The High Court has ruled that an unconvicted person sought for surrender under a European Arrest Warrant benefits from an effective presumption in favour of bail. The State can rebut that presumption by showing a likelihood that the person will evade justice, the court said.
Mr Justice Edwards gave the ruling in a reserved judgment on 6 April 2011, after the court had already admitted Tiberius Fustiac to bail subject to conditions. The judgment explains the legal basis for that decision; it does not decide whether Fustiac should ultimately be surrendered to Romania.
Romanian authorities seek Fustiac for trial on two alleged offences described in the warrant as trafficking in human beings and trafficking in minors. He has not been convicted of those allegations. The court said the warrant appeared, provisionally, to meet the statutory threshold under which correspondence between the alleged offences and Irish offences need not be demonstrated, subject to arguments at the later surrender hearing. It also gave a provisional view that the allegations could correspond to offences under Irish law.
The bail application followed Fustiac’s arrest on 21 March 2011. The State opposed bail, citing the seriousness of the allegations, the potential for a lengthy sentence if convicted, and concerns that travel-document conditions could be evaded using false documents. Fustiac’s solicitor’s affidavit described his family and community ties in County Wexford, his long residence in Ireland, and his continued presence despite knowing of the Romanian allegations and warrant. The court noted that the affidavit was sworn by the solicitor rather than Fustiac, and said it would overlook that irregularity in the circumstances while advising that bail affidavits should ordinarily be sworn personally by applicants.
To resolve the legal issue, Mr Justice Edwards considered earlier decisions concerning bail in extradition and European Arrest Warrant cases. He held that the Supreme Court’s decision in Gilliland applied the O’Callaghan approach to unconvicted people facing rendition under the 2003 Act. He said an earlier High Court decision, Ostrovskij, should be treated as per incuriam because it did not appear to account for Gilliland; a later decision, Vojik, had followed Gilliland.
Applying that test, the judge found the evidence showed a risk of absconding at the level of possibility, not probability. Fustiac had lived openly in Ireland for nearly ten years, had not hidden after learning of the allegations and warrant, and there was no evidence he had possessed false identity or travel documents. The judge acknowledged the Gardaí’s concern about false documents but described it as theoretical on the evidence relating to Fustiac. He concluded that the presumption in favour of bail had not been rebutted and confirmed that bail had been granted subject to conditions. The judgment does not set out those conditions.