MJELR -v- Gritunic, [2009] IEHC 342 (2009)

Docket Number:2008 209 EXT
Party Name:MJELR, Gritunic
Judge:Peart J.
 
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THE HIGH COURT2008 209 EXT

BETWEEN

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANTAND

IGOR GRITUNIC RESPONDENT

JUDGMENT of Mr. Justice Michael Peart delivered on the 30th day of June 2009

The application before the Court is one seeking the surrender of the respondent on foot of a European arrest warrant which was issued by a judicial authority in Paris, France on the 25th June, 2008 following the trial and conviction of the respondent on the 21st May 2008 in absentia for certain offences as set forth therein ("the second warrant"). There is some confusion said to exist by the respondent in this case as to exactly how many and/or what offences he was convicted for on that date, and I will come to that controversy in due course. But in any event he was sentenced to a term of five years' imprisonment.

At any rate that warrant was received by the Central Authority here on or about the 21st November, 2008, following which an application to endorse that warrant for execution was made to the High Court on the 25th November, 2008. The warrant was duly endorsed for execution on that date, and on the following day, the 26th November, 2008, the respondent was duly arrested on foot of it and was brought before the Court as required by s. 13 of the European Arrest Warrant Act 2002, as amended. He has been remanded in custody from time to time thereafter pending the hearing of the present application.

There is however a history to the present application which is important. On the 6th February, 2007, a European arrest warrant was issued by the same French judicial authority seeking the surrender of the respondent to face prosecution for the offences set out therein ("the first warrant"). That warrant was endorsed by the High Court for execution on the 4th June, 2008. The Court has been informed that this first warrant had been received by the Central Authority here on the 14th March 2007, but thereafter further information was sought by the Central Authority, hence the application for endorsement did not proceed until the 4th June 2008. I should at this point refer to the fact that the date on which this application for endorsement was made and granted post-dated the trial and conviction in absentia of the respondent on the 21st May 2008. That fact had not been communicated to the Central Authority here and therefore it is clear that the High Court was not appraised of the fact that the respondent could no longer be surrendered to face prosecution. An issue arises in relation to that which I will come to.

On the 14th July 2008, again in the absence of any knowledge on the part of the Central Authority or the Court the respondent had already been tried and convicted in his absence, the respondent was duly arrested on foot of the first warrant and brought before the Court and was thereafter remanded in custody from time to time pending the application on foot of that first warrant for his surrender. An application for bail was heard by the High Court and was refused following objection to bail being made. By November 2008 the respondent had learned that he had been tried and convicted in his absence on the 21st May 2008 and his solicitors so informed the Central Authority of this fact on the 20th November 2008. On the 25th November 2008 an application was made to this Court in the presence of the respondent (since he had been remanded to that date and was present before the Court) to withdraw the first warrant. That application was granted, and immediately following that withdrawal, the respondent's release from custody was ordered, and he was released. However, immediately thereafter the Applicant made the application to have the second warrant endorsed for execution, and a short time thereafter the respondent was re-arrested on foot of same and brought back to the High Court on foot thereof, and he was again remanded in custody pending the hearing of the present application for surrender on foot of the second warrant so that he can be surrendered to serve the sentence imposed on the 21st May 2008.

By the time the first warrant was withdrawn, the respondent had been in custody for a period of some nine months.

The number of offences:

Before addressing the points of objections raised by the respondent I should set out the differences in the two warrants and the actual conviction order of the French Court dated 21st May 2008 as to how many offences are involved in this case.

The first warrant:

In the first warrant, it is stated that the surrender of the respondent was being sought so that he could be prosecuted for "three offences" (my emphasis). In respect of these offences three separate boxes were marked with an 'x' in paragraph E.1. in order to indicate that all three offences were offences within the categories of offence set forth in Article 2.2 of the Framework Decision, and therefore ones in respect of which double criminality need not be verified. The first warrant sets out a recitation of facts giving rise to these offences as follows:

In Paris on the national territory, since January 2006 and in the course of 2007, over 2005, 2006 and 2007 as perpetrator.

