High Court dismisses Article 8 objection and orders surrender to France for serving a three-year sentence.

THE HIGH COURT

BETWEEN Record No 2024 EXT 239

[2025] IEHC 459

MINISTER FOR JUSTICE

APPLICANT

v.

Constantin Hitu (AKA Costea Ivanov)

RESPONDENT

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 6 August 2025

1. The applicant seeks the surrender of the Respondent to the Republic of France on foot of a European Arrest Warrant [‘EAW’] dated the 19 October 2020. He is sought in order to serve a sentence of three years imprisonment, imposed in absentia by the Correctional Court on the 1 October 2020.

2. The Respondent was arrested on the 17 November 2024 pursuant to an S.I.S Alert and brought before the Court on the same date. On 29 November 2024, a bail application was made before the Court and the respondent was admitted to bail pending the outcome of these proceedings.

3. A s. 20 request issued on 20 December 2024 to which a partial response was received dated 27 January 2025. A second s. 20 request seeking answers to the balance of the questions issued subsequently. A third request issued seeking clarification on the number of offences in respect of which the Respondent was convicted, and details of

same. In response the same reply of the 27 January was re-sent together with a two page document in relation to Rennes Men’s Prison Centre.

First s. 20 Request a. Question A - The questions asked in Part A of the request sought clarity surrounding the number of offences to which the warrant relates and the locations in which they were committed. As outlined above the Warrant itself says that it relates to two offences. It refers to:

i. Theft by ruse, burglary or escalation in a dwelling room or warehouse aggravated by another circumstance, committed ln the national territory from

21 December 2017 to 16 May 2018 provided by Articles 311-5, 311-4. 311-1,

132.73 and 132-74 C PENAL and punishable by Articles 3tf-5 AL 5, Article 311-14 C PENAL; and ii. Participation in criminal association for the preparation of an offence punishable by 10 years’ imprisonment, committed in the national territory from 1 December 2017 to 16 May 2018 provided for ln Articles 450-1 AL 1, AL 2 C PENAL and punishable by Articles 450-1 AL 2, 450-3, 450-5 C PENAL.

The additional information provided on the 27 January 2025 indicates that the Respondent was convicted of 7 acts of theft and was also sentenced to the offence of criminal association with a view to committing an offence punishable by 10 years.

b. Question B - The question in Part B of the request relates to the use of the ticked box section in the EAW. On the Warrant “Vols commis en bande organisée ou avec arme” is ticked, or in English “Organised gang or armed robbery”. This is not identical to the text contained in Article 2.2 of Framework Decision 2002/584/JHA which is “vols organisés ou avec arme” in French, or “Organised or armed robbery”

in English. Clarity was sought arising from this difference in language and the fact that the factual detail at Part (e) does not appear to disclose a robbery. The reply to the s.20 request while mostly referring to offences of theft says, “the robberies were not committed by an organized gang or with a weapon…”.

c. Question C - The question in Part C relates to the nature of the any retrial upon surrender. The Warrant at Part D contained the phrase “the interested party may object”. Clarity was sought as to the nature of a retrial or appeal and whether this is automatic (subject to the formality of making such an application). To date no answer has been received to this specific question. It was however indicated that the Respondent had unsuccessfully sought to appeal the conviction without, as required, his attendance in person at such hearing.

d. Question D - The question at Part D relates to concerns raised by the Respondent in respect of prison conditions. A partial answer was received to this query which indicated the particular prison in which the Respondent will be detained if surrendered.

Uncontroversial Matters

4. No issue is taken as to identity, and I am in any event satisfied that the person arrested on foot of the EAW and currently before the Court is the person named in that Warrant.

5. The minimum gravity requirement under the 2003 Act is clearly met as the Respondent is sought to serve a sentence of three years’ imprisonment.

6. The EAW was issued at the Rennes Correctional Court on 19 October 2020. I am satisfied that the warrant was issued by a judicial authority within the meaning of the European Arrest Warrant Act, 2003 [‘the 2003 Act’].

7. I am satisfied that none of the matters referred to in sections 22, 23 and 24 of 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.

