Minister for Justice and Equality v Rogic

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Paul Burns
• Judgment Date: 14 December 2020
• Neutral Citation: [2020] IEHC 690
• Docket Number: RECORD NUMBER 2019/42 EXT

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ZORKA ROGIĆ

RESPONDENT

[2020] IEHC 690

Paul Burns

RECORD NUMBER 2019/42 EXT

THE HIGH COURT

European arrest warrant – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to the Republic of Croatia pursuant to a European arrest warrant – Whether surrender was precluded as correspondence could not be established between the offences in the European arrest warrant and offences under the law of the State

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Ms Rogić, to the Republic of Croatia pursuant to a European arrest warrant dated 14th November, 2017 (the EAW) issued by Judge Čargonja, of the Municipal Court in Rijeka, Croatia, as the issuing judicial authority. The EAW sought the surrender of the respondent to face prosecution in respect of two offences of unlawful possession of narcotics and unlawful possession of ammunition, respectively. The following points of objection were delivered: (i) surrender is precluded under s. 38 of the European Arrest Warrant Act, 2003, as amended, as correspondence cannot be established between the offences in the EAW and offences under the law of the State; (ii) surrender is precluded under ss. 10 and 21A of the 2003 Act as it was unclear that a decision had been made in the issuing state to charge and try the respondent; and (iii) surrender is precluded as the particulars set out in the EAW were insufficient to meet the requirements of s. 11 of the 2003 Act. Subsequently, the respondent delivered a supplemental notice of objection dated 9th March, 2020 to the effect that: (iv) surrender is precluded under s. 37 of the 2003 Act as it would be incompatible with the State’s obligations under the European Convention on Human Rights (the ECHR), in particular (a) due to the conditions in which the respondent is likely to be detained in the issuing state and/or that she would be exposed to threats or violence, and (b) as state actors had influenced the investigation and/or the prosecution of the respondent.

Held by Burns J that, as regards offence 1 in the EAW, he was satisfied that correspondence existed with offences under the law of the State, viz. offences contrary to ss. 3 and 15 of the Misuse of Drugs Act 1977, as amended. As regards offence 2 in the EAW, Burns J held that correspondence had been established with the offence under s. 2 of the Firearms Act 1925, as amended, in the State. Burns J was satisfied that a decision had been made in the issuing state to charge and try the respondent with the offences set out in the EAW and that the respondent had failed to adduce any cogent evidence to displace the presumption contained in s. 21A(2) of the 2003 Act; the EAW stated on its face that surrender was sought for the purpose of conducting a criminal prosecution or executing a custodial sentence or detention order. Burns J was satisfied that taking the EAW and additional information received as a whole, the issuing state had provided sufficient details so as to satisfy the requirements of s. 11 of the 2003 Act; in particular, sufficient details had been provided as to the offences alleged against the respondent, including the date and place of same and the degree of involvement of the respondent. Burns J found that the respondent had failed to establish by way of cogent evidence a real risk that, if surrendered, she would be subjected to inhuman or degrading treatment as to constitute a breach of article 3 ECHR, or article 4 of the European Union Charter of Fundamental Rights, that would justify a refusal of surrender.

Burns J held that the Court would make an order pursuant to s. 16(1) of the 2003 Act for the surrender of the respondent to Croatia.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 14th day of December, 2020

1 By this application the applicant seeks an order for the surrender of the respondent to the Republic of Croatia (“Croatia”) pursuant to a European arrest warrant dated 14th November, 2017 (“the EAW”) issued by Judge Tatjana Čargonja, of the Municipal Court in Rijeka, Croatia, as the issuing judicial authority. The EAW seeks the surrender of the respondent to face prosecution in respect of two offences of unlawful possession of narcotics and unlawful possession of ammunition, respectively.

2 The EAW was endorsed on 11th February, 2019 and the respondent was arrested and brought before this Court on 11th April, 2019. The respondent was originally granted bail but failed to appear at the hearing date for the surrender application and remained at large until arrested and brought before the High Court again on 30th January, 2020. She was remanded in custody and then re-admitted to bail on 31st July, 2020 due to the length of time spent in custody as a result of the protracted nature of the disputed proceedings.

3 I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. This was not put in issue by the respondent.

4 I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), are met. The offences in respect of which surrender is sought carry a maximum penalty of 12 years' imprisonment in respect of the narcotics offence and 3 years' imprisonment in respect of the ammunition offence.

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 An issue was taken in respect of correspondence between the offences referred to in the EAW and offences under Irish law.

7 Points of objection were delivered which can be summarised as follows:-

(i) surrender is precluded under s. 38 of the Act of 2003 as correspondence cannot be established between the offences in the EAW and offences under the law of the State;

(ii) surrender is precluded under ss. 10 and 21A of the Act of 2003 as it was unclear that a decision had been made in the issuing state to charge and try the respondent; and

(iii) surrender is precluded as the particulars set out in the EAW were insufficient to meet the requirements of s. 11 of the Act of 2003.

8 Subsequently, the respondent delivered a supplemental notice of objection dated 9th March, 2020 to the effect that:-

(iv) surrender is precluded under s. 37 of the Act of 2003 as it would be incompatible with the State's obligations under the European Convention on Human Rights (“the ECHR”), in particular:-

(a) due to the conditions in which the respondent is likely to be detained in the issuing state and/or that she would be exposed to threats or violence; and

(b) as state actors had influenced the investigation and/or the prosecution of the respondent.

9 Prior to the arrest of the respondent, additional information was requested from the issuing judicial authority and replied to by letter dated 14th November, 2018, setting out the maximum penalties for each of the offences, giving the location for the offences and explaining that the narcotics offence consisted of two separate acts, essentially of possessing and selling. By letter dated 5th February, 2019, the issuing state confirmed that the respondent was not registered in respect of any weapon.

10 By further letter dated 8th March, 2019, the issuing judicial authority confirmed that on the relevant date, the police had seized from the respondent one 7.65mm bullet found in the search of her bedroom, but stated that it had no detailed description of the ammunition or its characteristics.

11 The respondent swore an affidavit dated 29th April, 2019 for the purposes of a bail application.

12 By letter dated 20th February, 2020, the solicitor for the respondent queried whether the EAW had been issued by a competent court in Croatia according to Croatian law. Following a request for additional information in this regard, the issuing judicial authority, by letters dated 28th February, 2020 and 13th March, 2020, confirmed that the issuing court was competent to issue the EAW.

Issuing Judicial Authority

13 I am satisfied that the EAW was issued by a competent issuing judicial authority. This has been confirmed by the issuing state and was not seriously challenged at the hearing of this matter.

Correspondence

14 Section 38 of the Act of 2003 provides as follows:-

“(1) Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in respect of an offence unless—

(a) the offence corresponds to an offence under the law of the State, and—

(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or

(ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment,

or

(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.

(2) The surrender of a person to an issuing state under this Act shall not be refused on the ground that, in relation to a revenue offence—

(a) no tax or duty of the kind to which the offence relates is imposed in the State,

or

(b) the rules relating to taxes, duties, customs or exchange control that apply in the issuing state differ in nature from the rules that apply in the State to taxes, duties, customs or exchange control.

(3) In this section ‘revenue offence’ means, in relation to an issuing state, an offence in connection with taxes, duties,...