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Cite as:  IESC 76
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Judgment Title: Minister for Justice Equality and Law Reform -v- Gheorghe & anor
Neutral Citation:  IESC 76
Supreme Court Record Number: 121 & 122/08
High Court Record Number: 2007 125 EXT
Date of Delivery: 18/11/2009
Court: Supreme Court
Composition of Court: Denham J., Fennelly J. MacMenamin J.
Judgment by: Fennelly J.
Status of Judgment: Approved
THE SUPREME COURT
Record No: 121/08
Record No. 122/08
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
VIOLETA CORINA GHEORGHE
1. This judgment deals with both of the appeals brought by the above-named appellants against the single judgment of Peart J. dated the 9th April 2008  IEHC 115 and High Court orders that each of the appellants be delivered to the judicial authorities of Romania pursuant to section 16 of the European Arrest Warrant Act, 2003.
2. The appellants are husband and wife, of Romanian nationality and have been living in Ireland since the year 2000. Their surrender is sought by a Romanian judicial authority to serve sentences imposed upon them in their absence in 2005.
3. Two European arrest warrants were issued by a judicial authority in Romania on 17th January 2007. They were endorsed by the High Court for execution on 25th July 2007. The appellants were arrested on the 9th and 14th of November 2007 respectively. They were brought before the High Court pursuant to the European Arrest Warrant Act, 2003 and remanded from time to time pending the hearing of the applications for their surrender and their own objections.
4. The High Court (Peart J.) disallowed their objections and made orders for their surrender. Each of the appellants argues, in these appeals, that the judgment of the High Court should be set aside and that their surrender to the judicial authorities of Romania be refused. They make the following three points:
1. they had not “fled” from Romania within the meaning of section 10 of the Act of 2003, as amended, and the Framework Decision (Council Framework Decision of 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA)); they rely on the decision of this court in Minister for Justice Equality and Law Reform v Tobin  4 IR 42;
2. that the requirements of section 45 of the Act of 2003 had not been complied with, insofar as they had been tried in their absence: they had not been notified of the time and place where they would be tried; there was no sufficient undertaking from the issuing judicial authority that they would be retried, following surrender, for the offences of which they were convicted;
3. their surrender would contravene their private and family rights pursuant to Article 41 of the Constitution and Article 8 of the European Convention on Human Rights: they reside in Ireland as a family with their children, two of whom are Irish born.
5. In order to appreciate these points, it is necessary to summarise the facts as they appear from the two European arrest warrants and the affidavits filed in the High Court. Both appellants were convicted and sentenced on 24th January 2005. Both appellants were convicted of two offences under Romanian law of two offences described in the translation of the warrants as “swindling concerning contracts.” They each received sentences of twelve years and eight years imprisonment. The second-named appellant was convicted of the additional offence of forgery of administrative documents in an aggravated form for which she received a sentence of two years imprisonment. The sentences were merged into the longest sentence of twelve years. The sentences were subjected to review through an appeal process and were confirmed. A warrant for execution of the custodial sentence was issued in each case on 24th January 2005 by the Bucharest Court of Appeal, 1st Penal Section.
6. The description of the “swindling” offences contained in the warrants alleges that between August 1999 and March 2000 both appellants, acting together, engaged in complex fraudulent activities consisting of initiating “by the help of and in the name of other people some civil actions by which they requested the pronouncement of some judicial decisions confirming the sale -- purchase of some lands that were owned in fact by other people.” It is alleged that the respondents obtained a power of attorney, based on which they approached a number of administrative authorities, 'the court included, with the object of procuring a false judicial decision of their ownership of a building which was then sold to an injured party called Coca Radu, who is alleged to have paid substantial sums to the appellants. It is stated that the appellants acted similarly with regard to 3 other buildings situated in Bucharest. The details of these activities including various acts of deception and falsification of documents are set out at some length in the warrants. They include the allegedly dishonest involvement at several points of a named judge.
7. The appellants left Romania in August 2000. The first named appellant swore, in his first affidavit, that prior to his departure from Romania, he had never been questioned or informed of any accusations against him and that he was unaware of any criminal investigation into his activities. He denied the allegations, protested his innocence and said that he had an unblemished character with no previous convictions. The second-named appellant swore that, prior to leaving Romania, she had never been informed of any accusations against her. She accepted, however, that she had been contacted on one occasion in the spring of 2000 and asked to attend the public prosecutor’s office to answer questions. She says that these questions related to what she had seen and heard and carried out on behalf of the judge, mentioned above, for whom she had been working for a period of time. At no time, she swore, was she informed that there were any allegations of impropriety or criminality made against her.