Grounds of Objection

8. The Respondent objects to surrender on the following grounds:-

(i) His surrender is prohibited under s. 45 of the 2003 Act;

(ii) Correspondence has not been established with offences contrary to Irish Law;

(iii) Surrender ought to be refused as there is an impermissible lack of clarity in the Warrant and it does not meet the requirements of Section 11(1)(d) of the 2003 Act;

(iv) Surrender is prohibited under s37 of the 2003 Act as there is a real risk that, if detained in a French prison, he would be exposed to conditions that would breach inter alia Article 2 and 3 of the European Convention on Human Rights [‘the ECHR’];

(v) Surrender may be prohibited under s. 37 of the 2003 Act as to return him to France on foot of this Warrant would be a disproportionate interference with his personal and family rights under the Constitution and / or Article 8 of the European Convention on Human Rights.

Correspondence

9. The IJA have certified that the offences in respect of which surrender is sought are ‘ticked box offences’, namely amongst the category of offences set out in Article 2.2 of the Framework Decision in respect of which it is not necessary to demonstrate correspondence.

10. An objection was raised on this point by the Respondent, with reference to the decisions of Minister for Justice and Equality -V- Ludwin, unreported High Court, Donnelly J., 23rd April 2018 and Minister for Justice and Equality -v- EP, [2015] IEHC 662, that the reliance on Art. 2.2 is not in the form as set out in the annex to the Framework Decision for the purposes of Section 11(1) of the Act. As such it is submitted correspondence must be established.

11. The Applicant submits that sufficient clarity was provided by the s. 20 response dated

27 January 2025 to establish correspondence with offences in this jurisdiction.

12. The test for correspondence was described as follows by Denham J in Minister for Justice v Dolny [2009] IESC 48 at paragraph 38:-

‘In addressing the issue of correspondence it is necessary to consider the particulars on the warrant, the acts, to decide if they would constitute an offence in the State. In considering the issue it is appropriate to read the warrant as a whole. In so reading the particulars it is a question of determining whether there is a corresponding offence. It is a question of determining if the acts alleged were such that if committed in this jurisdiction they would constitute an offence. It is not a helpful analogy to consider whether the words would equate with the terms of an indictment in this jurisdiction. Rather it is a matter of considering the acts described and deciding whether they would constitute an offence if committed in this jurisdiction.’

13. There are two issues raised in relation to correspondence as follows:- a. There has been a misdescription of the relevant category of offence at Article

2.2 of the Framework Decision upon which reliance is placed by the IJA. This misdescription has not been clarified despite this court raising a request for further information by way of s. 20 of the Act; and b. Correspondence is not made out in respect of the two offences for which surrender is sought.

14. There is some confusion surrounding the ticking of the relevant box for the purposes of Article 2.2 of the Framework Decision and there is also a lack of clarity as to whether the wording of the box chosen in the EAW by the French authorities accurately represents that which is set out in the Framework Decision.

15. As however acknowledged by the Respondent himself this is not fatal, and this court is entitled to look to the EAW itself and see whether correspondence is established. I am satisfied that, adopting the test set out in Dolny, the acts and conduct described in the Warrant and the first s. 20 response, and which are said to constitute offences contrary to French law, establish correspondence with the offences of (a) Theft contrary to s. 4 of the Criminal Justice (Theft and Fraud) Offences Act 2001 in this jurisdiction and / or (b) Burglary contrary to s.12 of the said Act

Section 11

16. Section 11(1)(d) of the Act provides that a relevant EAW shall specify:-

‘(d) the offence to which the [relevant arrest warrant] relates, including the nature and classification under the law of the issuing state of the offence concerned’.

17. The Respondent submits that there is a lack of clarity as to the number and nature of the offences for which surrender is sought, including the involvement and role of the Respondent in the offences for which he is sought.

18. At part (e) of the EAW the circumstances in which the offences for which surrender is sought;

“Theft by ruse, burglary or escalation in a dwelling room or warehouse aggravated by another circumstance, committed ln the national territory from

21 December 2017 to 16 May 2018 provided Articles 311-5, 311-4. 311-1,

132.73 and 132-74 C PENAL and punishable by Articles 3tf-5 AL 5, Article 311-14 C PENAL; and b. Participation in criminal association for the preparation of an offence punishable by 10 years’ imprisonment, committed in the national territory from 1 December 2017 to 16 May 2018 provided for ln Articles 450-1 AL 1, AL 2 C PENAL and punishable by Articles 450-1 AL 2, 450-3, 450-5 C PENAL.”

