Minister for Justice v Marian Cantea

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Patrick McGrath
• Judgment Date: 08 November 2024
• Neutral Citation: [2024] IEHC 722
• Docket Number: 2023 No. 194 EXT 2023 No. 199 EXT 2023 No. 200 EXT 2023 No. 201 EXT

Between

Minister for Justice

Applicant

and

Marian Cantea

Respondent

[2024] IEHC 722

2023 No. 194 EXT

2023 No. 198 EXT

2023 No. 199 EXT

2023 No. 200 EXT

2023 No. 201 EXT

THE HIGH COURT

European arrest warrants – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking the respondent’s surrender – Whether surrender was prohibited pursuant to s. 45 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr Cantea, to Italy on foot of five European Arrest Warrants (EAWs) all dated the 17 June 2022 and issued by the Office of the Public Prosecutor at the Court in Udine, to serve a total custodial sentence in respect of all five EAWs of five years and 11 months, of which four years, 10 months and 17 days remained. Five notices of objection were served in relation to each of the five EAWs, objecting to surrender on the following grounds: (a) each EAW did not meet the requirements of effective judicial protection and the effective remedy was refusal of surrender; (b) each EAW was deficient in material particulars; and (c) surrender was prohibited pursuant to s. 45 of the European Arrest Warrant Act 2003 - that objection related to the second, fourth and fifth EAWs only.

Held by McGrath J that the EAWs contained sufficient detail such as to make the respondent aware of the nature of the offences of which he has been convicted; there was sufficient available information to allow the Court to carry out its functions under the 2003 Act. McGrath J held that the earlier judicial proceedings which underlay the domestic warrant issued in relation to each of the five EAWs followed a judicial process in each of the five courts in question, which had resulted in convictions and sentences being imposed. Therefore, the Court could, in line with reasoning of the CJEU, presume that the decision to issue the EAWs for the purpose of executing each of those five sentences was the result a procedure in Italy where the respondent had the benefit of all appropriate safeguards prior to the passing of the sentences. McGrath J found that there could be no doubt from EAW 1 for what offences his surrender was sought and no difficulty in establishing correspondence. He found that no issue arose in relation to compliance with the requirements of s. 45 in relation to EAW 3. Applying the principles set out in Minister for Justice v Zarnescu [2020] IESC 59 to the circumstances relating to EAWs 2 and 4, he was satisfied that the rights of defence were not breached in relation to the trial which led to the conviction and sentence of the respondent. McGrath J could not conclude that the rights of defence were upheld in the process which led to the conviction and sentence for which surrender was sought on EAW 5; there was a trial in absentia, none of the relevant boxes in s. 45 were met and there was no evidence from which the court could find that the respondent was aware of the proceedings and chose not to attend the same or, by his actions, waived any right to attend such proceedings. Given that the respondent would not be required to serve any of the sentence of imprisonment imposed in respect of the offences in EAW 3, McGrath J held that the respondent’s surrender was prohibited pursuant to s. 38(1)(a)(ii) of the 2003 Act.

McGrath J refused to make an order for the surrender of the respondent in relation to EAWs 3 and 5, and made an order for his surrender in relation to EAWs 1, 2 and 4.

Application granted in part.

JUDGMENT of Mr Justice Patrick McGrath delivered on the 8 of November 2024

APPLICATION

1 By this application, the applicant seeks an order for the surrender of the respondent to Italy on foot of five European Arrest Warrants all dated the 17 June 2022 and issued by the Office of the Public Prosecutor at the Court in Udine. The Respondent's surrender is sought to serve a total custodial sentence in respect of all five Warrants of five years and 11 months, of which four years, 10 months and 17 days remain.

2 The Respondent was arrested on the 25 October 2023 on foot of an SIS alert and brought before the Court the following day with the Warrants thereafter produced on the 3 November 2023. The Respondent has remained in custody pending the conclusion of these proceedings.

3 A number of s.20 Requests were sent to the IJA and replies were received thereto over the course of period of months.

4 I am satisfied that the person named in the Warrants is the Respondent and I further note that no issue is taken on identity.

5 I am satisfied that none of the matters referred to in section 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the 2003 Act”), 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.

6 I am further satisfied that the EAW was issued by a judicial authority within the meaning of the Framework Decision and the 2003 Act.

