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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice v Okojie (Approved) [2025] IEHC 329 (03 June 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC329.html
Cite as: [2025] IEHC 329

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THE HIGH COURT

[2025] IEHC 329

[2024 No. 254 EXT]

BETWEEN:

MINISTER FOR JUSTICE

APPLICANT

AND

 

DAVID OKOJIE

RESPONDENT

JUDGMENT of Mr Justice Patrick McGrath delivered on the 3 June 2025

1.      BACKGROUND

1.1    The applicant seeks an order for the surrender of the respondent to the Republic of Italy on foot of a European Arrest Warrant dated the 9 December 2024 ("the EAW"). This EAW was issued by Paulo Stupino, Deputy Public Prosecutor at the Public Prosecutor's Office in Turin, as an issuing judicial authority ['IJA'].

 

1.2    The domestic decision on which the EAW is based is an Order for the Enforcement of Imprisonment issued on the 16 May 2024 by the said Prosecutor's office. This follows on from a judgment delivered by the Ordinary Court of Turin on the 11 January 2006, which was upheld by the Court of Appeal in Turin on the 16 September 2022.

 

1.3    The surrender of the Respondent is sought to serve a custodial sentence of 1 year, four months and 1 day in prison. This is the remainder of the originally imposed sentence of 4 years and 8 months, together with a fine of €24,000.

 

1.4    Mr Okojie was arrested on foot of an SIS Alert and brought before this Court on the 6 December 2024. The EAW was produced before the Court on the 17 December 2024. The Respondent has been remanded on bail pending the determination of these proceedings.

 

1.5    Three requests for further information were issued under s. 20 of the European Arrest Warrant Act, 2003 (as amended) ('the 2003 Act') as follows:-

 

(i)                 A request was issued on the 18 December 2024 and a reply thereto received from the IJA on the 30 December 2024;

(ii)              A second request issued on the 27 January 2025 and a reply thereto was received on the 7 February 2025; and

(iii)            A third request issued on the 2 April 2025 and a reply thereto was received on the 4 April 2025

 

1.6    An affidavit was filed by the Respondent on the 7 February 2025. An affidavit was

filed by his solicitor, Mr Ciaran Mulholland, on the 26 March 2025 and it was this affidavit which prompted the issuance of the third request of the 2 April 2025.

 

2.      UNCONTROVERSIAL MATTERS

 

2.1    I am satisfied that the person before the court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

 

2.2    I am satisfied that none of the matters referred to in section 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended ("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.

 

2.3    I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The maximum sentence in respect of the offences for which surrender is sought is in excess of one year's imprisonment.

 

2.4    I am further satisfied that the EAW was issued by a judicial authority within the meaning of the Framework Decision and the 2003 Act.

 

2.5    The surrender of the Respondent is sought in relation to three offences where he, together with named perpetrators within various dates in 2003, was involved in the illegal importation, sale and supply of narcotic drugs contrary to Article 73 of Presidential Decree No. 309/1990 of the Italian Criminal Code.

 

2.6    The offences, which each carry a maximum sentence in excess of 3 years detention or custody, are certified by the issuing judicial authority as 'ticked box offences' of 'illicit trafficking in narcotic drug and psychotropic substances' as per Article 2.2 of the Framework Decision. As such, therefore, correspondence need not be proven. No issue was raised in relation to correspondence and no manifest or apparent error in relation to the certification of these offences as 'ticked box offences' is claimed by the Respondent.

 

2.7    The respondent made the following objections to surrender:-

 

(i)                 His surrender to Italy on foot of this EAW would involve a breach of his rights pursuant to Article 8 of the ECHR and the Charter of Fundamental Rights of the European Union;

(ii)              In the circumstances of a delay of over 17 years, the interests of justice and the balancing of rights requires a refusal of surrender where no effort has been made by the issuing state to explain such an inexcusable delay;

(iii)            The EAW is unclear and contains conflicting information on the issue of whether the Respondent was present at the trial resulting in the decision and no guarantee has been provided for a retrial;

(iv)             The procedural history of the case before the Courts in Italy is unclear and he cannot be surrendered where it is not known precisely what happened before the Italian Courts;

(v)               Similarly, there is uncertainty as to the sentence which the Respondent is required to serve if surrendered and this is a bar to his surrender; and

(vi)             The IJA, as a Deputy Public Prosecutor, does not have the requisite degree of independence to afford legitimacy to this request for surrender.