19. In the additional information provided on the 27 January 2025, the IJA set out the nature and time frame in which the offences were committed. The reply indicates that there were two distinct types of offences, theft by ruse and participation in criminal association. The Respondent was convicted of seven acts of theft and of the offence of criminal association. The additional information listed the locations and details of the offences committed, referring to the following;

“According to the referral order issued on 2 June 2020 before the criminal court in its JIRS formation, more than 70 acts were committed between 1 November 2017 and 2 June 2018 and the investigations led to:

- connections between these burglaries due to an identical modus operandi, for a total loss exceeding 2 million euros, 74 Page 7 of 15

- the incrimination of a dozen individuals divided into two ‘teams’ of thieves, whose members, originally from Romania and Moldova, were in contact and could occasionally move from one team to the other,

- these thieves acted in concert with receivers, some of whom appeared to be ordering parties. These individuals, including Constantin HITU, installed in homes located in the Paris region, acted throughout the national territory according to an identical modus operandi:

- the addresses of the construction sites were first searched for via the internet and listed;

- a first pair, in a vehicle, went to the site: they identified the construction sites, checked the installation of equipment such as boilers or electrical panels and the presence of cameras or security guards and spoke with those who had remained in the Paris region;

- a second pair, in a second car, joined them on site or at the chosen accommodation;

-the thefts were committed in the first part of the evening;

-once the equipment was loaded, the perpetrators left for the Paris region: a first vehicle preceded the second by a few kilometers to open the road for it;

once they arrived in Paris, depending on the schedule, they went directly to a box rented in private residences to unload the stolen equipment. The vehicles used allowed entry into the underground car parks of the construction sites and the rear seats of the cars were generally removed to increase the loading capacity. They were registered using false identities, nominees, or in Bulgaria.

The costs incurred for vehicle maintenance, hotel nights or motorway costs were shared. In order to ensure their anonymity, team members changed telephone lines very regularly, used prepaid lines (without giving their identity or by giving a false identity), communicated with ‘Viber’ type applications to ensure a certain discretion, used false identity documents made to order in Moldova and paid only in cash.”

20. The Respondent submits that the additional information unhelpfully does not provide adequate clarification as to date, nature of involvement of the respondent, and location of the seven incidents which are alleged to have occurred.

21. The Applicant submits that compliance with s.11(1A)(f) is demonstrated insofar as the time period over which the offences was committed is stated, as is the location of each of offence. The modus operandi is the same in respect of each offence which is then outlined to include the Respondent.

22. The Applicant submits that, from the information available, it is clear that there are two types of offence in issue – theft by ruse and participation in a criminal association. There are seven incidents of theft and seven incidents of theft and the separate locations where each of the thefts took place are listed in the Response to the first s. 20 Request; being (i) Ansieres Sur Seine (ii) Chessy (iii) Rennes (iv) St Sebastian Sur Loire (v) Pierre Benite (vi) Clermont Ferrand and (vii) Toulouse. The method of commission of the crimes in question and the time frame during which the offences took place are set out in the reply of the 27th of January 2025 (see paragraph

19 above).

23. In Minister for Justice v Connolly [2014] 1 I.R. 720, Hardiman J stated:-

’30. It is a mandatory requirement of the European arrest warrant procedure that there be unambiguous clarity about the number and nature of the offences for which the person is sought …

31. I consider it to be an imperative duty of a court asked to order the compulsory delivery of a person for trial outside the state to ensure that it is affirmatively and unambiguously aware of the nature of the offences for which it is asked to have him forcibly delivered, and for which he may be tried abroad and the number of such offences’

24. Edwards J in Minister for Justice v Cahill [2012] IEHC 315, identified the three objectives behind the requirement in the Framework Decision and s. 11 of the 2003 Act that there be a sufficient description of the acts of acts alleged in the warrant as being:

a. To enable the High Court to determine if it should endorse the EAW;

b. To provide sufficient information to allow the High Court to determine if correspondence is made out; and c. To enable the respondent to know precisely for what his surrender is sought, to provide him with basic information about the offence to which the warrant relates so as to enable him to raise an objection to surrender under the Act or Framework Decision. As stated by Edwards J ‘In order to evaluate his position, and determine whether or not he is in a position to put forward an objection that might legitimately be open to him to raise, he (and also his legal advisor in the event that he is represented) needs to know, in respect of each offence to which the warrant relates, in what circumstances it is said the offence was committed, including the time, place and degree of participation in the offence of the requested person’

