Minister for Justice and Another v Mihalcea

• Jurisdiction: Ireland
• Judge: Ms. Justice Caroline Biggs
• Judgment Date: 06 March 2023
• Neutral Citation: [2023] IEHC 249
• Docket Number: [2021 No. 355 EXT.]
• Court: High Court

Between

Minister for Justice and Equality

Applicant

and

Adrian Mihalcea

Respondent

[2023] IEHC 249

[2021 No. 355 EXT.]

THE HIGH COURT

Citizenship and nationality- European Arrest Warrant- Breach of individual rights and freedoms - Crimes of aggravated theft - Examination of conditions of imprisonment

Facts: On 6th March 2023, the applicant, Minister for Justice and Equality sought an order for the surrender of the respondent, Mr Mihaclea, to Romania pursuant to a European Arrest Warrant dated 2nd December 2013 issued by the Judge of the Oneşti Court of Law. On 13th December 2007, Oneşti Court of Law imposed a suspended sentence of 2 years and 4 months in respect of the offence of Aggravated Theft. On the 3rd of June 2013, in relation to criminal sentence no. 332, Oneşti Court of Law imposed a sentence of 8 months in respect of an offence of Aggravated Theft and revoked the conditional suspension of the 2 years and 4 months’ sentence. On 17th October, in the Bacău Court of Appeal, Mr. Mihalcea appealed his criminal sentences for the crimes of aggravated theft in 2011 and 2007, yet was denied and required to serve a penalty of three years’ imprisonment. In March 2023, before the High court, the respondent objected to his surrender on multiple grounds. He asserted that surrender was a breach/ disproportionate interference with rights pursuant to Article 8 of the European Convention on Human Rights (Family Rights) along with Article 2 and/ or 3 (body integrity). The respondent included a lengthy examination on the conditions of Romanian prisons within his argument, to further evince his claim that the poor conditions of his imprisonment manifested a breach of his individual rights.

Judgment: The judge considered relevant case law, legal principles (specifically statute pertaining to individual rights and freedoms) and documentation, including the ‘Report to the Romanian Government on the visit to Romania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)’. Yet, it was held that the mere existence of evidence of a risk of inhuman and degrading treatment in the issuing Member State cannot, in itself, lead to a refusal to execute a European Arrest Warrant. The court requested the judicial authority of Romania, that with a matter of urgency, provide necessary supplementary information on the conditions it is envisaged the respondent will be detained in the Member State. The judge carefully considered ECtHr cases, particularly those from within the last 36 months, as it was concluded that the improvement of prison conditions in Romania are a work in progress. Following the evaluation of the information before the court, the judge was not satisfied that there were substantial grounds for believing that the respondent is at a real risk of being subjected to inhuman or degrading treatment. The court invoked the test set out by the Supreme Court in which must be applied where an application for surrender is opposed on the grounds of Article 8 of the ECHR, as in Minister for Justice and Equality v. Vestartas [2020] IESC 12 by MacMenamin J. The judge found that in light of this test and the facts of the respondents case, there was no delay that would result in a breach of his Article 8 rights.

Conclusion: The respondent’s argument was disproved, and thus, the court concluded with an order pursuant to Section 16 of the Act of 2003, enforcing the surrender of the respondent to Romania.

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 6 ^th day of March, 2023

1 . By this application, the applicant seeks an order for the surrender of the respondent to Romania pursuant to a European Arrest Warrant dated the 2 ^nd of December 2013 (“the EAW”). The EAW was issued by Liliana Mirela Puşcaşu, Judge of the Oneşti Court of Law, as the issuing judicial authority.

2 . The EAW seeks the surrender of the respondent in order to enforce a sentence of 3 years' imprisonment. An appeal filed by the respondent in relation to same was deemed unsuccessful on the 17 ^th of October, 2013.

3 . The respondent was arrested on the 15 ^th of December, 2021 on foot of a Schengen Information System II alert, and brought before the High Court on that date. The EAW was produced to the High Court on the 21 ^st of December, 2021.

4 . 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 that regard.

5 . I am satisfied that none of the matters referred to in ss. 21A, and s. 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 prohibited for any of the reasons set forth in any of those sections.