 

2.8    At the hearing of the application, the Respondent did not pursue the final two objections. Further he only relied on the fourth objection insofar as it related to his section 45 objection, namely that it is not clear he will be guaranteed a full retrial or appeal if surrendered.

 

3.      LACK OF CLARITY AND SECTION 45

 

3.1    The Respondent firstly objects to surrender on the ground that the EAW fails to comply with the requirements of Section 45 of the 2003 Act. Mr Okojie was tried in absentia, and he submits that he cannot be surrendered as this Court cannot be satisfied of compliance on the part of the IJA with the requirements of Section 45 of the 2003 Act.

 

3.2    At paragraph (d) of the EAW, it is stated that the Requested person did not 'appear at the trial resulting in the decision'. Box 3.4 of Paragraph (d) was thereafter ticked, and the following said by the IJA:

 

'3.4 the person was not personally served with the decision, but

-          the person will be personally served with this decision without delay after the surrender;

-          when served with the decision, the person will be expressly informed of his right to a retrial or appeal, in which he has the right to participate and which may allow the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and

-          the person will be informed of the timeframe within which he has to request a retrial or appeal, which will be 30 days'

 

3.3    The Respondent submits that, despite this assurance apparently complying with the requirements of Section 45 of the 2003 Act and Article 4. 2 of the Framework Decision, this court cannot in all the circumstances rely upon the same. The Respondent claims that, owing to what he says is some confusion as to the procedural history of this case in the Italian Courts and the contents of a letter received from his former Italian lawyer, this Court must have doubt as to whether the Respondent will be entitled to a full re-hearing or appeal if surrendered to Italy.

 

3.4     There have been several hearings in relation to this matter before the Italian courts and the Respondent has also had the benefit of his sentence being reduced following the introduction of a pardon by Law No. 241 of 2006 and its application to his case.

 

First Section 20 Request

3.5    The offences for which surrender is now sought occurred in 2003 and the EAW only issued on the 9 December. By letter of Request dated the 18 December 2024, the IJA were asked:-

 

'1.   Please address the period of delay between the issuing of he EAW on 9th December 2024 and the offence dates of 24.7.2003 and 31.7.2003; 5.8.2003 and 21.08.2003; and June 2003 to 20.7.2003

2. Please explain the delay between 11.1.2006 (the date on which judgment was delivered in respect of the sentences, as can be seen from part b of the warrant) and the decision of the Second Criminal Division of the Court of Appeal upholding he8 2006 judgment, delivered on 17.3.2023'

 

3.6    In the reply to the first s20 request the IJA inter alia informed this Court :

 

'- The trial against Okojie David spanned three levels of justice. The Ordinary Court of Turin issued Judgment No. 105/2006. The Judgment was appealed before the Court of Appeals of Turin which issued Judgment No 5490/2022 dated 16.09.2022. The convict finally appealed before the Court of Cassation, which by Order No. 42349/2022 dated 17.03.2023 declared the inadmissibility of the appeal, thereby making the judgment final

- After the Judgment becomes final, the Public Prosecutor's office issues a detention order and the convicted person is first searched by the judicial police on the national territory and, only in the event that he is not found, an order is issued for the convicted person abroad'

 

Second Section 20 Request

 

3.7    Further clarification was thereafter sought as follows:-

 

'(1) Part (b)2 of the European arrest warrant states that the enforceable judgment is the judgment of the Ordinary Court of Turin delivered on 11.01.2006 and upheld by the Court of Appeal of Turin by Judgment No. 5490/2022 delivered on 17.03.2023. We understand that the judgment of the Court of Appeal of Turin is actually dated 16.09.2022. Please confirm the enforceable judgment on which the European arrest warrant is based?