25. What is not required is a recital of the evidence or minute details of the evidence which alleges or establishes criminality in the requesting state – see Donnelly J in Minister for Justice v Sadiku [2016] IEHC 502 at paragraph 45.

26. Having considered all of the information provided I am satisfied that there is sufficient detail provided as to the offences for which surrender is sought including;

the number of offences of which the Respondent was convicted, the circumstances of these offences, the locus of such offences, the modus operandi of the perpetrators of the offences including the degree of participation of the Respondent therein and the sentences imposed for such offences.

27. Having considered the description of the offences for which surrender is sought, the circumstances giving rise to these alleged offences as set out in paragraph (e) of the EAW and the additional information received from the IJA, I am satisfied that there is sufficient clarity provided for the purposes of this court carrying out is functions under the 2003 Act and the Framework Decision.

Section 45

28. The EAW provides at Part D that the;

“2. No, the person did not appear in person at the trial resulting in the

decision”

29. The Respondent takes issue with Paragraph D 3.5 of the EAW that sets out ; “3.5 the person concerned has not personally received service of the decision but: he will receive it personally without delay after delivery, and

- on receiving it, he or she will be expressly informed of his or her right to a retrial or appeal, in which the person concerned has the right to participate and which allows the merits of the case to be re-examined, taking into account the new evidence, and which may lead to the original decision being overturned, and

- it will be informed of the lime limit within which it must request a retrial or an appeal, i.e. 10 days.

The interested party may object. In this case, the original judgment will be overturned and it will be retried for the facts. It will also be presented to a judge (the judge of liberties and detention) who will decide whether or not the person concerned will remain in detention until the new hearing, on the basis of the arrest warrant.”

30. The Respondent suggested some ambiguity arose owing to the use of the phrase ‘the interested party may object’ in the last paragraph above. Out of an abundance of caution a s. 20 request was issued dated 20 Dec 2024 seeking further information on this, asking directly at paragraph C if ;

“The right to a retrial or appeal as outlined in the EAW is automatic and not dependent on a Court finding that the requested person has met certain criteria (other than simply making an application for a new trial)”

31. A response was received dated 27 January 2025, a clear answer was not given to this request, but information was received, confirmed by the Respondent on affidavit, that he sought to appeal the decision with the assistance of a lawyer but this was not permitted as a warrant had been issued and he would not be heard without being present.

32. In this regard, the Additional Information of the 27 January 2025 set out that on October 1 2020 Judgment was delivered and Mr Hitu was found guilty and a 3 year prison sentence was imposed. Opposition to this decision was filed by Mr Hitu on August 29, 2023, by declaration to the registry. Mr Hitu was summoned by bailiff’s writ delivered on March 13, 2024, for the hearing set for June 20, 2024, but did not appear, instead being regularly represented by his counsel with a power of representation. This case was thereafter adjourned to the 14 November 2024, at which hearing Mr Hitu did not appear and he was not represented by his lawyer. The IJA states that:

“The provisions of article 494 of the code of criminal procedure provide that “the opposition is void if the opponent does not appear on the date set for him either by notification given to him verbally and recorded in a report at the time the opposition was filed, or by new summons, issued to the person concerned, in accordance with the provisions of Articles 550 et esq.”

“however, in the event of a sentence of imprisonment without suspension, the court may order the referral of the case to a subsequent hearing without the need to issue new summonses and order the police to search for and bring the opponent before the public prosecutor of the seat of the court, who either summons him to appear at the referral hearing or orders him to be there.”

33. As a result of MR Hitu’s failure to appear at the date of this hearing that his opposition to the original judgement was rendered void.

34. In his affidavit of the 13 February 2025, the Respondent states that he learned of his conviction in August 2023, and thereafter contacted a French lawyer on the 7 August 2023 to inquire if he could challenge the same.