8. The appellants agreed on the account of the circumstances of their leaving Romania. The first named appellant had worked as a gardener and as an odd job or handyman. In the summer of 2000, both appellants were out of work and decided to leave Romania to make a new life elsewhere. They attended at the British Embassy in Bucharest for the purpose of obtaining a visa. They stated—falsely—that they were going on holiday and would be returning to Romania. The visa was duly granted. They left Romania together by plane to London on 22nd August 2000. They then travelled by bus and coach to Belfast and from there to Dublin by taxi.
9. On arrival in Dublin, they attended the Refugee Application Centre and made application for Refugee Status. They have provided no further details of their refugee application.
10. They were joined in Ireland in April 2002 by their Romanian-born daughter. A son and a daughter respectively were born to them in Ireland in 2004 and 2005. Their children attend school in Ireland. They say that they and their family are fully integrated in Ireland and that they have been granted legal status here.
11. Both appellants swore that they were unaware of their impending trial in Romania. Very curiously, the affidavit of the first named appellant (the husband) contains the following: “I say that in 2002 my husband (sic) was contacted by his mother who informed him that she had discovered from a court letter that we had been convicted of an offence and sentenced to 12 years…” (emphasis added). This statement also appears, more appropriately, in the affidavit of the second named appellant. These references by the first named appellant to himself as “my husband” obviously represent a simple copying of one affidavit into another but cast at least some doubt on the reliability of the affidavits.
12. In respect of the issue of notice, the arrest warrant says that the first named defendant was personally summoned at all his known addresses and by display in the City Hall of the date and place of the proposed hearing and that he failed to appear at any hearings. In respect of the second-named appellant it is stated that she had been summoned in person regarding the date and place of the hearing and was present at the first hearing but that she thereafter “eluded” the court and did not attend any other hearing. In both cases conviction and sentence were pronounced in absentia.
13. The arrest warrants contain an account of the provisions of Romanian law regarding retrial of persons tried in absentia and returned to Romania following extradition. In response to the complaint of insufficiency of the undertaking for the purposes of section 45 of the Act of 2003, the Romanian authorities provided a copy letter, exhibited in an affidavit, referring to a provision of the Romanian Criminal Procedure Code to the effect that, in case of extradition of a person tried in his or her absence, “the case may be retried by the court which tried at first instance, at the request of the sentenced person.” A further document has been produced to this court immediately before the hearing of the appeals containing an undertaking guaranteeing a retrial of the appellants, if surrendered, in accordance with Romanian criminal procedure. This is relevant to the second argument on the appeal.
14. The Romanian judicial authorities, in response to the denials of the appellants, furnished to the Central Authority in this jurisdiction two documents appearing to show that each of the appellants was interviewed by the public prosecutor’s office regarding the transactions which form the material for the arrest warrants. According to the signed statement dated March 2000, attributed to him, the first named defendant appears to have had dealings with Mr Coca Radu, the person to whom a property is alleged to have been fraudulently sold. A signed statement is also attributed to the second-named appellant in which she refers to a “criminal complaint filed by Mr Coca Radu against me and my husband.” According to the affidavit of a translator filed on behalf of the appellants, this should read “complaint.” The word “criminal” does not appear in the original Romanian version.
15. The first named appellant, in a replying affidavit, swore that the typed document purporting to be his statement was not made by him, that the signature was not his that he had never been questioned in relation to these matters by anyone in Romania and had never made a statement. The second-named defendant does not deny the authenticity of the document attributed to her. She says that it was made by her when she was “called to speak to a prosecutor in the spring of 2000.” She says that she was questioned in relation to the conduct of the judge mentioned above and others who worked for her. In effect, she denies that she was aware of any investigation of a criminal nature. The first named appellant does not say whether he was aware that his wife was interviewed by the prosecutor.
16. Peart J. rejected the submission that the appellants had not “fled” from Romania. In doing so, he distinguished the Tobin case, saying that the facts did not “go anywhere near the state of proof found to exist in the Tobin case” where there was very clear evidence that the respondent… was entitled under the laws applicable in Hungary to depart that country when he did. He also held, on reconsideration of the view he had expressed in Tobin, that it was not necessary for the application of section 10 that the sentences should have to have been imposed on the appellants before they left Romania. Having reviewed the warrants and the affidavits he held that the appellants had failed to discharge the onus of proof which rested upon them. He referred in particular to the statements furnished by the Romanian authorities and allegedly made by each of the appellants to the prosecutor.