 

(2) It is indicated at part (d) of the European Arrest Warrant that David Okijie' did not appear in person at the trial resulting in the decision'. Please confirm what trial this relates to e.g. the Ordinary Court of Turin, the Court of Appeal of Turin or the Court of Cassation. Please also ensure that a completed Part D is provided for the relevant trial resulting in the decision.

 

(3) Can you explain the legal significance of the pardon referred to at part (c) of the European arrest warrant'

 

3.8    In the reply received on the 4 February 2025, the issuing Judicial authority stated:-

 

'1. The judgment no. 5490/2022 was delivered by the Court of Appeal of Turin on 16.09.2022, not on 17.03.2023, as mistakenly indicated, while the judgment became final on 17.03.2023

2. The person was present neither in the trial before the Ordinary Court of Turin on 11.01.2006, nor in the trial before the Court of Appeal of Turin on 16.09.2022

3. The 'general or collective pardon' [indulto] referred to at Part C of the EAW (different from the 'individual pardon' [grazia] is a remission in respect of the main sentence, which does not entail any effects on the offence.'

 


 

Affidavit of Respondent

 

3.9    In his affidavit filed on the 7t February 2025, the Respondent says that during the period of delay on the part of the Italian authorities, he has established a personal and family life in Ireland, his brother resides here, and he has no personal connections with Italy. His family reside in the UK and his children are grown up and there is no evidence that they are dependent upon him.

 

3.10 The Respondent also states that he has no knowledge of the proceedings which led to his conviction and the imposition of the sentence for which his surrender is now sought.

 

3.11 Mr Okojie denies fleeing justice and refers to having been arrested when he travelled to Italy on holiday in late 2021. He says that on arriving in Turin airport for the return flight to Dublin he was arrested in connection with a case of which he had no knowledge, namely one from 2003 and detained in jail in Italy until February 2022. He states that he was never taken to Court during that time but informed that proceedings had occurred in his absence and received a letter telling him he was free to leave.

 

3.12 The Respondent states that he was then told by prison officers that he was being re-arrested, which he believed was somehow connected to his having told his then Italian lawyer that he intended to sue the authorities. Mr Okojie says he then signed some document in Italian on the advice of his lawyer. Thereafter he appeared on a court video call and was questioned by a Judge about his activities in Italy in 2002 and gave truthful answers to all questions. The Respondent states that his lawyer 'appeared uncomfortable' during these proceedings. Mr Okojie says that his wife thereafter received a call from his lawyer who told her that he would be released if he paid outstanding legal fees. These fees were paid, and he was then released from custody.

 

Affidavit of Respondents Solicitor

 

3.13 A letter was received from the Respondent's Italian lawyer Alessandro Gasparini, dated the 25 March 2025, in which he sets out his representation of this Respondent at certain stages of the underlying domestic proceedings in Italy.

 

3.14 In that letter Mr Gasparini states the following:-

'At my request, Mr Okojie, already convicted with the aforementioned sentence, has already been returned within the deadline to appeal against sentence number 105/2006, issued by the Court of Turin, Third Criminal Section on 11/01/2006, in proceedings number 8728/04 RG NR (Public Prosecutor Dr STUPINO), number 4959/04 General Court Register. The appeal was timely filed by the defence and the Court of Appeal reduced the sentence imposed, from 10 years of imprisonment to 4 years and 8 months of imprisonment. The Court of Cassation, which is a judge of legitimacy (3rd degree judgment) and is based in Rome (not in Turin), declared the appeal inadmissible

 

The defence has therefore exhausted the faculties granted to the convicted person, already present and detained in Italy, in the context of said proceedings, and the three degrees of judgment have been exhausted

 

It is my opinion therefore, that there is no further remedy (appeal or other challenge) that the convicted person DAVID OKOJIE, born in Uromi (NIGERIA) on 27/04/1971, cam carry out before the Italian Judicial Authority'