35. He confirms that his Opposition was filed on the 29 August 2023. The Respondents states that he was in Ireland on the date of being summoned by the bailiff and as such was not served and he attaches payslips for the relevant period.

36. He says out that his application was adjourned on the 20 June 2020 - presumably this is a typo and meant 20 June 2024.He was informed by his French lawyer that he had to be present for the adjourned hearing on the 14 November 2024. He did not so attend as he did not see why he his presence was necessary, and he feared he would have been incarcerated if he had gone to France.

37. The respondent submits that information in relation to a procedure which is anything but automatic and is designed to force the presence of the Respondent before the merits of the case would be re-assessed is reminiscent of the caselaw where France was previously found to be in breach of Article 6 ECHR for requiring the presence of an appellant before an appeal would be admissible. In this regard he cites Poitrimol - v- France, 23rd November 1993 (§§ 37 – 39), Khalfaoui -v- France, 14th December 1999 (§§ 46-49) Omar -v- France, 29th July 1998 (§§ 36, 40 & 44) and Guerin -v- France, 29th July 1998 (§§ 34 & 47).

38. The Applicant submits while the reply to the second s. 20 request does not directly address this issue, the Court can be satisfied that no issues arise under this heading. It is clearly set out that the Respondent will be afforded with an appropriate retrial/rehearing. Nothing test casts doubt on this, nor has any evidence been adduced to suggest otherwise.

39. The Respondent has set out in his affidavit the steps he has taken to attempt to set aside his conviction in France already. The reply to the s. 20 question explains that his filed “opposition” was “void” because Article 494 of the Code of Criminal Procedure provides that the opposition is void if “the opponent does not appear…”. Thus, as a matter of French law to have his conviction set aside, he was required to appear. He did not do so and so his conviction was not set aside. It is clear from the Warrant that he will be afford the requisite retrial/appeal if surrendered.

40. It is regrettable that the French authorities have not provided a direct answer to the question of whether the right to re trial is automatic, as raised in the first section 20 request. As noted above, the IJA has however set out the unsuccessful attempts previously made by the Respondent to appeal against that decision with the assistance of a lawyer.

41. Having considered all of the information available, however, and applying the principles of mutual trust and confidence I can nonetheless be satisfied that the terms of Section 45 are met in this case. Applying the principles of mutual confidence and trust and taking into account the information provided in the Warrant and what transpired when the Respondent unsuccessfully attempted to appeal without returning to France, I can be satisfied that there is compliance with Section 45 Paragraph (d) 3.4 in this case, namely:-

(i) He will be served with the decision without delay immediately after surrender,

(ii) He will be expressly informed of his right to a retrial or appeal in which he has a right to participate, and which allows the merits of the case to be reexamined (and this includes the receipt of fresh evidence), and which may lead to the original decision being reversed,

(iii) He will be informed of the time frame within which he must apply for a retrial or appeal.

42. The use of the phrase ‘the interested party may object’ when considered with the words used which assert he will be entitled to a full rehearing or appeal on application do not raise any ambiguity. Indeed, it should be noted in this regard that that phrase is immediately followed by ‘In this case, the original judgment will be overturned and it will be retried for the facts’ which does not raise any question that the re-trial might be somehow conditional.

43. The separate but related issue raised by the Respondent arises from the unsuccessful attempts on the part of the Respondent to previously appeal his conviction without being present in France.

44. The Respondent’s surrender is sought on foot of an EAW which complies with the requirements of s. 45 (d) 3.4 of the 2003 Act. In other words, following his surrender he has an automatic entitlement to a retrial or appeal that complies with the requirements of the 2003 Act and the Framework Decision. Furthermore, he may or may not be incarcerated in a French prison pending any such re-hearing.

45. The Respondent sought to appeal against his decision from outside of France. This was unsuccessful for the reasons described in the Additional Information provided and the Affidavit filed by the Respondent. He has not sought to challenge such refusal in the French courts or at all. There is nothing before this Court to suggest that the Respondent and / or his French lawyer have sought to argue that the internal criminal procedures under the French Criminal Code, as applied to him, have contravened his rights under Article 6 of the Convention.