17. With regard to the argument based on section 45, the learned judge, in reliance on the statements in the warrants, held that the appellants were not entitled to contest that they had been notified of the time and place of their trial. Hence, no undertaking was required pursuant to this section. Alternatively, he held, also in reliance upon the warrants, that it is clear that the respondents were entitled to apply for a retrial upon surrender and that it was to be presumed that an opportunity for doing so would be afforded to them.
18. The learned trial judge rejected summarily and in limine the argument based on family rights. No authority had been put forward in support of this claim and he concluded: “It is nowhere contemplated that such circumstances could prevent an order of surrender or extradition being made.”
The argument that the appellants did not “flee” from Romania
20. The suggestion that, in order for a person to be surrendered to an issuing state to serve a sentence imposed upon him, that sentence must have been imposed prior to his leaving that state arises from a comment made obiter by Peart J in the Tobin case. Without deciding the question finally, I expressed doubt in my judgment in the same case as to whether this view was correct. It appeared to me then, and still appears to me, that it suffices for the sentence to have been imposed at the time when the surrender of the person is sought. Section 10 of the act of 2003, as amended by section 71 of the Criminal Justice (Terrorist Offences) Act, 2005 applies, inter-alia, to a person "on whom a sentence of imprisonment…… has been imposed…… and who fled from the issuing state before he or she…… commenced serving that sentence…” In the present case both appellants left Romania in August 2000. The sentences were imposed in 2005. Thus they left Romania before they had commenced serving the sentences. Nothing in the section requires that the sentence have been imposed prior to the person leaving the issuing state. Such an interpretation would not be in accordance either with common sense or with the purpose of the European arrest warrant system. Subparagraph (a) applies where the state “intends to bring proceedings” against a person; subparagraph (b) applies where the person is “the subject of proceedings;” subparagraph (c) applies where a person “has been convicted… but not yet sentenced…” The interpretation advanced by the appellants would leave an obvious and pointless gap.
21. Nonetheless, the appellants contend that, on the evidence, they did not “flee” when they left Romania in August 2000. I can say at once that the facts of these cases in no way resemble those in Tobin, where a criminal prosecution had been commenced in Hungary. The respondent obtained the leave of the Hungarian court to leave the jurisdiction pursuant to an explicit provision of Hungarian law. In accordance with that procedure, orders were made by the responsible court and his passport was released to him. He also he made a substantial deposit in Hungarian currency. Nothing of the sort occurred in the present case. The appellants do not claim to have sought any form of approval from the Romanian authorities.
22. Nonetheless, it remains necessary to decide whether, on the facts of this case the appellants “fled.” In my judgment in Tobin, with which the other members of the Court agreed, I said at page 72:
“Fleeing necessarily implies escape, haste, evasion, the notion of moving away from a pursuer."
23. In the circumstances of the present case, everything seems to depend on whether each appellant was aware that there was a criminal investigation afoot involving him or her. If an appellant knew that he or she was the subject matter of such enquiries, I would have no doubt that the act of leaving the jurisdiction of Romania without some form of official approval would amount to flight. As was stated by Murray C.J. in Minister for Justice Equality and Law Reform v Sliczynski  IESC 73, expressing his agreement with the judgment of Macken J in that case, “the Courts must also look at the objective circumstances in which a person such as the appellant left the country in question.” Macken J discussed the correct approach to assessment of evidence on the issue as follows:
“All of the factors germane to whether a person can be said to have fled must be taken into account. That includes the motivation of the person sought to be returned to the requesting Member State, which is almost inevitably likely to be a subjective motivation. So also the court must take into account other material factors, such as whether the sentence was suspended, and where the suspension of the sentence was subject to terms, whether those terms were known to the convicted person and whether those terms were complied with…… The court then must determine whether, objectively speaking, bearing in mind all of these factors, it can be reasonably concluded that the appellant “fled” within the meaning of the subjection. If it were the case that the subjective motivation, as averred to on affidavit, had to be accepted as being conclusive of the question whether a person fled within the meaning of the section, it seems to me that this would always or almost always “trump” any information or material factor presented to the Court and upon which it could be objectively found that a person had fled the requesting state.”
Each appellant has been at pains, on affidavit, to distance him or herself from knowledge of or involvement in any criminal investigation. Whether or not the appellants fled Romania thus resolves itself into a question of fact. The key question in each case is whether the person was aware of the criminal investigation proceeding in Romania.
