Alexandru Sirbu v Sibiu Court of Law, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 08 February 2021 |
| Neutral Citation | [2021] EWHC 212 (Admin) |
| Docket Number | Case No: CO/1472/2019 |
| Date | 08 February 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 212 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/1472/2019
David Williams (instructed by Sonn Macmillan Walker) for the Appellant
Ben Joyes (15 January 2020) Stuart Allen (14 July 2020) Helen Malcom QC and Stuart Allen (12 November 2020) (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 15 January 2020, 14 July 2020 and 12 November 2020
Approved Judgment
A. Introduction
The surrender of Alexandru Sirbu is requested by the Sibiu Court of Law, Romania pursuant to a European Arrest Warrant (“EAW”) issued on 21 May 2018 and certified by the National Crime Agency on 24 May 2018. This appeal is against an extradition order made consequent on the judgment of District Judge McGarva at Westminster Magistrates' Court, delivered on 9 April 2019.
This appeal has been heard over three occasions. It originally came for hearing on 15 January 2020. On that day, most matters in the appeal were argued. But it proved necessary to adjourn the hearing to permit the Requesting Judicial Authority the opportunity to serve further information on a matter that arose during the hearing. The hearing resumed on 14 July 2020 and I heard further argument on a new ground of appeal which was added by amendment. The Appellant's application to amend was not opposed by the Requesting Judicial Authority. The hearing was then adjourned once more, this time pending the hearing in the Divisional Court in the case of Enasoaie v Bacau Court Romania (CO/3333/2019 and 3404/2019). That court was due to hear argument on whether Romanian law permitted merged sentences (explained below) to be disaggregated or otherwise varied when necessary to comply with the speciality rule. By the end of the hearing in this case on 14 July 2021 it appeared possible that the outcome of this appeal might depend on that point. The final part of the hearing in this appeal took place on 12 November 2020 immediately following the conclusion of the hearing in Enasoaie.
The EAW in this appeal is a conviction warrant; although issued in respect of a single conviction, the warrant refers to a number of other convictions that were, by operation of Romanian law relevant to the sentence imposed by the court. The information in the EAW has been supplemented by further information provided by the Requesting Judicial Authority: first on 3 December 2020 in response to a request dated 22 November 2018; second on 27 December 2018 in response to a request dated 17 December 2018; and third on 11 February 2019 in response to a request dated 18 December 2018. As I have already mentioned, following the hearing in January 2020 a further request for information was made to the Requesting Judicial Authority. I will explain the circumstances in which that request was made and the information that was provided later in this judgment. Each of the documents provided by the Requesting Judicial Authority in response to the requests has been translated into English. In places, the translations do not make for easy reading. Whether this is the consequence of the quality of the translation, or the style of the original text, it is not possible to say, and in truth does not really matter.
The decision on which the EAW is based is a conviction of 14 February 2018 of the Sibiu Court of Law (Conviction No. 21/14.2.18; file number 931/85/2015 – “Conviction 1”) this is a conviction for an offence of attempted murder contrary to Article 188 of the Romanian Criminal Code read together with Article 32 of that Code. This conviction resulted in a sentence of imprisonment of 5 years. The EAW then goes on to explain how that sentence has been amalgamated with sentences imposed on the Appellant following other convictions. It is the narrative in the EAW relating to these matters that gave rise both to the submissions pursued at the extradition hearing before the District Judge, and the grounds of appeal pursued in this court.
Drawing together the information contained in the EAW and the information provided subsequently by the Requesting Judicial Authority, the position as at the hearing in January 2020 was that sentences for two other offences had been added to the 5 years' imprisonment imposed in consequence of Conviction 1. This exercise had taken place pursuant to Article 43(2) of the Romanian Criminal Code, which provides in specified circumstances for what is described as the merger of sentences. In this instance the relevant other convictions were as follows:
(a) Conviction 318/5.5.13 imposed by the Sibiu Court (file number 10050/306/2012, “Conviction 2”) in respect of an offence of indecent exposure and a public order disturbance which resulted in a sentence of 1 year 6 months imprisonment; and
(b) Conviction 425/31.8.15 also by the Sibiu Court (file number 5557/306/2015 – “Conviction 3”) in respect of an offence of destruction of property which attracted a sentence of 2 years 9 months' imprisonment and a public order offence which resulted in a penalty of 9 months imprisonment.