46. In any event I agree with the submissions of the Applicant in this regard, namely that this is a matter of internal French law. This court should assume, in the absence of evidence to the contrary, that within the French legal system there are available to the Respondent procedures which would allow him to argue a violation of his rights under the Convention.

47. This ground of objection is therefore dismissed.

Prison Conditions

48. The Respondent has submitted Country of Origin materials and case law which he says raise a real risk that, if surrendered and detained in custody in France, he will be subjected to inhuman and/or degrading treatment and his rights under the ECHR would thereby be violated.

49. In his Affidavit dated the 13 February 2025, the Respondent has provided a precis of Country of Origin information at Exhibit CH05. The reports upon which he relies include the following:

a. J.M.B and Others v France (application no.9671/15 and 31 others), European Court of Human Rights, 30th January 2020;.

b. Report dated 24 June 2021 to the French Government on the visit to France carried out by the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT) from 4th – 18th December 2019, Executive Summary.

c. Council of Europe Committee of Ministers meeting, 12th – 14th March 2024, regarding supervision of execution of Judgement J.M.B and Others v France;

d. Prison Insider’s country profile, 2024.

e. Le Controleur General des Lieux de Privation de Liberté, Activity Report 2023 published 27th June 2024 (extract)

f. Le Controleur General des Lieux de Privation de Liberté, Activity Report 2023 published 27th June 2024 machine translation (extract)

g. Information note from the Council of Europe regarding periodic visit by the CPT to France from 23rd September to 4th October 2024 dated 8th October 2024.

h. The Respondent submits that in the present case on the basis of the Country of Origin information that there exists a real risk that:

i. The Respondent may be held in conditions of less than 3 m² for the duration of his sentence. This raises a strong presumption of a breach of Article 3.

ii. The Respondent may be held in an inappropriate detention facility without sufficient freedom of movement outside of the cell. In addition, there are aggravating factors present.

iii. The Respondent may be held in conditions where the space factor is coupled with other aspects of inappropriate physical conditions of detention.

iv. The Respondent will be exposed to inhuman or degrading treatment at the hands of the prison service.

v. The Respondent will be exposed to inter-prisoner violence.

vi. The Respondent will not receive appropriate medical care.

50. The Respondent relied on Muršić -v- Croatia ECtHR app. no. 7334/13 and Bivolaru and Moldovan -v- France, application numbers 40324/16 and 12623/17, ECtHR 25th March 2021 in his that there was sufficient general ‘country of origin’ information to satisfy the first limb of the test laid down by the CJEU in Aranyosi & Caldaru (Joined Cases C – 404/15 and C – 659/15), that the Court seek further information via a s. 20 request in regard to the conditions of detention.

Section 20 requests

51. Having considered the Country-of-Origin information presented by the Respondent in this case, I issued a request to the IJA seeking information and assurances as to the specific conditions of detention that this Respondent would likely face if surrendered to France.

52. A s. 20 request was issued dated 20 December 2024 which sought the following information regarding prison conditions;

‘Can you please provide further information in relation to the following:-

1. Please identify the prison or prisons in which the requested person will be detained if he is surrendered.

2. Please confirm that at all times during his detention, the requested will be afforded a minimum of 3 metres squared of personal space, including furniture, but excluding sanitary facilities, in each of the proposed prisons where he will be detained.

3. Please confirm that, if surrendered, the requested will: a. be kept in a prison with adequate sanitary conditions; b. have access to natural light and artificial lighting and ventilation; c. be provided with clean mattresses and bedding; d. be provided with adequate and partitioned toilet facilities; e. have access to basic hygiene products; f. have outdoor exercise; g. be provided with satisfactory food; and, h. have adequate room temperature.

4. Please confirm that the requested person will be medically assessed on arrival in the Issuing State and that he will be afforded medical care if required.

5. Please confirm that if any suspected threat to the personal safety of the requested person is made known to the prison authorities that an assessment of same will be carried out and, if found to be substantiated, reasonable steps will be taken to provide for the safety of the requested person while in detention.’

53. Following a lengthy period of time, a response was received on 5 March 2025 concerning this matter. The IJA stated the respondent would be detained in the prison of Rennes-Vezins and attached a description of the facilities in said prison, though did not directly address the questions set out in the prior request for additional information.