24. Section 10 of the Act of 2003, as substituted by section 71 of the Criminal Justice (Terrorist Offences) Act, 2005, provides:
10.—Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—
(a) against whom that state intends to bring proceedings for an offence, to which the European arrest warrant relates,
(b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,
(c) who has been convicted of, but not yet sentenced in respect of, an offence to which the European arrest warrant relates, or
(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she—
(i) commenced serving that sentence, or
(ii) completed serving that sentence,
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.”
It may be noted that section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 2009 has deleted (with future effect) the words in subparagraph (d) commencing with “and who fled…”
25. Subject to compliance with its terms, this section imposes an obligation to make the order for surrender. That surrender is to take place in accordance, in particular, with the Framework Decision. It is fundamental to the scheme of the Framework Decision that the European arrest warrant is a judicial decision issued by a Member State and that its execution falls to the courts of the executing Member State so that decisions on execution “must be subject to sufficient controls…”(Recital 8). Other Member States are obliged to execute it “on the basis of the principle of mutual recognition…” (Article 1 of the Framework Decision). That principle is regarded by the European Council as “the ‘cornerstone’ of judicial cooperation.” (Recital 6). Thus, the balance is to be struck on the basis of a “system of surrender between judicial authorities…” (Recital 5). These principles must be borne in mind when assessing the evidence regarding the circumstances in which the appellants left Romania. (see also the judgment of Murray C.J. in Minister for Justice Equality and Law Reform v Sliczynski, cited above.)
26. Section 20 of the Act of 2003, as amended by section 78 of the Act of 2005 enables either the High Court or the Central Authority, as the case may be, to require the issuing judicial authority to provide additional documentation or information to enable the Court to perform its functions. That facility has been used in this case. The Central Authority (the Minister) has obtained additional information from the Romanian judicial authority, the Bucharest Court of Appeal, via the Directorate of International Law and Treaties of the Ministry of Justice, regarding the conduct of the criminal investigation in Romania and, in particular, the questioning of the appellants. Macken J, in her judgment in Minister for Justice Equality and Law Reform v Sliczynski, cited above, examined the mechanism for obtaining further information pursuant to section 20, subsections (1) and (2). She summarised their effect as follows:
“In the relationship which may exist between the High Court and/or the respondent pursuant to s.20 of the Act of 2003 and the issuing judicial authority, exchanges such as those in the present case are, in my view, to be considered as operating on the same high level of confidence and mutual trust [as explained by Murray C.J. in his judgment in Minister for Justice Equality and Law Reform v Altaravicius  3 IR 148] since these exchanges between the judicial authorities constitute an integral part of the overall scheme of the European Arrest Warrant. This must have as a consequence that when an issuing judicial authority is asked for additional information pursuant to either of the aforesaid subsections of s.20, the exchanges must be accorded the appropriate mutual respect. In consequence, it may be assumed that a reply furnished by the judicial authority of the requesting Member State has been fully and properly prepared by an appropriate responsible person, and will include true and accurate responses to the information or documentation sought.
27. In pursuance of section 20, the High Court was provided with a photocopy of a statement said to have been made by the first named appellant at the public prosecutor’s office on 20th March 2000 and signed by him. The document bears the stamp of the Public Prosecutor’s Office. The contents of this statement, if true, show that the first named appellant was being interviewed about the property transactions which later formed the subject matter of the prosecution. In particular it gives an account of dealings between him and Mr Coca Radu, elsewhere described as the complainant. The second-named appellant accepts the genuineness of the statement signed by her, dated 11th April 2000. She agrees that she attended at the public prosecutor’s office and that she made the statement. That also gives an account of dealings with Mr Coca Radu. We have an affidavit saying that the expression “criminal complaint” is a mistranslation, and that the word “criminal” does not appear in the original. Nonetheless, the statement acknowledges that Mr Radu had made a complaint against her and makes reference to a number of financial transactions before concluding with a charge that Mr Radu had made the complaint out of “feelings of hatred and revenge…” The statement also describes the first named appellant as having acted as an intermediary.
