Adrian Dragan v District Court of Baila (Romania)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 1785 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/127/2021 |
[2023] EWHC 1785 (Admin)
Mr Justice Lane
Case No: CO/127/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Henley (instructed by AM International Solicitors) for the Appellant
Mr D Ball (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 14 February 2023
Further written submissions on 1 and 5 March, 30 June and 6 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
The appellant appeals against the decision of District Judge Clews, dated 6 January 2021, to order his extradition pursuant to a conviction European Arrest Warrant (EAW) issued by the District Court in Braila, Romania on 26 March 2019 and certified by the National Crime Agency on 12 February 2020. Some of the grounds of challenge are new and permission to bring them is required.
A. THE OFFENCES
The warrant relates to the following two offences:
a. Attempting to pervert the course of justice between 22 and 23 April 2009. In return for 12,000 Euros from a witness, the appellant offered to speak to judges so that they would rule in favour of the company where the witness was employed. The appellant was sentenced to four years' imprisonment suspended for two years (but subsequently activated in light of conviction for the second offence);
b. Using a lease agreement which was not valid to seek payments of state aid from Romanian and EU budgets. The framework list is ticked for fraud. The appellant submitted the lease to the authorities on 11 May 2013 resulting in payments totalling RON 78,295.59 (approximately £14,500). He then submitted the lease agreement again on 15 May 2014 seeking further payment. For this offence, the appellant was sentenced to two years and four months' imprisonment.
Ultimately, a combined term of imprisonment of six years and four months' imprisonment was imposed, all of which remains to be served.
B. EXTRADITION PROCEEDINGS
The extradition hearing took place on 3 November 2020. The warrant was supplemented by a prison assurance and further information. According to the judgment of District Judge Clews, only two issues were actively pursued.
It is important to mention that the lease and the appellant's use of it were the subject of civil proceedings in Romania. The appellant says the conviction concerning the lease was contrary to Article 6 ECHR, in the light of the findings of the Court of Appeal in Galati on 22 October 2015. In this regard, the appellant's legal team in Romania have brought various applications and appeals to have the conviction quashed. I shall explain why in due course.
The extradition proceedings have had a long and somewhat complex history, which it is unnecessary to recite. Suffice it to say that the appellant now (through Mr Henley) seeks to advance the following grounds, some of which require the permission of this court.
C. THE GROUNDS OF CHALLENGE
Section 10 and section 65 (dual criminality)
This ground relates to the conviction concerning the lease. In this jurisdiction, fraud by false representation requires a dishonestly made false representation. The appellant says it is clear from the findings in the civil proceedings on 22 October 2015 that there was no misrepresentation or dishonesty. The offence therefore does not fulfil the dual criminality requirement. The Framework Decision classification of the offence as fraud is neither true nor fair. This means, according to the appellant, that this court must substitute its own assessment. Permission is required to bring this ground.
Section 12 (double jeopardy)
This ground relates to the conviction concerning the lease. The two sets of proceedings in Romania (civil and criminal) were based on identical facts. In essence, the appellant contends he was acquitted by virtue of the findings in the civil proceedings on 22 October 2015, such that the later criminal conviction would have amounted to an abuse of process in this jurisdiction: Connelly v DPP [1964] AC 1254. Section 12 acts as a bar in such circumstances: Fofana v France [2006] EWHC 744 (Admin). Permission is required to bring this ground.
Article 5 ECHR
This ground arises from a decision of the Constitutional Court on 17 February 2021 in the context of the fraud conviction. That decision post-dated the decision of the district judge. A flagrant breach of Article 5 might occur if an individual would be at risk of being imprisoned for a substantial period in the receiving state, having been convicted after a flagrantly unfair trial: Othman v United Kingdom [2012] 55 EHRR 1 at [23]. The Constitutional Court found that the pertinent wording of Article 52(3) of the Romania Code of Criminal Procedure was unconstitutional, in that it violated the principles of res judicata and thus ECHR Article 6. Clearly, if the trial resulting in the finding of guilt on the fraud charge was unfair, the resulting prison sentence breaches ECHR Article 5. Similarly, the appellant contends that the sentence of four years' imprisonment for attempting to pervert the course of justice must also be tainted and, thus, a breach of Article 5 (as the suspended sentence originally imposed was activated by virtue of the fraud conviction).