54. In his Judgment in Minister for Justice v Anghel [2020] IEHC 699, Burns J set out an exhaustive list of principles to be applied where an argument is made that surrender ought to be refused on Article 3 grounds relating to prison conditions in the requesting state as follows:

‘(a) the cornerstone of the Framework Decision is that member states, save in exceptional circumstances, are required to execute any European arrest warrant on the basis of the principles of mutual recognition and trust;

(b) a refusal to execute a European arrest warrant is intended to be an exception;

(c) one of the exceptions arises when there is a real or substantial risk of inhuman or degrading treatment contrary to Article 3 ECHR or Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’);

(d) the prohibition on surrender where there is a real or substantia risk of inhuman or degrading treatment is mandatory. The objectives of the Framework Decision cannot defeat an established risk of ill-treatment;

(e) the burden rests upon a respondent to adduce evidence capable of proving that there are substantial / reasonable grounds for believing that if he or she were returned to the requesting country, he or she will be exposed to a real risk of being subjected to treatment contrary to article 3 ECHR;

(f) the threshold which a respondent must meet in order to prevent extradition is not a low one. There is a default presumption that the requesting country will act in good faith and will respect the requested person’s fundamental rights;

(g) in examining whether there is a real risk, the Court should consider all of the material before it and if necessary, material obtained of its own motion;

(h) the Court may attach importance to reports of independent international human rights organisations or reports from government sources;

(i) the relevant time to consider the conditions in the requesting state is at the time of the hearing;

(j) when the personal space available to a detainee falls below 3m2 of floor space in multi occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 ECH arises. The burden of proof is then on the issuing state to rebut the presumption by demonstrating that there are factors capable of adequately compensating for the scarce allocation of personal space, and this presumption will normally be capable of being rebutted only if the following factors are cumulatively met;-

(1) the reductions in the required minimum space of 3m2 are short, occasional and minor

(2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-ofcell activities; and

(3) the detainee is confined to what is when viewed generally, an appropriate detention facility, and there are no aggravating aspects of the conditions of his detention;

(k) a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of confinement in the issuing member state cannot lead, in itself, to the refusal to execute a European arrest warrant. Whenever the existence of such a risk is identified, it is then necessary for the executing judicial authority to make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk;

(l) an assurance provided by the competent authorities of the issuing state that, irrespective or where he is detained, the person will not suffer inhumane degrading treatment is something which the executing state cannot disregard and the executing judicial authority, in view of the mutual trust which must exist between the members states on which the European arrest warrant is based, must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of article 3 ECHR or article 4 of the Charter; and

(m) It is only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that, notwithstanding such an assurance, there is a real risk of the person concerned being subjected to inhuman or degrading treatment because of the conditions of that person’s detention in the issuing member state’

55. The Applicant submits, on the basis of the guidelines summarised by Burns J.in Minister for Justice v Angel [2020] IEHC, that the Respondent has not discharged the burden that rests on him. The respondent exhibited general country of origin information but has not set out in his affidavit how these conditions apply to him.

Even if assurances have not been expressly given by the IJA does not mean the Respondent has discharged his burden, there is a default presumption that a requesting State will not act in a manner which will expose a respondent to inhuman and degrading treatment if surrendered and detained in that State.

56. Bearing in mind the principles of mutual trust and confidence which underlie the operation of the Framework Decision and the decision of the CJEU in Araynosi & Caldaru, this Court must adopt a two-stage approach when considering the objection to surrender in this case on the grounds of a risk of breach of fundamental rights.

57. Whilst the Respondent has raised some general concerns in relation to conditions in certain prison establishments in France, he has failed to discharge the burden which clearly rests upon him to show that if he is surrendered to France there is a real risk that he would be exposed to inhuman and degrading treatment if incarcerated there.

58. Following the filing of generalised Country of Origin information, the Court issued a s.

20 request in the terms indicated above. Whilst the French authorities have not specifically addressed each of the questions raised, they have indicated that if surrendered the Respondent will be detained in Rennes Vezins male prison. They have also provided information in relation to that prison. Following receipt of this information, the Respondent did not seek to adduce any evidence suggesting that there was any risk of a potential breach of Article 3 of the ECHR insofar as that institution was concerned.

