Minister for Justice and Equality v Ioan Anton
| Jurisdiction | Ireland |
| Judge | Mr. Justice Paul Burns |
| Judgment Date | 09 May 2022 |
| Neutral Citation | [2022] IEHC 293 |
| Court | High Court |
| Docket Number | [2020 No. 216 EXT.] |
[2022] IEHC 293
[2020 No. 216 EXT.]
THE HIGH COURT
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 the respondent's fundamental rights would be protected if surrendered
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Anton, to Romania pursuant to a European arrest warrant dated 9th June, 2020 (the EAW). The EAW was issued by Judge Gargale of the Tribunal of Bucharest – Criminal Law Division 1, as the issuing judicial authority. The EAW sought the surrender of the respondent for prosecution in respect of five serious offences alleged to be related to a criminal organisation. The respondent contested his surrender on the basis that: (1) the offences in question were not committed within the territory of the issuing state, contrary to s. 44 of the European Arrest Warrant Act 2003; and (2) if surrendered, the respondent's fundamental rights would not be protected, as required by s. 37 of the 2003 Act.
Held by Burns J that, in line with the reasoning of the Supreme Court in Minister for Justice and Equality v Pal [2022] IESC 12, he would dismiss the respondent’s objections based on s. 44 of the 2003 Act as regards the offences of creation of an organised crime group and incitement to aggravated murder. Also, in line with the reasoning in Pal, Burns J refused surrender in respect of the other alleged offences. Burns J was not satisfied that there were substantial grounds for believing that there was a real risk that, if surrendered, the respondent would be subjected to inhuman or degrading treatment in breach of Article 3 of the European Convention on Human Rights (the ECHR) or Article 4 of the Charter of Fundamental Rights of the European Union. Burns J was satisfied that the presumption contained in s. 4A of the 2003 Act had not been rebutted. Burns J determined that surrender of the respondent would not be incompatible with the State’s obligations under the ECHR, the protocols thereto, nor would it contravene any provision of the Constitution. Burns J dismissed the respondent’s objection to surrender based upon likely conditions of detention if surrendered.
Burns J made an order pursuant to s. 16(1) of the 2003 Act for the surrender of the respondent to Romania in respect of the offences of creation of an organised crime group and incitement to aggravated murder.
Application granted.
JUDGMENT of Mr. Justice Paul Burns delivered on the 9th day of May, 2022
In this application, the applicant seeks an order for the surrender of the respondent to Romania pursuant to a European arrest warrant dated 9th June, 2020 (“the EAW”). The EAW was issued by Judge Anastasia Gargale of the Tribunal of Bucharest – Criminal Law Division 1, as the issuing judicial authority. The EAW seeks the surrender of the respondent for prosecution in respect of 5 serious offences alleged to be related to a criminal organisation.
The EAW was endorsed by the High Court on 22nd September, 2020 and the respondent was arrested and brought before the High Court on 28th September, 2020.
I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in this respect.
I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), have been met. As set out at part C of the EAW, the offences in respect of which surrender is sought and the respective maximum penalties are as follows:-
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(i) creation of an organised crime group – 3 to 10 years' imprisonment;
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(ii) blackmail – 2 to 7 years' imprisonment;
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(iii) incitement to aggravated murder – 15 to 25 years' or life imprisonment;
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(iv) incitement to attempted aggravated murder – 15 to 25 years' or life imprisonment; and
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(v) incitement to aggravated robbery – 3 to 10 years' imprisonment.
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.
The circumstances in which the alleged offences were committed, including the respondent's degree of participation in same, are set out at part E of the EAW. Also at part E of the EAW, the issuing authority has certified that offences (i), (iii) and (iv) as listed above each carry a maximum penalty of at least 3 years' detention and has ticked the relevant boxes for “participation in a criminal organisation” and “murder, grievous bodily injury”. This indicates that 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 to the offences so that by virtue of s. 38(1)(b) of the Act of 2003, it is not necessary for the applicant to establish correspondence between those offences and any offence under the law of this State. I am satisfied that there is no reason to believe that the said certification is in error, and so there is no need for the applicant to establish correspondence. No issue was taken in respect of this certification and in any event, I am satisfied that, if necessary, correspondence could be established. As regards the other two offences set out at (ii) and (v), I am satisfied that correspondence exists between those offences and the following offences respectively, under the law of this State: demanding money with menaces contrary to s. 17(1) of the Criminal Justice (Public Order) Act, 1994 and robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and/or incitement to commit those crimes in respect of which he may be tried and punished as a principal offender. I am also satisfied that the acts alleged to constitute the offences alleged against the respondent correspond with the offences in this State of conspiracy to commit a serious offence contrary to s. 71 of the Criminal Justice Act, 2006 (“the Act of 2006”). Further, s. 7(1) of the Criminal Law Act, 1997 provides:-
“7.—(1) Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender.”
It is alleged that the respondent organised and incited others to commit the murder in question. In such circumstances, he aided, abetted, counselled or procured the others to commit murder and in accordance with s. 7(1) of the Criminal Law Act, 1997, he is liable to be tried for and convicted of murder. No issue was taken on behalf of the respondent as regards correspondence.
As some of the offences referred to in the EAW carry a potential penalty of life imprisonment, it is necessary for the issuing judicial authority to complete part H of the EAW, and this is not completed in the EAW. By additional information dated 2nd October, 2020, the necessary details in that regard have been furnished. No issue was taken on behalf of the respondent as regards these details.
The respondent objected to surrender on the following grounds:-
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(a) surrender is precluded by s. 44 of the Act of 2003; and
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(b) surrender is precluded by s. 37 of the Act of 2003.
Section 44 of the Act of 2003 directly incorporates Article 4.7.(b) of the Framework Decision and provides as follows:-
“44.–A person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect of him or her was committed or is alleged to have been committed in a place other than the issuing state and the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State.”
In essence, what is alleged against the respondent is that he took a leading part in an organised crime group in order to commit murder and other offences, which were in fact committed. The offences are alleged to have been committed in Ireland, outside the territory of the issuing state, and thus the first part of the test set out in s. 44 of the Act of 2003 is satisfied. In relation to the second part of the test, the Court must consider whether “ the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State”.
In Minister for Justice and Equality v. Pal [2020] IEHC 143, one of the respondent's alleged co-actors in the alleged offences was the subject of an application for surrender pursuant to a European arrest warrant issued by Romania. McDermott J. was satisfied that the alleged offence of creating an organised criminal group alleged against the co-actor corresponded with an offence under Irish law contrary to s. 71 of the Act of 2006.
By virtue of s. 71(1) of the Act of 2006, it is an offence under Irish law for a person to conspire, whether in the State or elsewhere, to do an act in the State that constitutes a serious offence in the State, or to do an act outside the State that constitutes a serious offence under the law of that place and which, if done in the State, would constitute a serious offence in the State. Section 71(2) of the Act of 2006 provides:-
“71. – (2) Subsection (1) applies to a conspiracy committed outside the State if–
(a) the offence, the subject of the conspiracy, was committed, or was intended to be committed, in the State or against a citizen of Ireland … or
(d) the conspiracy is committed by an Irish citizen or a person ordinarily resident in the State.”
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