Bogdan Alexander Adamescu v Bucharest Appeal Court Criminal Division, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham,Lord Justice Holroyde |
| Judgment Date | 20 October 2020 |
| Neutral Citation | [2020] EWHC 2709 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1569/2018 |
| Date | 20 October 2020 |
[2020] EWHC 2709 (Admin)
Lord Justice Holroyde
Mr Justice Garnham
Case No: CO/1569/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugo Keith QC and Ben Watson (instructed by Karen Todner) for the Appellant
Tim Owen QC and Daniel Sternberg (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 14th, 15th, 16th & 17th July 2020
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Lord Justice Holroyde and
Bogdan Alexander Adamescu (“the appellant”) is alleged to have committed two offences of bribing judges in Romania in 2013. On 6 June 2016 the Bucharest Criminal Appeal Court, Criminal Division issued a European Arrest Warrant (“EAW”) against him. It was certified in this country by the National Crime Agency on 9 June 2016, and the appellant was arrested four days later. On 13 April 2018, after lengthy proceedings under Part 1 of the Extradition Act 2003 (“the Act”), District Judge Zani (“the DJ”) ordered that the appellant be extradited to Romania. The appellant appeals against that decision. This is the judgment of the court.
The appellant was born in Bucharest in 1978. He is the son of the late Daniel Adamescu (“Mr Adamescu senior”), a prominent Romanian entrepreneur and businessman. When the appellant was a child, the family moved to Germany, where he was educated. In 2006, he joined his father's business in Romania. At that time, Mr Adamescu senior had controlling interests in an influential newspaper called Romania Libera and in Romania's largest insurance company, Astra, both those organisations being part of the “Nova Group”.
The appellant contends that his prosecution in Romania is not the product of an ordinary, evidence-based criminal process: it is politically motivated and has been politically directed. This contention lies at the heart of the appellant's case. It is therefore convenient to begin by sketching an outline of some relevant features of the Romanian political and judicial systems. We do so by drawing upon some of the many reports contained in the voluminous papers which were placed before us.
Romanian political and judicial systems:
Romania is a constitutional republic with a democratic, multiparty parliamentary system. The bicameral parliament consists of the Senate and the Chamber of Deputies, both elected by popular vote. The head of government is the Prime Minister. The Head of State is the President. Romania has been a member of the Council of Europe since 1993, and joined the European Union (hereafter, “EU”) in January 2007.
Between 2012 and 2014, the President of Romania was Mr Traian Basescu. Mr Adamescu senior was a friend and supporter of Mr Basescu. In 2014, Mr Klaus Iohannis, who ran for office on an anti-corruption agenda, was elected President.
From May 2012 to November 2015, the Prime Minister of Romania was Mr Victor Ponta of the Social Democratic Party (the “PSD”). He was succeeded, after a short interregnum, by Mr Dacian Ciolos, an independent, who served from November 2015 to January 2017. He was followed by a series of Prime Ministers who were members of the PSD.
Article 126(1) of Romania's Constitution provides that —
“Justice shall be administered by the High Court of Cassation and Justice, and the other courts of law set up by the law.”
Article 124 guarantees that
“Judges shall be independent and subject only to the law.”
Judges are appointed by the President of Romania. By Article 125(1), they –
“shall be irremovable, according to the law… The appointment proposals, as well as the promotion, transfer of, and sanctions against judges shall only be within the competence of the Superior Council of Magistracy, under the terms of its organic law.”
Prosecutors are part of the judicial authority. By Article 132, they –
“shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.”
Article 133 (1) provides that the Superior Council of Magistracy (“SCM”) “shall guarantee the independence of justice”. By Article 134, the SCM —
“shall propose to the President of Romania the appointment of judges and public prosecutors, except for the trainees, according to the law” and “shall perform the role of a court of law, by means of its sections, as regards the disciplinary liability of judges and public prosecutors, based on the procedures set up by its organic law.”
Article 142 provides that the Constitutional Court shall be the guarantor for the supremacy of the Constitution. In this appeal, it has been common ground between the parties that the Constitutional Court has remained independent of the government of the day.
It has also been common ground between the parties that Romania has suffered significant corruption of public officials and that there have been various attempts at reform.
Corruption and reform:
In 2002, Romania established an anti-corruption directorate, the DNA. It carried out many investigations against leading politicians for alleged corruption and related offences, and a considerable number of ministers and members of the parliament were convicted. Romania received international praise for this fight against corruption. However, some politicians alleged misuse of powers by prosecutors and some judges.
In May 2013 Ms Laura Kovesi was appointed the DNA's chief prosecutor. She was removed from that office by the President in July 2018. In October 2019 she was appointed by the EU Public Prosecutor's Office as the first European Chief Prosecutor.
From March 2018 onwards, it emerged that there were secret protocols in existence between the SRI (the Romanian domestic intelligence agency), and the Romanian judiciary and prosecutors. At their annual meeting in September 2018, representatives of the Romanian courts of appeal expressed their concern for the observance of judicial independence as the basis of the right to a fair trial, and declared:
“In this context, the representatives of the courts of appeal have taken note with concern about the existence of recently declassified protocols concluded between the Prosecutor's Office attached to the High Court of Cassation and Justice and the Romanian Intelligence Service, whose content raises issues on the potential violation of the constitutional rules regarding the separation of powers, the observance of criminal procedure rules and, implicitly, of the human rights.
The representatives of the court of appeal therefore request the division for judges of the Superior Council of Magistracy to take the necessary steps to clarify whether the conclusion and classification of the protocols were such as to render the judicial independence vulnerable, independence that is essential for the completion of an act of justice within the limits of the law.”
On the accession of Romania to the EU in 2007, a transitional measure, the Cooperation and Verification Mechanism (“CVM”), was set up to facilitate Romania's continued efforts to reform its judiciary and to step up the fight against corruption. It was said to represent a joint commitment of the Romanian State and of the EU. It will come to an end when benchmarks relating to judicial reform, integrity and the fight against corruption have been met. Under this mechanism, the overall functioning of the Romanian judiciary has been the subject of yearly assessment and recommendations.
In January 2017 the Commission undertook a comprehensive assessment of progress over the preceding 10 years. Romania had made major progress towards the benchmarks, and had put into place a number of key institutions and much important legislation. This report confirmed that the Romanian justice system had profoundly reformed itself and that the judiciary had repeatedly demonstrated its professionalism, independence and accountability. Twelve recommendations were made with a view to resolving the remaining shortcomings.
A report published in November 2017 indicated that progress in addressing the recommendations had been affected by the political situation in Romania, with growing tensions between the parliament, the government and the judiciary. The government had adopted an emergency ordinance to decriminalise certain corruption offences and to propose a pardon law. That ordinance had later been repealed, but had “left a legacy of public doubts”. Further concerns were expressed about recent proposals to revise laws in ways which could affect judicial independence. Although progress had been achieved on a number of recommendations since January, overall reform momentum had been lost, slowing down fulfilment of the remaining recommendations and risking a re-opening of issues which the January 2017 report had considered as fulfilled.
A report in November 2018 stated that recent developments had reversed, or called into question the irreversibility of, progress. The twelve recommendations made in January 2017 were no longer regarded as sufficient to bring the CVM to an end, and eight additional recommendations were made. The report called on Romania to demonstrate a strong commitment to judicial independence and the fight against corruption. It concluded that —
“though progress has brought some benchmarks closer to the...
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