 

3.15 Following the receipt of this letter from Mr Gasparini, a third request for information was sent to the IJA. Having enclosed a copy of this letter the letter of request continued as follows:-

 

'In this regard, the Respondent opposes his surrender to Italy and, in so doing, has adduced correspondence, dated 25 March 2025, from his lawyer at the proceedings before the Corte di Cassazione, Avv. Alessandro Gasparini, in evidence on affidavit. We attach a copy of this correspondence for your attention. As you will see, Mr. Gasparini has stated:

 

'...The Defence has therefore exhausted the faculties granted to the convicted person, already present and detained in Italy, in the context of said proceedings, and the three degrees of judgment have been exhausted.

It is my opinion therefore, that there is no further remedy (appeal or other challenge) that the convicted person DAVID OKOJIE, born in Uromi (NIGERIA) on 27/04/1971, can carry out before the Italian Judicial Authority...'

 

You might please confirm whether this alters the assurances given at Part D 3.4 of the European Arrest Warrant' [emphasis added]

 

3.16 A clear and unambiguous reply was received on the 4 April 2025 in the following terms:-

 

'Please find hereby enclosed the official communication from the Public Prosecutors office at the Court of Turin, which confirms that the guarantees in Part D.3.4 of the European Arrest Warrant (EAW) remain unchanged and fully valid'

 

4.      DECISION ON SECTION 45 ISSUE

 

4.1    At Paragraph D.3.4 of the Warrant the following is stated:-

 

'X Or 3.4 the person was not personally served with the decision, but

-          The person will be personally served with the decision without delay after the surrender;

-          when served with the decision, the person will be expressly informed of his right to a retrial or appeal, in which he has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and

-          the person will be informed of the time frame within which he has to request a retrial or appeal, which will be 30 days'

 

4.2     The first two requests for information, dated the 18 December 2024 and the 27 January 2025 respectively, sought clarification in relation to delay and issues that arose from the fact that the case had proceeded through three levels of the Italian Court system. No question was raised in either of these requests as to the contents of Part D.3.4 of the EAW.

 

4.3    A letter was subsequently received from an Italian lawyer, who had previously represented Mr Okojie in Italy, who expressed the opinion that no further remedy was available to the Respondent in the Italian Judicial system whereby he might challenge this conviction in absentia. Although he offers this view, nowhere in this letter does Mr Gasparini make any reference to Part D.3.4 of the EAW or in any way engage with the express guarantee of a retrial or appeal set out therein by the IJA.

 

4.4    Mr Gasparini's letter was then sent to the IJA specifically asking whether 'this alters the assurances given at Part D 3.4 of the European Arrest Warrant'. A clear and unambiguous response was received, enclosing untranslated documents from the Public Prosecutor, confirming that the guarantees set out in Part D.3.4 remain unchanged and fully valid.

 

4.5    At the core of the operation of the system of surrender between EU Member States as provided for by the Framework Decision, are the principles of mutual trust and confidence. On two separate occasions the Issuing Judicial Authority has informed this Court that Mr Okojie will, if surrendered to Italy, be guaranteed a right to re-trial or appeal that complies with the requirements of Section 45 of the 2003 Act. The second such assurance was given having considered the letter of Mr Gasparini and contained a clear and unambiguous statement that this remained the legal position.

 

4.6    In my opinion there is simply no basis upon which any doubt arises as to assurance given by the IJA that the Respondent will have to a right to a re-trial or appeal, which satisfies the terms of Part D.3.4 and the requirements of s45 of the 2003 Act. This has been set out clearly in the EAW itself and was confirmed by the IJA following consideration of the letter of Mr Gasparini.

 

4.7    For the sake of completeness, I find that there is no basis for any claim that the EAW somehow lacks clarity as to the right of Mr Okojie to a re-trial or appeal if surrendered.