7 I am further satisfied that no issue arises which would prohibit surrender pursuant to Part 3 of the said Act.

8 I am satisfied that information contained in each of the EAWs, together with the additional information provided following requests made to the IJA pursuant to s.20 of the 2003 Act, is sufficient to meet the requirements of s.11 of the 2003 Act.

9 The Respondent is sought to serve a sentence of more than four months imprisonment in respect of the offences set out in each of the five EAWs and I am therefore satisfied that the minimum gravity requirements as set out in Section 38 (1) (a) (ii) of the 2003 Act are met.

10 In Part (e) of each Warrant the offences for which surrender is sought are set out and can be summarised as follows:-

• (i) The offences in the First EAW concern a. the Theft of 17 packages of cream and razor blades to the value of €255.70 and b. the Handling of stolen goods including bottles of alcohol, powdered tea and shaving refills, on the 14 December 2017.

• (ii) The Second EAW relates to the Theft Razor Blades and bottles of alcohol on the 14 December 2017 with a total value of €940;

• (iii) The Third EAW concerns the Attempted Theft of over €1600 worth of goods (coffee and razors) on the 11 September and the 7 October 2017;

• (iv) The Fourth EAW concerns the Theft of Razor Blades with a value of €400 approximately on the 12 October 2012; and

• (v) The Fifth EAW concerns the Theft of dental adhesives with a value of €621 on the 16 September 2016

11 The IJA has certified that the offence at b. in the First EAW above, namely the Handling of Stolen Goods, is a ticked box offence i.e. one of the offences which is set out in the various categories of offences for which it is unnecessary to show correspondence under Article 2.2 of the Framework Decision. In the absence of manifest error, such certification by the issuing state is conclusive and I find no such error.

12 The other eight offences described in the 5 Warrants consist of five offences of Theft and three offences of Attempted Theft. Having considered the conduct described as constituting the said offences at paragraph (e) of each of the said Warrants I am satisfied that the offences in question correspond with offences under Irish Law, including:-

• (i) Theft contrary to Section 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001

• (ii) Attempted Theft contrary to Common Law;

• (iii) Possession of Stolen Property contrary to Section 18 of the 2001 Act; and

• (iv) Handling of Stolen Property contrary to Section 17 of that Act.

GROUNDS OF OBJECTION

13 Five Notices of Objection were served in relation to each of the five warrants, objecting to surrender on the following grounds:

• a. Each EAW does not meet the requirements of effective judicial protection and the effective remedy is refusal of surrender;

• b. Each EAW is deficient in material particulars; and

• c. Surrender is prohibited pursuant to s45 of the 2003 Act – this objection relates to the second, fourth and fifth EAWs only.

INSUFFICIENT DETAILS IN EAWS

14 The ‘arrest warrant or judicial decision having the same effect’ [Paragraph (b) 1 of each EAW] is stated in each of the five EAWs as Order for the enforcement of concurring sentences no. 469/2021 SIEP issued by the Prosecutor of the Republic at the Court of Udine on the 10 November 2021 and the enforceable judgment for each of the five EAWs [Paragraph (b) 2 of each EAW] is set out thereafter. In a footnote to each of the EAWS, it is stated that where (as here) a person has multiple convictions, under the Italian Code of Criminal Procedure, the Public Prosecutor where the last judgment becomes final, has the authority to establish the sentence to be served. In this case such person was the Public Prosecutor at the Court of Udine. It should be further noted that there is no dispute that if the Respondent is surrendered on some but not all of the EAWs, he will only be required to serve the time in custody which has been imposed in respect of the offences in the EAWS where surrender is ordered.

15 By letter of request dated the 11 December 2023 (see Q1 thereof), additional information was sought in relation to whether the decision of the Court of Udine of the 10 November 2021, enforcing the various concurrent sentences, was a judicial hearing or administrative decision. In its reply of the 22 December 2023, the IJA stated:

• a. Under Italian law, the public prosecutor is in charge of the enforcement of custodial sentences imposed by a Court;

• b. The public prosecutor attached to the Court which delivers conviction issues the enforcement order whereby he or she orders that the convicted person be detained;

• c. Where there are multiple convictions, the public prosecutor of the court which delivered the last judgment of conviction issues the order for enforcing...