Minister for Justice v Sorin Cosmin Draghia

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Paul Burns
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] IEHC 414
• Year: 2021
• Docket Number: [2020 No. 413 EXT.]

Between

Minister for Justice

Applicant

and

Sorin Cosmin Draghia

Respondent

[2021] IEHC 414

[2020 No. 413 EXT.]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 16th day of June, 2021

1 By this application, the applicant seeks an order for the surrender of the respondent to Romania pursuant to a European arrest warrant dated 29th September, 2020 (“the EAW”). The EAW was issued by Judge Cernus Dubravca, of the Timis County Court, as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent in order to enforce a sentence of five years' imprisonment from which the period 16th May to 23rd May, 2018 will be deducted.

3 The EAW was endorsed by the High Court on 21st December, 2020 and the respondent was arrested and brought before the High Court on 1st March, 2021.

4 I am satisfied that the person before the Court 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, 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 precluded 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 Section 38(1)(b) of the Act of 2003 provides that it is not necessary for the applicant to establish correspondence between the offences to which the EAW relates and offences under the law of the State, where the offences referred to in the EAW are offences to which 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 and carry a maximum penalty in the issuing state of at least three years' imprisonment. In this instance, the issuing judicial authority has certified that the offence referred to in the EAW is an offence to which article 2.2 of the Framework Decision applies, that same is punishable by a maximum penalty of at least three years' imprisonment and has indicated the appropriate box for “illicit trafficking in narcotic drugs and psychotropic substances”. There is no manifest error or ambiguity in respect of the aforesaid certification such as would justify this Court in looking beyond same. In any event, I am satisfied that if necessary to do so, correspondence could be established between the offence to which the EAW relates and an offence under the law of the State, namely possession of drugs for the purpose of supply contrary to s. 15 of the Misuse of Drugs Act, 1977, as amended, and/or possession of drugs contrary to s. 3 of that Act.

8 At part D of the EAW, it is indicated that the respondent was personally present at the trial following which the court decision was delivered.

9 The issuing judicial authority has also indicated at part D of the EAW that it is relying upon the following:-

“3.2. being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial.”

10 Part D.3.4. of the EAW has also been completed by the issuing judicial authority, purportedly indicating that it is relying upon the fact that the respondent will have a right of appeal. At part B of the EAW, it is indicated that the enforceable court order is a criminal sentence number 58/24, dated 24th February, 2020 of Timis County Court delivered in case file number 2561/30/2019 and it is further stated:-

“Final by the criminal decision no. 755/A/03 September 2020 delivered by Timisoara Court of Appeal in the case file no. 2561/30/2019, by which the defendant's appeal was rejected.”

11 Due to the ambiguity in respect of part D of the EAW, a request for additional information was sought. By reply dated 29th December, 2020, it is indicated that the respondent appeared personally at certain points of the proceedings before Timis County Court and was represented by his chosen lawyer throughout the proceedings. As regards the appeal, the respondent did not appear personally but was represented by a different chosen lawyer from that at first instance.

12 At hearing the respondent objected to surrender on the following grounds:-

• (i) surrender is precluded by reason of s. 37 of the Act of 2003 as the minimum sentence provided for under Romanian law in respect of the offence in question is one of five years' imprisonment which is disproportionate and contrary to the Constitution;

• (ii) surrender is precluded by reason of s. 45 of the Act of 2003, as the hearing had taken place in the absence of the respondent and the requirements of that section had not been met;

• (iii) surrender is precluded by reason of an unacceptable lack of clarity in the EAW insofar as it is stated to relate to one offence and yet the details of that offence appear to refer to a number of different types of wrongdoing; and

• (iv) surrender is precluded by reason of the respondent having lodged an application before the European Court of Human Rights (“the ECtHR”) in respect of his conviction and sentence.

13 The respondent swore an affidavit dated 11th May, 2021 in which he avers that he has lodged an application with the ECtHR in respect of his conviction, which he believes was in breach of article 6 of the European Convention on Human Rights (“the ECHR”). He avers that he has instructed a Romanian lawyer in respect of that application and exhibits a copy of the original application and translation to confirm that his application for admissibility to the court is under active consideration. The application form exhibited with the affidavit completed on behalf of the respondent indicates that he was convicted and received a sentence of five years' imprisonment before Timis County Court. It is stated:-

“I appealed the sentence, within the legal time to appeal, before Timisoara Court of Appeal.”

The form then sets out his complaints regarding the trial at first instance and the evidence given at the initial trial. It goes on to criticise the Timisoara Court of Appeal for refusing the appeal. It states:-

“Also, on the court date of 02/07/2020 I was not present but, through my lawyer Adrian Badi, I requested the Timisoara Court of Appeal court a court date for the purpose of hearing from me, because I haven't been heard by the court of first instance…”

14 It is clear from the statement of facts set out in the application to the ECtHR that the respondent was fully aware of the appeal before the Timisoara Court of Appeal and was represented by his lawyer at same.

Article 37 of the Act of 2003 – Proportionality/Constitutionality of Mandatory Minimum Sentence

15 Section 37 of the Act of 2003 provides that a person shall not be surrendered under the Act of 2003 if his or her...