Bogdan Ovidiu Cristian Dimin v Alba Iulia Court of Law, Romania

Hearing date: 12 March 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 2 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is an appeal pursuant to section 26(4) of the Extradition Act 2003 (“EA 2003”) brought by the Appellant, Mr Dimin, against the judgment of District Judge Sternberg (“the DJ”), given on 17 October 2022, ordering his extradition to Romania.

His extradition was ordered in respect of a European Arrest Warrant (“EAW”) issued by the Alba Iulia Court of Law, Romania on 29 July 2019 and certified by the National Crime Agency (“NCA”) on 7 November 2021. As I detail below, the EAW is a conviction warrant relating to two offences of theft. A sentence of 16 months imprisonment was imposed, all of which remains to be served.

In the proceedings below, the only issues raised were Articles 3 and 8 of the European Convention on Human Rights (“ECHR”). The Appellant applied for permission to appeal on two grounds. Firstly, that had it been considered at the hearing below, the DJ could not have been satisfied that Mr Dimin had “deliberately absented” himself from his trial, within the meaning of section 20(3) EA 2023; and could not have been satisfied that he had a right to a retrial complying with section 20(5). No objection is taken to the section 20 issues being raised for the first time on appeal. The second ground is that the DJ erred in concluding that extradition did not amount to a disproportionate interference with rights guaranteed by Article 8 ECHR. Permission to appeal was granted by Andrew Baker J on 10 March 2023.

During the course of the appeal hearing, Mr Clej made an oral application to add a further ground of appeal, namely that it was not open to the DJ to make certain findings of fact, given that the Appellant had not been cross-examined on his account. I consider whether to grant permission to rely on this ground at paras 91 – 94 below.

As I will come on to explain, the Appellant has filed application notices seeking to rely on fresh evidence for the purposes of this appeal comprising his two proofs of evidence and also two witness statements from his partner, Juliana Codescu. Consideration of those applications was adjourned to the substantive appeal hearing. The Appellant has been given permission to rely upon fresh evidence from Associate Professor Norel Neagu, from whom I heard oral evidence.

Procedural chronology of the extradition proceedings and the appeal

On 21 June 2022, the Appellant was arrested at the Romanian Consulate. He was produced for the initial hearing at Westminster Magistrates' Court (“WMC”) on the same date. The Appellant declined to consent to extradition and the proceedings were formally opened and adjourned. The Appellant was granted conditional bail, with conditions including an electronically monitored curfew between the hours of midnight and 6:00am. Subsequently, the curfew period was reduced to end at 4:00am.

The extradition hearing took place on 17 October 2022. At that stage, the Appellant was unrepresented. He gave evidence and an email from his partner, Ms Codescu, was provided to the Court. The DJ gave judgment the same day and extradition was ordered pursuant to section 21(3) EA 2003.

The appeal was lodged with this Court on 20 October 2022 and Perfected Grounds of Appeal (“PGA”) were filed on 4 November 2022. An extension of time for doing so was granted by Andrew Baker J on 10 March 2023 when he granted permission to appeal. Andrew Baker J also ordered that any application to adduce fresh evidence in support of the Article 8 ground was to be filed and served by 31 March 2023. An application to adduce further evidence, namely a proof of evidence from the Appellant (simply dated “2022”) and a witness statement from Ms Codescu (also just dated “2022”) was made on that date. The Respondent filed a response, objecting to the new evidence. By order of 31 January 2024, Hill J directed that this this application be dealt with at the appeal hearing. Hill J also gave prior authority for expert evidence to be obtained from Professor Neagu; and she provided that the appeal should be listed on the first available date after 15 March 2024.

The expert report from Professor Neagu was filed on 7 March 2024. In response, the Respondent indicated that it wanted the Professor to give evidence at the appeal hearing, if his report was to be admitted. On 10 May 2024, the Appellant applied for Professor Neagu to give evidence via CVP at the hearing which had now been listed for 11 July 2024. The Appellant's solicitors also submitted a form for Mutual Legal Assistance (“MLA”) (without an accompanying explanation), as, at that stage, the Appellant's legal team believed that the consent of the Romanian authorities was required for the Professor to give evidence from Romania.