59. I have considered the documents filed by the Respondent and nowhere therein is there any mention of this particular prison. The thrust of the COI largely concerns poor conditions in prisons, including overcrowding that might amount to a breach of Article

3 of the ECHR, in French overseas territories. There were also some adverse comments in relation to a number of named prisons in the South of France. And there was criticism of the failure of the French authorities to carry out works and improve conditions in those prisons. There is certainly no suggestion in the documentation provided that these conditions and such extreme overcrowding, such as might amount to a breach of Article 3, are endemic in the French prison estate.

60. Bearing in mind the principles of mutual trust and recognition and applying the two stage test as set out in Araynosi & Caldaru, adopting the principles set out so clearly by Burns J. in Anghel this is not a case where the Respondent has adduced precise information to show that there is a real risk that, if surrendered to France, he might be exposed to conditions that would result in a breach of his rights under Article 3 of the Convention. The documentation he has provided is generalised and relates largely to identified prisons in the French overseas territories and some institutions in the South of France. No evidence has been adduced to suggest the identified problems are systemic. There is nothing to suggest that any issues arise concerning the prison to which the authorities have indicated he will be likely sent.

61. I therefore dismiss this ground of objection.

Art. 8 Family and Personal Rights

62. The legal principles to be applied in assessing an objection to surrender on the basis of an alleged infringement of Article 8 family and personal rights, have been set out in cases such as Minister for Justice v Ostrowski [2013] 4 IR 206, Minister for Justice v Vesteratas [2020] IESC 12, Minister for Justice v D.E. [2021] IECA 188 and Minister for Justice v Palonka [2022] IESC 6. There is in reality no dispute between the parties as to the principles but rather to the application of the same to the particular facts and circumstances of this case.

63. The Respondent has objected to his surrender on the basis that surrender would be contrary to family rights pursuant to the Constitution, the ECHR and/or Charter of Fundamental Rights. According to his affidavit dated the 13 February 2025 he first came to Ireland in 2019. He says he has wife and 3-year-old daughter living within this jurisdiction.

64. The Applicant submits that the facts of this case do not meet the high threshold for the refusal of surrender on foot of such an objection. In Minister for Justice v Vestartas [2020] IESC 12 MacMenamin J stated:

“For an Article 8 defence to succeed, it can only be on clear facts based and cogent evidence. The evidence must be sufficient to rebut the presumption contained in s.4A of the Act (see, para. 41 above). The circumstances must be shown to be well outside the norm; that is, truly exceptional. In the words of s.37(1), they must be such as would render an order for surrender ‘incompatible’ with the State's obligations under Article 8 of the ECHR. This would necessitate that the incursion into the private and family rights referred to in Article 8(1) was such as to supervene the limitations on the right contained in Article 8(2), and over the significant public interest thresholds set by the 2003 Act itself.”

65. From the case law of the Superior Courts have set out the following principles apply when considering objections to surrender on such Article 8 grounds:- a. There is a strong public interest in the surrender of persons accused or convicted of criminal offences to countries with which this State has extradition or surrender agreements;

b. Disruption, indeed, significant disruption, of family and private life is the norm where surrender is ordered and this cannot ordinarily justify a refusal to surrender on foot of an otherwise lawful request;

c. The ultimate question in a case such as this is whether this is one of those truly exceptional cases (though of course exceptionality is not the test) where, due to the emergence of particular family or personal circumstances in the time since the alleged offences, Article 8 of the Convention is engaged and it would be disproportionate to order surrender in the particular circumstances of this case.

66. The sole information in this regard is set out paragraph 12 of the Respondents affidavit, dated the 13 February 2025, where he states that he lives in Dublin 5 with his wife and three year old daughter who attends a local creche.

67. There is no evidence in this case to support an Article 8 objection. There is nothing to suggest that that the surrender of the Respondent to France to serve a lawfully imposed three-year sentence would, in all the circumstances of this case, be disproportionate such as to engage the family and personal rights of the Respondent under the Convention.

68. This ground of objection is therefore dismissed.

69. Having dismissed each of the grounds of objection raised by the Respondent and being satisfied that the Warrant otherwise complies with the requirements of the 2003 Act and the Framework Decision, I will therefore make an order for the surrender of the Respondent to France.