User:Law Student 1996/sandbox

PAIR 98

Minister for Justice, Equality, and Law Reform v Gheorghe [2009 IESC 76 ] ; [2008 IEHC 115 ] was an Irish Supreme Court case in which the Supreme Court held that family rights will be disrupted in cases of extradition.

Background
The appellants in this case were Florin and Violeta Gheorghe. They were a husband and wife of Romanian nationality, who had lived in Ireland since 2000. Two European Arrest Warrants (EAW) were issued for their arrest in 2007, after the couple had been convicted and sentenced by the Romanian authorities in their absence on the 24th January 2005. These warrants alleged that between August 1999 and March 2000, the couple approached the Romanian courts so that they could obtain decisions relating to their possession of property, which did not belong to them. This property was then sold to a third party. In their affidavits, the appellants claimed that in August 2000, they obtained a visa from the British Embassy in Bucharest by falsely claiming that they were going to the United Kingdom for a vacation and intended to return to Romania. They then flew to London, before travelling to Belfast, and arriving in Dublin. In 2002, they were joined by their daughter of Romanian nationality. Their son and daughter were then born in 2004 and 2005 respectively, in Ireland.

Both appellants were convicted of two offences of "swindling" by the Romanian authorities, and received sentences of eight years and twelve years imprisonment respectively. Violeta was convicted of a third offence regarding the falsification of administrative documents, and was sentenced for a further two years imprisonment.

Holding of the High Court
As the facts underlining the two cases were similar, it was decided that the two applications could be judged together by Peart J in the High Court. He distinguished between Florin and Violeta when necessary in his judgment. The High Court rejected the objections of the appellants, and held that it was required to complete the order as set out by section 16 of the European Arrest Warrant Act, 2003 (the Act of 2003). Florin and Violeta chose to appeal this decision to the Supreme Court. They argued that the Supreme Court should overturn the judgment of the High Court and refuse their surrender.

Holding of the Supreme Court
Fennelly J delivered the written judgment for the Supreme Court. This was the only written judgment as the other judges; Denham J and MacMenamin J, agreed with his decision. Within this judgment, Fennelly J addressed the three bases of the appellant’s objections of the order of the High Court.

The Appellants did not 'flee' from Romania
The first base of appeal was that the appellants did not ‘flee’ from Romania, “as set out by 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)).” Within this argument, they depended on the decision from Minister for Justice Equality and Law Reform v Tobin [2008 4 IR 42 ]. Fennelly J differentiated the facts of this case from that of Tobin, as the appellants did not have permission or approval from the Romanian authorities to leave Romania. Thus, the Supreme Court held that the first base of appeal failed.

Fennelly J further dismissed this objection based on the question of whether either appellant was aware of the criminal proceedings being brought against them, before they left Romania. Violeta stated that while she was unaware of any particular accusations against her, she had been asked to answer questions from the public prosecutor’s office. Florin stated in his affidavit that he was unaware of any specific accusations against him. However, evidence was produced and received by the High Court, which brought doubt upon this affidavit. This evidence was a photocopy of a statement, signed by Florin, regarding the sale of property. This was the basis for the EAW. Florin had continued to state that he was unaware of any proceedings being brought against him by the Romanian authorities, but Fennelly J found the credibility of the appellant to be lacking because of how he obtained his visa from the British embassy; and evidence that the affidavits had been copied. Moreover, Fennelly J held that is was clear that Violeta had knowledge of the proceedings occurring in Romania and as the two appellants lived together as a family, it was likely that Florin was also made aware of these accusations. Therefore, the Supreme Court rejected the first base of appeal.

Section 45 of the Act of 2003
The second base of appeal was that the requirements under section 45 of the Act of 2003 had been disregarded, as the appellants had been tried in their absence; with a lack of notification regarding the time and location of their trial; and that the Romanian authorities had not provided sufficient evidence that they would be granted a retrial for the offences that they had been sentenced to, following their surrender under the EAW. Fennelly J held that while there was a lack of notification regarding the time and location of their trial, there was sufficient evidence that they would be granted a retrial, following their extradition. This was because of the translated document, which was provided by the Romanian Justice Ministry. This document promised that the appellants would be granted a retrial following their extradition to Romania. The Supreme Court found this to be sufficient and thus, rejected the second base of appeal.

Article 41 of the Constitution and Article 8 of the European Convention on Human Rights
The third base of appeal was that the surrender and extradition of the appellants to Romania would interfere with their rights under Article 41 of the Irish Constitution and Article 8 of the European Convention on Human Rights. They argued that this wass because they lived with their children, who were born in Ireland. Fennelly J rejected this base of appeal, stating that, “it is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the system of the European arrest warrant, that persons sought for prosecution in another state will very often suffer disruption of their personal and family life.” Hence, the third base of appeal was dismissed.

Conclusion
Therefore, the Supreme Court dismissed the appeal and affirmed the order of the High Court.

Background
The appellant in this case was James Kenny. On the 12th April 1999, Trinity College applied for planning permission for a new project; the development of buildings, which would include three new residences for students and other facilities. Trinity College planned to build this development at Trinity Hall, Dartry. Kenny lived opposite one of these buildings. Dublin Corporation, which is now known as Dublin City Council (the Council), decided to grant planning permission to Trinity College for this development, dependent on fourteen conditions. Kenny opposed this decision and appealed to An Bórd Pleanála. An Bórd Pleanála chose to grant planning permission for this development, dependent on nineteen conditions. Kenny has since opposed this decision by An Bórd Pleanála, and the development of these buildings by Trinity College, despite the completion of the project.