6 . I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.

7 . A chronology of relevant events can be derived from a review of the EAW and the additional information received from the issuing judicial authority as follows:

• • On the 13 ^th of December 2007, in relation to Criminal sentence no. 1085, Oneşti Court of Law imposed a suspended sentence of 2 years and 4 months in respect of the offence of Aggravated Theft.

• • On the 3 ^rd of June 2013, in relation to criminal sentence no. 332, Oneşti Court of Law imposed a sentence of 8 months in respect of an offence of Aggravated Theft and revoked the conditional suspension of the 2 years and 4 months' sentence referred to above. This had the result that Mr. Mihalcea was required to serve a sentence of three years' imprisonment.

• • On 17 ^th October 2013, in relation to criminal decision no. 1041 of Bacău Court of Appeal, the appeal by Mr. Mihalcea against the criminal sentence no. 332 dated 3 ^rd June 2013 of Oneşti Court of Law was denied as ungrounded. This had the result of requiring Mr. Mihalcea to serve the penalty of 8 months' imprisonment and the 2 years and four months' imprisonment which resulted in the defendant being required to serve a total penalty of three years' imprisonment, as referred to at paragraph C2 of the EAW.

8 . On the 13 ^th December 2007, the respondent was represented by a lawyer, and he received a 2 years and 4 months' suspended sentence. On the 3 ^rd June 2013, the respondent was present. An 8-month prison sentence was imposed on that date, and the 2 years and 4 months' suspended sentence was activated. On the 17 ^th October 2013, the respondent appealed the three-year sentence. The respondent was not present at the appeal hearing but his lawyer was. In all the circumstances, I am satisfied that the defence rights of the respondent were respected, and no issue arises under Section 45 of the Act of 2003.

9 . It was clarified by additional information dated 29 ^th December 2021 that the tick box was incorrectly ticked in the EAW. Thus, correspondence must be shown in the ordinary way:

• (i) ‘The 2011 offence’: This offence corresponds with the offence of Burglary contrary to Section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and/or Theft contrary to Section 4 of the Act of 2001 in this jurisdiction.

• (ii) ‘The 2007 offence’: The details of the second offence are set out in the additional information dated 29 ^th December 2021, and this offence corresponds with the offence of Burglary contrary to Section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and/or Theft, contrary to Section 4 of the Act of 2001 in this jurisdiction.

Grounds of Objection

10 . The respondent objected to surrender on a large number of grounds. In light of those objections, this Court sought additional information from the issuing judicial authority. As a consequence of the additional information received on foot of those requests, the respondent objected to surrender on the following remaining grounds:

• (i) To order the surrender of the respondent would be a breach of, or a disproportionate interference with, his rights pursuant to Article 8 of the European Convention on Human Rights and Article 40.4.1 of the Constitution and/or his family's rights under Article 8 of the European Convention on Human Rights and/or Articles 40.3.1 and 41.1 of the Constitution and/or Articles 6, 7 and 24 of the Charter of Fundamental Rights of the European Union and as a consequence surrender of the respondent would be in breach of Section 37 of the European Arrest Warrant Act, 2003.

• (ii) Further, or in the alternative and without prejudice to the foregoing, to order the surrender of the respondent would expose the respondent to a real risk of a breach of his rights under Article 2 and/or 3 of the European Convention on Human Rights and/or his right to bodily integrity pursuant to Article 40.3.1 of the Constitution and/or Article 2 and Article 4 of the Charter of Fundamental Rights of the European Union and as a consequence surrender of the respondent would be in breach of Section 37 of the European Arrest Warrant Act, 2003 due to, inter alia, the conditions and regime of detention and the management of same in the issuing State.

11

Relevant Country of Origin Material

The respondent opened a large volume of Country-of-Origin Material, however, the

Report of most concern to this Court is the ‘Report to the Romanian Government on the visit to Romania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 19 February 2018 dated 19 March 2019’.

The respondent referred to a number of other reports which I have dealt with below, and subsequently furnished the Court with a second booklet of Country-of-Origin material which I have also dealt with below.

Prison Conditions?

• (i) In this visit, the CPT inspected:

  1. Aiud Prison

  2...