When the sentences for Conviction 2 and Conviction 3 were merged with the sentence for Conviction 1, the time added to the five years' imprisonment imposed for Conviction 1 was the equivalent of one-third of the sentences of the imprisonment imposed for Conviction 2 and 3 – i.e., an additional period of 1 year 8 months' imprisonment.
Next, further time was added to the sentence to be served by the Appellant in accordance with Article 104(2) of the Romanian Criminal Code. This was by reason of a further conviction for robbery and theft offences ( Conviction 443/20.08.2008, file number 4113/306/2008, imposed by the Sibiu Court – “Conviction 4”). The original sentence imposed for this conviction had been 6 years. By Article 104(2) of the Romain Criminal Code, if a person serving a sentence is released on parole but commits a further crime during the licence period the remainder of the penalty for the original offence is to be served. In this instance that added a further 885 days to the Appellant's sentence.
All this meant that the time to be served by the Appellant for Conviction 1 (5 years), Convictions 2 and 3 (1 year 8 months), and Conviction 4 (885 days, i.e. 2 years 5 months and 5 days) came to 9 years 1 month and 5 days.
Allowance was then made for periods of detention already served by the Appellant: (a) from 19 August 2012 to 31 December 2013; and (b) 24 April 2015 to 3 November 2017, such that the time remaining to be serve in Romania as stated in the EAW is 5 years 3 months and 11 days. For sake of convenience, I will refer to this end point as the “merged sentence”.
At the extradition hearing, the District Judge rejected the three submissions made on behalf of the Appellant: that the EAW failed to comply with the requirements of section 2 of the Extradition Act 2003 (“the 2003 Act”); that the offences referred to in the EAW were not all extradition offences within the scope of section 10 of the 2003 Act; and that prison conditions in Romania were such that if removed to Romania, the Appellant faced prison conditions that would be likely to amount to ECHR article 3 ill-treatment.
B. Decision
The original grounds of appeal repeat the first two of the contentions made before the District Judge: (a) that the EAW does not comply with section 2 of the 2003 Act; and (b) and that not all the offences referred to in the warrant are extradition offences for the purposes of section 10 of the 2003 Act.
(1) The section 2 ground of appeal
By section 2 of the 2003 Act a conviction warrant is required to state that the Requested Person has been convicted of the offence referred to in the warrant and that the warrant is issued with a view to the requested person serving a sentence of imprisonment that has been imposed. The warrant must also contain the following further information: particulars of the Requested Person's identity; particulars of the conviction; particulars of any other warrant issued in the requesting state; and, where the person has been sentenced, particulars of the sentence which has been imposed. By reason of the Extradition Act (Multiple Offences) Order 2003, unless the context requires otherwise, references in the 2003 Act to “an offence” is to be construed as a reference to “offences”.
The Appellant's case on section 2 comprises two points. First, he submits that the sentence for which his return is requested has been insufficiently particularised because there is no sufficient explanation of the sentence of 5 years 3 months and 11 days which the Requesting Judicial Authority says is the sentence he will be required to serve if returned. Second, the Appellant submits that there is no sufficient explanation in the warrant of the sentence brought into play by operation of Article 104(2) of the Romanian Criminal Code (i.e. the remaining part of the sentence imposed following Conviction 4). The Appellant further submission is that if the warrant is flawed by reason of either of these matters, that is sufficient to invalidate the warrant because under Romanian law it is not possible to disaggregate any part of the merged sentence.
An EAW must meet the requirements of section 2 of the 2003 Act. However, it will not necessarily be fatal if all the information required by section 2 is not on the face of the warrant so long as the information required is provided...
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