Aggravated procuring (several victims, several perpetrators), understanding for the purpose of committing such a violation as aggravated procuring, possession of forged administrative documentation, facts provided for and repressed by sections 225-5, 225-7, 225-11, 225-20, 225-24, 225-21, 450-1, 441-3, 441-9, 441-10, 441-12 of Penal Code.

On 29th June 2006 the French Central Department for the Repression of the Trafficking of Human Beings (OCRTEH) recorded the complaint of a Brazilian person, Oliviera Juara Moreira. The young woman explained that upon her arrival over the French territory she had been forced into prostitution by two men, Sacha and Leon.

She added that Leon had beaten her up and raped repeatedly. Further to that complaint the police arrested Constantin Bardan who admitted he had approached the young woman in Brazil and stated that Sasha, whose real name would be Igor GRITUNIC, would reside in Ireland. He would use a forged Spanish passport no X50395 and ID no RE 008800019325 in the name of Suwwan de Filipe Karim, born 20th April 1980 in Brasilia (Brazil). His mobile number in Ireland would be 353 862 190 236.

I should add that additional information was provided to the Central Authority in the form of letters from the French judicial authority relating to the factual basis for these offences.

The three boxes marked with an 'x' in this first warrant were:

• Participation in a criminal organisation

• Sexual exploitation of children and child pornography

• Forgery of administrative documents and trafficking therein.

In the additional information provided, the French judicial authority stated that the box for 'Sexual exploitation of children and child pornography' was marked in error, and that the correct offence to be marked was 'trafficking in human beings'.

The conviction in absentia on 21st May 2008:

The order of the French Court made on the 21st May 2008 following the conviction in absentia of the respondent states that he was found guilty of the following offences:

"Aggravated Pimping: Victim engaged in prostitution since her arrival in France, offence committed from January 2006 until the 27th of April 2006 and for a period not under the statute of limitations, in Paris and on the whole national territory"

Aggravated Pimping: Multiple perpetrators and accomplices, offence committed from January 2006 until the 27th of April 2006 [mistakenly stated as 2007] and for a period not under the statute of limitations, in Paris and on the whole national territory.

Possession of several falsified administrative documents, offence committed from January 2005 until January 2007 and for a period not under the statute of limitations, in Paris and on the whole national territory.

Use of falsified administrative documents stating a right, an identity or a quality, offence committed from January 2005 until January 2007 and for a period not under the statute of limitations, in Paris and on the whole national territory."

This suggests that the respondent was convicted in respect of four offences whereas his surrender on foot of the first warrant was said to be for the purpose of prosecuting three offences as already set forth.

The second warrant:

This warrant seeks surrender so that he can serve the sentence of five years imprisonment imposed on the 21st May 2008 in respect of "two offences" (my emphasis). Paragraph c under the heading 'Violations', having referred to "two offences" states as follows as to the underlying facts:

"Facts committed in Paris, since January 2006 till 27 April 2006 within the provisions of the statutes of limitation as perpetrator.

On 29 June 2006 the French National Vice Squad in charge of repressing procuring received a complaint from a Brazilian woman, Oliviera Juara MOREIRA. The young lady complained that upon her arrival in Paris she had been coerced in doing prostitution by two men, SACHA and LEON. She added that LEON had repeatedly raped and beaten her up. The investigation made it possible to arrest Constantin Bardan who admitted he had approached the girl in Brazil and added that SACHA, whose real name was Igor GRITUNIC, would reside in Ireland. He would use a forged Spanish passport no X 50395 and identification number RE 008800019325 in the name of Karim SUWWAN DE FILIPE, born 20 April 1980 in Brasilia (Brazil). It appeared he had opened a phone line under his alias and sent several money orders to Brazil between February and May 2006 to the benefit of Constantin BARDAN. He received Oliviera Juara MOREIRA at the Orly airport and brought her to the place where she would prostitute. In spite of the warrant of arrest he has not been arrested and should be seen as absconding and fleeing justice.

The two offences referred to in the second warrant are described in the warrant as being:

Procuring with...

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