Article 8 ECHR
The appellant submits that the effect of the Constitutional Court's decision of 17 February 2021 reduces the public interest in extradition such that the decision of the district judge on the Article 8 balancing act is now wrong.
Abuse of process
The course of events in Romania has, according to the appellant, resulted in a grave injustice because of the refusal to apply the ne bis in idem principle or the res judicata principle. In light of the Constitutional Court's decision of 17 February 2021, it would now be abusive to extradite the appellant. On the face of the evidence before this court, he was convicted on the basis of Romanian provisions, which have since been held to be unconstitutional. It would be abusive to return the appellant to face the sentence arising from the unconstitutional conviction. It would also be abusive to return him to face the other sentence for perverting the course of justice, which was activated only by virtue of the unconstitutional conviction. Thus, the case for the appellant is that he should not be extradited in respect of either conviction.
D. THE AGRICULTURAL PAYMENTS CONVICTION
It is necessary to examine in some detail the background to the conviction in respect of the agricultural payments and the subsequent legal proceedings in Romania concerning these payments, since these feature strongly in the grounds of challenge. In 2013 and 2014, the appellant submitted a lease in support of an application for EU agricultural funding. The lease was between a company called S.C. Agrotest SRL (“Agrotest”) as the lessor and an entity called I.I. David MC Ana Maria as the lessee. The appellant's father owned Agrotest. The appellant was a director or administrator of I.I. David MC Ana Maria. At the relevant time, Agrotest was subject to insolvency proceedings and a liquidator had been appointed. On 17 January 2014, in civil proceedings, it was found that the lease which Agrotest had entered into with I.I. David MC Ana Maria was a nullity because it could not be signed by the appellant's father, in the light of the insolvency.
In July 2014, the Payment and Intervention Agency for Agriculture (“APIA”), which had made the agricultural payment, required its repayment. Meanwhile, civil proceedings had been brought by I.I. David MC Anna Maria against APIA. These proceedings culminated in a civil judgment from the Galati Court of Appeal, dated 22 October 2015. In that judgment, APIA's decision for the money to be repaid was annulled. As can be seen from the foregoing, the appellant relies heavily on this decision of the Galati Court of Appeal.
Notwithstanding the Court of Appeal's decision on the civil matter, criminal proceedings were brought against the appellant in respect of the agricultural payments. On 1 November 2017, the Braila District Court found the appellant guilty of “submitting in bad faith forged, inaccurate or incomplete documents or declarations”.
The appellant submitted the lease in 2013 and, again, in 2014, in respect of the agricultural payments. On 20 May 2014, after submitting the lease a second time, I.I. David MC Anna Maria told APIA that the lease was a nullity. It appears from the record of the Galati Court of Appeal that the disclosure to APIA of the lease's nullity came about as a result of a request by APIA. The Court of Appeal held that I.I. David MC Anna Maria “based on the lease agreement concluded with [Agrotest] fulfilled its obligations when submitting the application, respectively worked the leased land keeping the destination for which it requested the payment of the subsidy”. As regards the good faith of I.I. David MC Anna Maria, the court recorded that it should “also be mentioned that it was she (sic) who informed the defendant that a court ruling had established the absolute nullity of the lease”. As a result, the Court of Appeal found it “unlawful to sanction the applicant for the culpable conduct of [Agrotest] found at the time after the submission of the request for payment”.
Following his conviction for the fraud offence, the appellant launched extensive legal challenges in Romania. In essence, the appellant argued that his conviction was unfair, in the light of the October 2015 decision of the Galati Court of Appeal in...
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