28. The absolute denial by the first named appellant of any knowledge whatever of the criminal investigation and his repudiation of the written statement attributed to him can only mean that the Romanian judicial authorities have knowingly provided the High Court with a forged and fraudulent document. According to Recital 10 to the Framework Decision, “the mechanism of the European arrest warrant is based on a high level of confidence between Member States.” It would require very clear evidence to show that an issuing judicial authority had behaved in the dishonest manner that is implicitly alleged. The case of the second-named appellant is even simpler. It is quite clear that she was the subject of enquiries by the public prosecutor concerning the land transactions which formed the basis of the prosecution. From that statement it appears that her husband was, in some manner, involved in those transactions. The first named appellant has not said whether he was aware of the investigation in which his wife was involved. It is clear that both appellants were, at the relevant times, living together as a family in Bucharest. It seems likely that the first named appellant knew that his wife was questioned and about what subject-matter.
29. I would add that the credibility of both appellants must be in serious doubt by reason of the blatantly untruthful means by which they obtained visitor’s visas to go to the United Kingdom.
30. In short, I am satisfied that the learned High Court judge was quite correct in rejecting the submission that the appellants had not “fled” Romania. The first ground of appeal, therefore, fails.
Section 45: the undertaking regarding a retrial
31. In order to consider the second ground, it is necessary to set out the terms of section 45 of the Act of 2003, which deals with cases, such as the present, of conviction in absentia. It provides as follows:
45.—A person shall not be surrendered under this Act if—
(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and
(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or
(ii) he or she was not permitted to attend the trial in respect of the offence concerned,
unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered—
(i) be retried for that offence or be given the opportunity of a retrial in respect of that offence,
(ii) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and
(iii) be permitted to be present when any such retrial takes place.
32. This section applies to the appellants, insofar as they were convicted when they were not present at their trial. This is not in issue. Furthermore, if they or either of them was not notified of the time and place of the trial, they cannot be surrendered unless the relevant undertaking has been given by the issuing judicial authority.
33. The arrest warrant states that the first named appellant “was personally summoned at all his known addresses and by display at the first district City Hall and 5th District City Hall…” The arrest warrant in her case states that the second-named appellant “has been summoned in person of the date and place of the hearing and was present at the first hearing…”
34. I do not think that, in either case, there is sufficient evidence of notification of the time and date of trial. In the first case, no personal service is alleged. In the second case, the position is more ambiguous. There is an allegation that she was present at the first hearing, but this hardly seems possible, since she had left Romania in August 2000, well before the trial began. It is established that the section envisages personal notice. It employs the word “notified”. In Minister for Justice Equality and Law Reform v Sliczynski  IESC 73, Murray C.J. stated:
“The ordinary meaning of that language is that it is the person to be tried who must be notified. It must be actual notification and not any other notification.”
35. I do not think that, looking at the evidence in this case, either appellant was personally notified of the date and place of the trial. Accordingly, the question arises whether the issuing judicial authority has given an undertaking in writing that each of the appellants will, “upon being surrendered… be retried for that offence or be given an opportunity of a retrial…”
36. The matter proceeded in the High Court on foot of a letter provided by the Romanian Justice Ministry to the effect that, according to article 522 of the Romanian Criminal Procedure Code: “in case the extradition of a person tried and convicted in his/her absence is required, the case may be retried by the court which tried at first instance, at the request of the sentence to person.” The letter proceeded to say that the “sentenced persons may address a formal request to the Romanian court -- Bucharest court of appeal for the retrial of their cases after they arrive in Romania……” The High Court ruled that the existence of these provisions satisfied the requirement of section 45. The learned judge told that it was to be “presumed by this court that showed the respondent's wish to apply for a retrial upon surrender, an opportunity for doing so would be afforded them in accordance with article 522…”
37. I do not think that the existence of a provision for a retrial in the law of the issuing state constitutes an undertaking in writing to satisfy this section. The first is an objective provision of law; the second—which is what the section requires—is a voluntary act or statement.
38. This matter took on a different aspect at the outset of the appeal. The Romanian Justice Ministry provided a written document (in translation) from the Appellate Court Bucharest – 1 Criminal Department Criminal Enforcement Office. In its quality as the issuing judicial authority, that court stated as follows:
“[It] guarantees that after the extradition of the respective persons:
1. They will be retried by this court on demand according to the provisions of the article 522 from the criminal procedure code. In this case the provisions of the article 405 -- 408 from the criminal procedure code are correspondingly applied, without that the retry [sic] would be conditioned by the provisions of the article 394 from the criminal procedure code regarding the review of the trial
2. according to the Romanian criminal procedure code, on the occasion of the retrial they would be guaranteed the right to defence, informed regarding the time and place where the retrial of the case will take place and
3. will be allowed to be present when such a retrial takes place.”
