengen Information System II alert and brought before the High Court on the same day. The EAW was produced to the High Court on 25th March, 2021.

4 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 regard.

5 I am satisfied that none of the matters referred to in ss. 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections. As regards s. 21A of the Act of 2003, this is dealt with later on in this judgment.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. Each of the offences in respect of which surrender of the respondent is sought carries a maximum penalty in excess of 12 months' imprisonment. No issue was taken in respect of minimum gravity.

7 By virtue of s. 38(1)(b) of the Act of 2003, it is not necessary for the applicant to establish correspondence between the offences to which the EAW relates and offences under the law of the State where the offences referred to in the EAW are offences to which article 2.2 of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), applies and carry a maximum penalty in the issuing state of at least three years' imprisonment. In this instance, the issuing judicial authority has certified that the offences referred to in the EAW are offences to which article 2.2 of the Framework Decision applies, that same are punishable by a maximum penalty of at least three years' imprisonment and has indicated the appropriate box for “trafficking in stolen vehicles”. There is no apparent mistake or ambiguity in such certification as would justify this Court looking beyond same. No issue was raised in respect of correspondence.

8 At hearing, counsel for the respondent indicated that he was pursuing three grounds of objection to surrender as follows:-

• (i) surrender is precluded by reason of s. 21A of the Act of 2003;

• (ii) surrender is precluded by reason of s. 44 of the Act of 2003; and

• (iii) surrender is precluded as the EAW does not contain sufficient detail as required by s. 11 of the Act of 2003.

Section 21A of the Act of 2003

9 Section 21A of the Act of 2003 provides:-

• “21A.(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.

• (2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”

10 Counsel on behalf of the respondent referred the Court to a report from a German lawyer, Mr. Wolfgang Bendler, dated 11th April, 2021. Counsel submitted that it was clear from the said report that the proceedings in Germany are still at the investigative stage and that no decision had been made to charge and try the respondent with the offences referred to in the EAW. That the proceedings in Germany are still at a pre-trial stage is confirmed by additional information received from the issuing judicial authority, dated 6th April, 2021, which states, inter alia, “the EAW is for pre-trial stage, i.e. a trial did not take place until now”.

11 The report from Mr. Bendler states:-

“In both the national and the European Arrest Warrant, the investigating judge assumed that our client was strongly suspected of the alleged offences. This is based on the requests of the public prosecutor's office. It must be assumed that the public prosecutor's office will continue to hold this view. Therefore, in case Mr. Jelecutean will be transferred, the prosecution will subsequently file indictment. The competent Court will then decide again on the suspicion of the crime and the grounds for detention in the context of the examination of the opening of the main...