Minister for Justice, Equality and Law Reform v Gheorgie

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 09 April 2008
• Neutral Citation: [2008] IEHC 115
• Docket Number: Record Number: No. 125 Ext/2007
• Court: High Court
• Date: 09 April 2008

[2008] IEHC 115

THE HIGH COURT

Record Number: No. 125 Ext/2007

Record Number: No. 126 Ext/2007

Min for Justice v Gheorgie

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Florin Gheorgie

Respondent

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Violeta Corina Gheorgie

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S45

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S10(d)

MIN JUSTICE v TOBIN UNREP PEART 12.1.2007 2007 IEHC 15

PENAL PROCEDURE CODE ART 522 (ROMANIA)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5(1)

CRIMINAL PROCEEDINGS AGAINST PUPINO 2005 ECR I-5285

Abstract:

Criminal law - European arrest warrant - Surrender - Romania - Husband and wife - Serving sentence - Conviction and sentence in absentia - Undertaking to comply with legislation - Article 41 Constitution, Article 8 ECHR, European arrest warrant Act 2003

: The applicant sought to surrender the respondents, a married couple, to Romania to serve the remainder of a sentence imposed. The respondents were convicted in absentia. The first respondent was the parent of an Irish born child. The respondents claimed that they received no notification of the trial. The issue arose as to whether an undertaking was required and whether the respondents had “fled” Romania, pursuant to s. 10 of the European Arrest Warrant Act 2003 and whether their surrender was in breach of Article 41 Constitution and/ or Article 8 EHCR.

Held by Peart J. that assertions made by the respondents had been highly misleading. The respondents had fled Romania within the meaning of s. 10 of the Act of 2003 and evidence existed to show that the respondents had been notified of the trial. The Court was required to make the order for surrender.

Reporter: E.F.

Judgment of

Mr Justice Michael Peart

1 The respondents are husband and wife, and their surrender is sought on foot of two European arrest warrants, each dated the 17^th January 2007. Each warrant was endorsed by the High Court for execution on the 25^th July 2007. The first named respondent, Florin Georghie, was duly arrested here on 9^th November 2007, and his wife Violeta Gheorgie, the second-named respondent was duly arrested here on the 14^th November 2007. Each respondent was brought before the court immediately following arrest as required by section 13 of the European Arrest Warrant Act 2003, and each was reminded from time to time, on bail, pending the hearing of the present applications for their surrender.

2 To a large extent, the applications can be dealt with together since the basic facts underlying the application for surrender on foot of these warrants are identical, as are the points of objection in relation to each. In so far as there may be some points of distinction as to the facts relating to one or other of the respondents, I will deal with those as they arise.

3 No issue arises as to the identity of either respondent, and the court is satisfied by the affidavit evidence provided by the arresting Garda officer, Sgt Anthony Linehan that the persons he arrested on the 9^th November 2007 and the 14^th November 2007 are the persons in respect of whom each European arrest warrant has been issued.

4 In each case, the respondent has been convicted of the offences set forth in the warrant, and each has been sentenced to terms of imprisonment on foot of those convictions which satisfy the minimum gravity requirement under the Framework Decision, namely that there is more than four months outstanding in respect of the sentences to be served. Each respondent was convicted and sentenced in absentia, and a point arises in each case as to whether an undertaking is required in order to comply with the provisions of section 45 of the Act. I will address that point of objection in due course.

5 In each also an objection has been raised under section 10 of the Act in so far as it is contended that neither respondent can be deemed to have "fled" from Romania in order to escape justice, given the circumstances of their departure from that country as sworn to in their grounding affidavits.

6 The final point of objection is that to order their surrender will breach the respondents' constitutional rights under Article 41 of the Constitution and Article 8 of the European Convention of Human Rights as such surrender would operate as"an unjust interference with and intrusion upon the private and family rights of the respondents".

7 Subject to reaching conclusions upon the points of objection which have been raised, I am satisfied that all the provisions of section 16 of the Act have been complied with, and that there is no reason under sections 21A, 22, 23 or 24 of the Act why surrender should be refused, and I am also satisfied that the surrender in each case is not prohibited by any provision of Part III of the Act or the Framework Decision.

8 It appears from the warrants that on the 24^th January 2005 the respondents were convicted and sentenced. The first named respondent was convicted on two offences of swindling for which he received sentences of 8 years and 12 years imprisonment respectively. The second-named respondent was convicted on three offences, being two in respect of swindling and one in respect of forgery of administrative documents, and for which she received three sentences of imprisonment namely 12 years, 8 years, and 2 years respectively. It would appear from the facts contained in the warrant that these sentences were the subject of review through an appeal process and were confirmed.

9 Each warrant contains approximately 6 full pages of text which describes in great detail the nature of the offences for which the respondents were convicted. There is no need to set out all of that factual detail in my judgement. It suffices to say that between August 1999 and March 2000 the respondents were involved in achieving the sale of a premises in Bucharest through fraud from which they obtained a significant sum of money. Forgery of documents by the second named respondent was involved also.

10 According to the warrant in the case of the first named respondent, he did not appear before the court at any of the hearings which resulted in his conviction. However at paragraph (d) of the warrant in his case, it is stated:

"The person was personally summoned at all his known addresses and by display at the 1^st district City Hall of the date and place of the hearing at which the decision was pronounced in absentia, the person eluded the summons, not appearing before the court at any of the hearings. We should mention that before the appeal court he was represented by a chosen defender Antal Radu. In the stage of penal prosecution he also eluded the authorities, a preventive arrest in absentia being ordered, by preventive arrest warrant no. 65 on 29^th May 2002, issued by the Prosecutor's Office by the Supreme Court of Justice."

11 In respect of the second-named respondent, the warrant recites that in respect of the decision rendered in absentia"the respective person has been summoned in person of the date and place of the hearing and was present at the first hearing, then he/she eludes the court and does not attend any other hearing, the decision being pronounced in absentia, but he/she was represented by a public defender appointed by the court."

12 Each respondent has filed an affidavit in support of the grounds of objection being argued. The first named respondent has filed a supplemental affidavit also.

13 In his first affidavit, the first named respondent has stated that he was born in Romania but that he presently enjoys legal status in Ireland, since he is the parent of an Irish-born child. He states that he is a Romanian national by birth and resided in Romania for the entirety of his life until August 2000. It will be recalled that, according to the warrant, the offences in this case were committed between August 1999 and March 2000. His affidavit goes on to state that in the year 2000 he was residing with his wife and his son Adrian and his daughter Georgina in Bucharest. He states that in the summer of the year 2000 both he and his wife were out of work and decided that they would leave Romania and make a new life elsewhere since it was difficult at that time to find work and they wished to provide a better future for their children. He then describes how on the 22^nd August 2000 he and his wife travelled from Bucharest to London, that the arrangements were made through a travel agent and that for the purposes of their trip it was necessary to obtain a visa from the British Embassy. He states that they informed the British Embassy that they wished to leave Romania on holiday and would be returning to Romania. He then describes how they travelled to London and that upon arrival they then travelled by bus and boat to Belfast and thence by taxi to Dublin where they made an application for refugee status. Later in his affidavit he states that prior to his departure from Romania he was never questioned or informed of any accusations made against him and was unaware of any criminal investigation into his activities. He states that he is innocent of all the offences set out in the warrant and that he has an unblemished character record with no previous convictions in Ireland or Romania and that he was shocked to learn of the allegations against him. He avers that his departure from...