39. This new document was accepted as the basis of the current position as expressed by the Romanian judicial authority. It was not argued that the matter should be remitted to the High Court. Even if that course might appear technically more correct, it would further delay proceeding, in itself an undesirable feature in cases concerning surrender pursuant to the Act of 2003.
40. Counsel for the appellants submitted that even the new document did not comply with the requirements of the section insofar as it did not effectively provide an undertaking that there would be a completely new trial. In written submissions, it was argued that Article 394 of the Romanian Code of Criminal Procedure provided for retrial only in specified circumstances. These include, according to an affidavit from a Romanian lawyer, discovery of new facts, of perjury by a witness, that a document has been declared false, commission of an offence by a judge or irreconcilable judgments. This argument would appear, however, to have been overtaken by the terms of the new undertaking of 9th October 2009, which states that the conditions for retrial contained in Article 394 would not apply.
41. Ultimately, the question became whether that undertaking provided in a sufficiently unqualified way for a retrial upon surrender of the appellants to Romania. Counsel cited, in particular, the dictum of Murray CJ in the case of Minister for Justice Equality and Law Reform v Marek (ex tempore judgment of the Supreme Court delivered 5th February 2009:
“The undertaking, as I have stated, relates to a re-trial. That is what the provision of our Act says and a re-trial in the ordinary and natural meaning refers to a trial de novo, that is to say, a trial of the accused as if he was on trial for the first time for the offence or offences in question.”
42. The appellants are concerned with the possibility that, on a retrial, it might be possible for the prosecution to rely upon evidence that had been used in the first trial and that, if so, that would not be a genuine retrial. The arrest warrant, in each case, refers to Article 405, of the Code of Penal Procedure, which provides:
1. The retrial of the cause after the admission in principle of the request for review is carried out according to the procedure rooms concerning the trial in the first instance.
2. The court, if it considers necessary, uses again the evidence that was prepared during the first trial or upon admitting in principle the request for review.
43. It is submitted that the procedure envisaged by the second paragraph of this provision would not amount to a retrial in the sense of the statement of the Chief Justice in the Marek case. That case was, however, decided in the light of a particular provision of the Code of Criminal Procedure of the Czech Republic in the following terms (as translated):
“but that if the defendant so demands new evidence shall be admitted to the court which had not been presented in previous proceedings whose character can allow it or which cannot be prevented by other relevant matters otherwise the statements of evidence would be read to the accused and he will have the possibility to comment on them.”
44. In the Marek case, this Court was concerned at the effectiveness of the claimed retrial. The Chief Justice commented: “simply reading statements of evidence rather than hearing witnesses does not suggest a retrial.” I would add that the quoted restrictions on the right of the defence to introduce evidence would equally undermine the genuineness of the retrial.
45. It is important to recall that what section 45 requires is that the person surrendered should have the benefit of an undertaking that he or she will be retried for the offence of which he or she has been convicted in absentia. It is axiomatic that the retrial will take place in accordance with the rules of criminal law and procedure of the issuing state. The statement of the Chief Justice upon which reliance is placed should not be read, in itself, as if it were a section of the statute. Clearly, the Chief Justice did not intend to add words to the statute. The notion that the retrial should take place as if he was on trial for the first time for the offence or offences in question could not mean that the first trial had been obliterated from history. Even in our law, there are circumstances in which the evidence at a previous trial may be referred to. The provision of article 405.2 to the effect that the prosecution may use again evidence that was “prepared during the first trial” does not take away the character of a retrial.
46. It would, of course, be a serious matter if the judicial authority of an issuing state were to dishonour its solemn undertaking that there would be a retrial. I can find nothing in the terms of the undertaking proffered to suggest that this will happen.
47. Section 45 reflects the provision of article 5.1 of the Framework Decision, which provides that surrender for the execution of a sentence imposed in absentia may be made subject to a condition that the issuing judicial authority give an assurance guaranteeing an opportunity to apply for a retrial. I would add that, section 4A of the Act of 2003 as inserted by the act of 2005 provides:
4A.—It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown.”
It may be that Peart J had this provision in mind when presuming that the appellants would be offered the opportunity for a retrial. I do not accept that the undertaking proffered by the Romanian judicial authority is inadequate for the purpose of section 45. I would dismiss the second ground of appeal.
Article 41 of the Constitution; Article 8 of the European Convention on Human Rights
49. I would dismiss the appeal and affirm the order of the High Court.