By order of 5 July 2024, I refused the application for Professor Neagu to give evidence via CVP. I did so because at that stage there was no proper basis for him to give evidence, remotely or otherwise, at the hearing. The Appellant's skeleton argument for the appeal hearing indicated a substantial expansion of the grounds of appeal, in reliance upon the Professor's report, but no application had been made to amend the PGA; and, in addition, no application had been made to rely upon Professor Neagu's report by way of fresh evidence. I also noted in my order that insufficient information had been provided in relation to the MLA request.

The Appellant then applied to amend the grounds of appeal, to rely upon the Professor's report and to rely upon a further 2024 proof of evidence and a 2024 witness statement from his partner. The Respondent applied to rely upon Further Information dated 2 July 2024. By order of 9 July 2024, I granted these various applications, save that I directed that the application to rely upon the 2024 addendum proof and the 2024 witness statement should be considered at the substantive hearing. I was also persuaded to adjourn the hearing listed for 11 July 2024, primarily to give the Appellant further time to establish whether Professor Neagu was permitted to give evidence from Romania or could attend the hearing in person.

The appeal hearing was re-listed for 12 December 2024 and the Appellant submitted a further MLA form and application for Professor Neagu to give evidence via CVP at this hearing. By order of 11 December 2024, Choudhury J reluctantly adjourned the hearing, given that the Appellant's position at that stage remained that Professor Neagu was unable to give evidence from Romania until an authorisation had been granted by Romania and that had yet to be resolved. In his accompanying reasons, Choudhury J pointed out that the Appellant should have made clear to the Administrative Court Office what was to be done in respect of the MLA form. There was then some further communications between the Court and the Appellant regarding the MLA form, in terms of what was required. The MLA request was considered by Collins Rice J on 13 February 2025 and she identified further information that the Appellant should provide. The additional material was received by the Court on 18 February 2025. However, before it could be placed before a Judge, the Appellant's solicitors emailed the Court on 4 March 2025, now indicating that the consent of the Romanian authorities was not in fact needed, given that their assistance was not required in relation to the taking of the Professor's evidence. Supporting documentation from WMC was provided. In light of this, by order of 10 March 2025, I gave permission for Professor Neagu to give oral evidence via CVP at the 12 March 2025 appeal hearing.

The application for a stay

The Article 8 ground of appeal raises a number of respects in which it is said that the DJ's decision was wrong, including the prospect of early release if the Appellant is extradited to Romania. No application was made in advance of the hearing for the appeal to be stayed, pending the Supreme Court handing down judgment in the appeal from Swift J's judgment in Andrysiewicz v Circuit Court in Lodz, Poland [2024] EWHC 1399 (Admin) (paras 85 – 86 below). I checked that this was the position during the course of Mr Clej's oral submissions on the Article 8 ground. He confirmed that it was, indicating that he was content to proceed on the basis of Swift J's analysis. However, at the end of his reply to Ms Brieskova's submissions, Mr Clej indicated for the first time that he did wish to seek a stay until the Supreme Court had given judgment. After hearing submissions on this point and taking time to reflect, I refused the stay application in an oral judgment given later that day. My reasons for doing so appear in that judgment; in short, the issue was unlikely to prove decisive in this appeal and it was not in the interests of justice to grant the stay.

The extradition request

The two theft offences for which the Appellant's extradition was ordered are: (i) on 23 July 2016, the Appellant stole clippers from a shop in Alba Iulia to the value of 179.9 Romanian Lei; and (ii) on the night of 8 – 9 August 2016, he stole 2,800 Lei from a car parked on a street in Alba Iulia. He was tried for these offences in his absence and was convicted on 23 May 2019 and sentenced to 16...