According to specific conditions of the planning permission, Trinity College was obliged to submit necessary materials to the Council for agreement. Trinity College’s architects presented a planning compliance submission to the Council in August 2001. In November 2001, a later addendum was submitted to the Council. On the 4th January 2002, the Council decided that the compliance submissions were suitable and compliant with the necessary conditions of the planning permission. Kenny chose to appeal this decision through the application for judicial review, which was granted to him by a ‘leave order’ from the High Court, by O’Caoimh J, on the 4th July 2002. In this application, Kenny stated that the Council permitted significant alterations to the planned development that were outside of the conditions enclosed in the planning permission.

This application for judicial review was rejected in the High Court by Murphy J, in his judgment on the 8th September 2004. The High Court held this decision because of Kenny’s delay in applying for judicial review, and that the decision of the Council to accept alterations was within the purview of the conditions contained in the planning permission. Kenny chose to appeal this decision to the Supreme Court, arguing against the High Court decision in regards to the delay in application for judicial review, and the Council’s actions within the conditions of the planning permission.

Holding of the Supreme Court
Fennelly J delivered the written judgment for the Supreme Court. This was the only written judgment as the other judges; Macken J, and Peart J, concurred with his judgment. Fennelly J began this judgment by highlighting that planning permission was to be interpreted through objective criteria, rather than subjective criteria. The Supreme Court held that this was because the development of buildings were rarely completely compliant with the planning permission; small details may be altered throughout the development. Nevertheless, the Supreme Court noted that this objective interpretation was not similar to literal interpretation. This is because while objective interpretation did eliminate interpretation through subjective criteria by the appellant, it did cause Fennelly J to examine the purpose surrounding each condition that Kenny mentioned in his application.

Planning Permission Conditions
The conditions that Kenny referenced in his application were the removal of the first floor; the placement of boilers and boiler rooms in roof spaces; the permission to increase the number of bed spaces; and the establishment of services and utilities within ten metres of the bole of trees.

The first of these conditions required that the height of one of the buildings be decreased through the removal of the first floor for, “the interest of visual amenity.” Another floor was chosen to be removed as the first floor had a design feature which intended to “avoid flat façade monotony.” The design feature also allowed the building to imitate the designs of the historical buildings on Trinity College campus. The Council agreed to this decision as the removal of another floor, other than the first floor, resulted in the reduction of the height of the building. The Supreme Court held that the literal interpretation of the condition was unnecessary as the objective of the condition was achieved because the height of the building was reduced, despite the removal of a floor other than the first floor.

The second of these conditions stated that boilers and boilers spaces had been located in the roof spaces of two buildings. Kenny argued that the plans from 1999 did not include boilers and boilers spaces in the roof spaces, and so there was no planning permission granted for such installation. Trinity College argued that the location of boilers and boiler spaces in the roof spaces was compliant with the planning permission conditions. This is because planning permission was granted to the installation of plant rooms in the roof spaces. Hence, the installation of boilers in these plant rooms would not affect the planning permission. The Supreme Court upheld the judgment of McKechnie J in Kenny v An Bórd Pleanála [2001 1 IR 565 ], which dealt with the issue of the boilers and boiler spaces within a different legal context. Therefore, the Supreme Court held that Kenny’s argument was invalid because the installation of the boilers in these plant rooms in the roof spaces would not affect the planning permission.

The third of these conditions concerned the increase of bed spaces in one of the buildings from 308 to 324. Fennelly J noted that this decision to increase the numbers of bed spaces did not affect the design or construction of the development. He also observed how the decision made by An Bórd Pleanála only referred to the overall number of bedrooms in the development, and not the number of bedrooms per individual building. While there were changes in the internal designs of the buildings, as seen by the removal of a floor and the location of the boilers and boiler spaces to the roof spaces, there was no increase in the total number of bed spaces in the development. The Supreme Court held that these minor alterations regarding the numbers and locations of bed spaces were in compliance with the planning permission as they resulted from other alterations to the development.

The fourth of these conditions was the establishment of services and utilities within ten metres of the trees. Kenny argued that Trinity College had violated this condition in the case of sixteen out of 275 trees. This is because there were services and utilities within ten metres of the trees prior to the development of the new buildings. Additionally, the services and utilities were established close to buildings, and so it would not have been possible to offer these services while complying with the ten metre distance of the trees. The Supreme Court held that while there was evidence of this violation of this condition, it was a minor violation as it occurred in the case of sixteen out of 275 trees.

Delay for Application for Judicial Review
The Supreme Court examined the specific circumstances surrounding the application for judicial review in this case. This was because the Council’s decision regarding the compliance submissions was made on the 4th January 2002, and the leave order was granted on the 4th July 2002. Hence, the application for judicial review was made two days before the end of the six month waiting period, as set out in the Planning and Development (Strategic Infrastructure) Act 2006, before the introduction of amendments to section 50, pertaining to judicial review. The Supreme Court held this to be a failure to apply promptly for judicial review. Fennelly J stated that the appellant was aware of the development at Trinity College because of his past history with opposing this development; a threat to apply for judicial review; and that his residence is opposite on the buildings that was being developed at the time in question.

Conclusion
Therefore, the Supreme Court dismissed the appeal and affirmed the order of the High Court.