Chen and another v Government of Romania and Others
Jurisdiction | England & Wales |
Judge | MR JUSTICE MITTING,LORD JUSTICE MAURICE KAY,Mr Justice Mitting,Lord Justice Scott Baker |
Judgment Date | 15 March 2007 |
Neutral Citation | [2007] EWHC 520 (Admin),[2006] EWHC 1752 (Admin) |
Court | Queen's Bench Division (Administrative Court) |
Docket Number | CO/1202/2006,Case No: C0/8844/2006 C0/9236/2006 |
Date | 15 March 2007 |
[2006] EWHC 1752 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice Maurice Kay
Mr Justice Mitting
CO/1202/2006
MR EDWARD FITZGERALD QC (instructed by Messrs Blavo & Co) appeared on behalf of the CLAIMANT
MS CLAIR DOBBIN (instructed by the Home Office Extradition Section) appeared on behalf of the DEFENDANT
On 6th April 1995, the appellant, a native of Guangdong, China, was convicted in his absence of the murder of Yu Xing Yu and the wounding of Zhai Jing Sheng on the night of 25th and 26th January 1992 in Bucharest by the Bucharest District Court. He was sentenced to 20 years' imprisonment and ordered to be deported on his release. His conviction and sentence became final (there being no appeal against either) on 6th September 1995.
A warrant for his arrest had been issued on 30th January 1992 but never executed. Precisely when and in what circumstances the appellant came to be in and to leave Romania are obscure. He says in his draft witness statement, made for the purpose of these proceedings, that he spent three short periods in Bucharest: two to three days, on arrival from the Peoples' Republic of China in 1989 (after which he went to live in Budapest, Hungary); two weeks in 1991 (to get a Romanian visa); and two to three days (to attempt, unsuccessfully, to collect his belongings, which he had left behind on his second visit) one month later. He denies committing the offences and denies all knowledge of the criminal proceedings in Bucharest until his arrest in Liverpool on a provisional warrant on 15th March 2005. He had come to the United Kingdom in 1999 and claimed asylum, unsuccessfully, as a member of the Fa Lung Gong. Meanwhile, he had married his girlfriend and she had given birth to his daughter in 2002.
On 18th March 2005, the Republic of Romania requested the extradition of the appellant to Romania. The request was certified by the Secretary of State on 24th April 2005. On 3rd December 2005, after a hearing at Bow Street Magistrates' Court, District Judge Wickham sent the case to the Secretary of State for his decision on whether the appellant should be extradited. On 31st January 2006 the Secretary of State ordered his extradition to Romania.
It is common ground that the appellant was convicted in his absence. Following upon the decision of this court in The Government of the Republic of Albania v Bleta [2005] EWHC 475 Admin, the Government of Romania conceded that he had not deliberately absented himself from his trial because there was no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial: see paragraph 48 of Bleta.
The appellant submitted to the District Judge that she should order his discharge on one or both of two grounds:
(1) His extradition was barred under section 79(1)(c) Extradition Act 2003 by the passage of time;
(2) Having been convicted in his absence without having deliberately absented himself from his trial, he would not be entitled to a retrial or, on appeal, to a review amounting to a retrial under section 85(5), which gave him the right to specify in section 85(8). The District Judge rejected those submissions.
The relevant statutory provisions are:
section 79(1)(c):
"(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 2 territory is barred by reason of…
(c) the passage of time…"
section 82:
"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."
and section 85:
"(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 86.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights-
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had no sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
The wording of section 85(8) is identical to Article 6(3)(c) and (d) of the European Convention on Human Rights.
Section 85(5) and (8)
The District Judge's conclusion was, as to legal representation:
"I am satisfied that the right to legal representation S.85(8) is preserved. The defendant will have compulsory juridical assistance by virtue of the gravity of the accusations."
As to what she regarded as a more important issue under section 85(8)(a) to (b):
"Mr Baker argues that Article 405 para 2 of the Romanian Criminal Procedure Code gives a discretion to the Judge on a retrial to re-administer all the evidence administered during the first trial only 'if it finds it necessary' and that the fact of that discretion, whether it is actually exercised by the retrial Judge or not, breaches Article 6. The letter of Mr Radu (dated 11th October 2005) makes it clear that by Article 405 para 1 the procedure for the retrial will be governed by the rules settled for the trial in the first court of the accused (and I accept from the documents in the extradition request bundle that witnesses were interrogated); he further states that Dr Draghici's opinion on Article 405 is taken out of context and that Article 320 allows for the admissibility of fresh evidence and calling of witnesses at the defence request."
"I do not wish to give a judgment based on some contest between Mr Radu and Dr Draghici, least of all when neither of these parties have themselves given evidence or been cross-examined and many nuances of interpretation may be lost in translation. I am of the opinion that the reference to 'if he finds it necessary' is no more than a reference to the discretion given to any Judge to administer his or her court and manage his or her caseload as befits each individual case and that the defendant's right remains preserved."
Section 85(5) requires the judge to decide whether a convicted person who has not deliberately absented himself from his trial would be entitled to a retrial et cetera in which he would have the rights specified in section 85(8). "Entitled" as a matter or ordinary language must mean "has the right under law". It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion. Free of authority, I would hold it is neither necessary nor right to examine what a requesting state does in practice. Its law will either provide clearly for the relevant entitlement or it will not.
The law of Romania is clear. As was accepted by Dr Mariana Mihai, an expert in Romanian law called by the appellant, and as stated by her colleague Alice Draghici in answer to question 5 in her written report dated 26th July 2005, Article 20 of the Romanian Constitution provides unequivocally that all treaties and conventions signed by Romania become part of the internal law of Romania which it is mandatory for Romanian courts to apply. Further, in the event of disagreement between a convention such as the European Convention on Human Rights and the Romanian Criminal Code, the convention prevails. Romania ratified the Convention on 20th June 1994. Accordingly, the terms of Article 6 are not only incorporated into Romanian law, but also prevail over any contrary provision of its Criminal Code or practice.
The requirements of Article 6 in a case in which a person has been tried in his absence are clear: he must be afforded a retrial, to which the requirements of Article 6 apply, unless he can be shown to have sought to escape trial or to have unequivocally waived his right to appear in court: see most recently Sejdovic v Italy, 1st March 2006, paragraph 105.
As Dr Mihai explained, Article 522 of the Criminal Code was passed into law to give effect to Article 6 in the case of extradited persons tried in their absence. It provides:
"(1) If the extradition of a person tried and condemned while absent is requested, the case may be retried by the court which solved the case in first instance, at the request of the condemned."
(2) The provisions of articles 405–408 apply accordingly."
In his submissions to us, Mr Fitzgerald QC demonstrated that the word...
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