 

5.      ARTICLE 8 & DELAY OBJECTIONS

 

4     

5     

5.1    In his affidavit filed in support of his objections to surrender, the Respondent says the following in relation to his family situation:-

 

'2. I have been living in Ireland since 2004. I have established a personal and family life here. My brother Ehidamien Roy Obhimon lives here. My wife, Joy Okojie, lives in the United Kingdom with my children who are educated there. I do not have any family or other personal connections remaining in Italy'

3     

4     

5     

5.1     

5.2    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.

 

5.3    It is well settled law that delay cannot operate as a standalone ground for the refusal of surrender on foot of an otherwise lawfully issued EAW. Where a complaint of delay is, as here, married to an objection under Article 8 of the Convention, it is the law that evidence of truly exceptional circumstances must exist before the surrender of a person could amount to a breach of the right to respect for private life. As was made clear by the Supreme Court in Minister for Justice v Palonka [2022] IESC 6, delay in itself cannot justify a refusal of surrender as delay does not create rights. It may however be the case that, owing to delay, circumstances have emerged that demonstrate a real, exceptional and oppressive disruption of family life in the most extreme and exceptional circumstances. As observed by Charleton J at paragraph 31 of his Judgment in Palonka delay 'may enable the growth of circumstances where a new situation has emerged that engages Article 8 of the European Convention in a genuinely exceptional way as set out in the individual procedural circumstances of the case'.

 

5.4    From the above cited case law, the following are the principles of particular significance to the objection made pursuant to Article 8 of the Convention on the facts in this case:-

 

(i)                 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;

(ii)              Delay in itself cannot ever operate as a bar to surrender. A person can have no legitimate expectation that he or she will avoid surrender under extradition or surrender arrangements because of the passage of time arising from a lack of resources or inefficiency on the part of the requesting state;

(iii)            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;

(iv)             Where the evidence shows a real, exceptional and oppressive disruption to family life in the most extreme and exceptional circumstances, delay may enable the growth of circumstances where a new situation has emerged that engages Article 8 of the European Convention; and

(v)               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.

 

5.2     

5.3     

5.4     

5.5     There has been a lengthy delay in this case from the time when the offences were committed until the time when this EAW was issued. A partial explanation has been provided by the IJA which covers the time periods from 2003 to 2006 and 2021 to date. No explanation has been provided for the passage of time between 2006 and 2021.

 

5.6    As noted above delay is not a standalone ground which in and of itself could justify a refusal to order surrender to another EU state. Here the Respondent argues that, owing to the passage of time and the change in his family circumstances in the intervening years, his surrender to serve this sentence would now constitute a disproportionate interference with his family and personal rights under Article 8 of the ECHR and that this is one of those exceptional cases where the Court should refuse surrender under Section 37 of the 2003 Act.

 

5.7    Whilst the Respondent complains about the lengthy and largely unaccounted for period of delay in this case, he has not in his affidavit set out anything in relation to his family and personal circumstances which could be regarded as exceptional. Whilst the Respondent has family ties with this jurisdiction, mainly it seems through his brother, his wife and children live in the United Kingdom and do not appear to be in any way dependent upon him. The disruption to his and his family's life is no more than that to be usually expected where someone is surrendered on foot of a lawfully issued EAW.

 

5.8    There is no evidence before the Court which would suggest that, owing to the passage of time identified by the Respondent, a situation has emerged in the intervening years to demonstrate that surrender would lead to a real, exceptional and oppressive disruption of his family and personal life in the most extreme of circumstances such as to engage Article 8 of the Convention.

 

5.9    Having considered the evidence adduced by the Respondent I do not consider that this is one of those rare cases where, owing to the change in a person's family or personal circumstances in the years since his commission of an offence and/ or his conviction thereof, it would be disproportionate to order his surrender.

 

5.10 I do not therefore consider that that are grounds to refuse to order his surrender pursuant to Article 8 of the Convention or s37 of the 2003 Act.

 

5.11 I therefore propose to make an order for surrender under section 16 of the European Arrest Warrant Act, 2003.

 

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