Dorel Tiganescu v The County Court of Suceava, Romania
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan,Lord Justice Holroyde |
| Judgment Date | 08 June 2022 |
| Neutral Citation | [2022] EWHC 1401 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/741/2020 |
[2022] EWHC 1401 (Admin)
Lord Justice Holroyde
Mrs Justice McGowan
Case No: CO/741/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Hines QC AND Émilie Pottle (instructed by Lloyds PR) for the Appellant
Catherine Brown (instructed by the CPS Extradition Unit) for the Respondent
Hearing date: 07 December 2021
Approved Judgment
This judgment was handed down by Mrs Justice McGowan remotely by circulation to the parties' representatives by email and release to The National Archives.
The date and time for hand-down is deemed to be 11.00 on 08.06.2022
Introduction
The appellant, Mr Dorel Tiganescu, is a citizen of Romania. He was born on 31 July 1980. His extradition is requested pursuant to a European Arrest Warrant, (“EAW”). Romania is a category 1 country for the purposes of the Extradition Act 2003, (“the 2003 Act”).
On 19 October 2016, the Respondent, the County Court of Suceava, Romania, issued an EAW. It was certified by the National Crime Agency (“NCA”) on 20 October 2016. It is a conviction warrant. The warrant seeks the extradition of the appellant to serve the whole period of a custodial sentence of seven years and six months for an offence of “qualified murder”. This is an extradition offence under s.65 of the 2003 Act.
On 23 February 2020 District Judge Goozée, sitting at Westminster Magistrates' Court, ordered the appellant's extradition pursuant to s.21(3) of the 2003 Act.
The appellant appeals against that order pursuant to s.26 of the Act. By s.27(2), this court can only allow an appeal if:
“(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided that question in the way he ought to have done, he would have been required to order the person's discharge.”
The appeal is now being pursued under s.20(2) of the Act, on the sole ground that the District Judge erred when he found that the appellant had deliberately absented himself from his trial, notwithstanding the fact that he had left Romania before the trial commenced.
This court is asked to consider whether the District Judge erred in his application of articles 4a(i) and (ii) of the Council Framework Decision 2002/584/JHA (“the 2002 Framework Decision”) (as amended by Council Framework Decision 2009/299/JHA (“the 2009 Framework Decision”)), and the 2003 Act, in the context of his findings on the facts.
Leave to appeal was granted on this sole ground by Lane J on 10 December 2020.
There is also an application by the appellant to adduce fresh evidence.
Two further grounds, namely a ground under s.2(2) of the Act and an article 3 argument on prison conditions are no longer pursued in the light of this court's decision in Wozniak v The Circuit Court in Gniezno, Poland [2021] EWHC 2557 (Admin) and the receipt of further assurances dated 21 May 2021.
Mr James Hines QC and Miss Émilie Pottle appeared for the appellant and Miss Catherine Brown for the respondent. The court is very grateful to them for their helpful written and oral submissions.
The Facts
On the night of 16 January into the morning of 17 January 1999 in Horodnic, Suceava County, Romania, a man called Senegeac Sarin was assaulted and received serious, life-threatening wounds. He was treated in hospital over many weeks for severe injuries, which were described as having, “put his life in danger”. The appellant was not formally arrested.
However, he was detained soon after the incident. He was held in custody for questioning. He denied the offence. He admitted in cross-examination before the District Judge that he had been held in detention until 18 March 1999.
After his release he was required to attend the Regional Court in Suceava for questioning, he did not attend. At some point he moved to the UK and has remained here, living under the name of Ion Balan, describing himself as a citizen of Moldova. He gave evidence that he had arrived in the UK in 2000, although the authorities in Romania believed he had left that country in 1999. The District Judge found that he had left Romania in 1999.
After the appellant left Romania a series of six summons was served at his former home address on his mother and sister. They were served on his mother on 23 October 2002, 15 January 2003, 17 February 2003 and 17 March 2003, and on his sister on 19 May 2003 and 7 July 2003. He gave evidence that after he had left Romania he had had no contact with his family there and was not aware that any summons had been served or that he was required to attend the trial. His sister also gave evidence in support of his case.
He was represented at his trial in Romania by a duty solicitor appointed by the state.
On 7 July 2003 the County Court in Suceava pronounced his conviction and imposed a penalty of seven years and six months. That became final on 28 July 2003.
He has an established family life in the UK, he lives with his wife and their child in North London. He also has two adult children in the UK from a previous relationship. When asked about changing his name, he said that he done that to avoid any possible association between his original surname and the gypsy community.
The appellant was arrested at a residential address in Colindale, North London on 18 November 2019.
Application to Adduce Fresh evidence
Since the grant of leave in this case there have been further proceedings in Romania. The appellant applied to the court there for a re-trial. The judgment refusing that application was handed down on 6 April 2021.
The appellant applies for leave to adduce that judgment in these proceedings and to raise a fresh ground of appeal based on article 6 of the European Convention on Human Rights, (“ECHR”).
It has not been necessary for this court to determine that application. It is agreed that the appellant does not have a right to a re-trial in Romania and this appeal must be determined solely on the issue of the appellant's absence from his trial and whether the District Judge was correct in concluding that it was deliberate.
The EAW
The EAW describes the offence in the following terms:
“On 16/17.01.1999 while leaving the Community Cultural Centre of Horodnic Town, Suceava County, Romania, defendant Tiganescu Dorel hit the injured party Senegeac Sarin with a penetrating body, in the belly and caused him a belly wound with transfixiant jejunal (sic) perforation and perforation of the ascendant mesocolon, injuries that needed 30–35 days of medical care and that put his life in danger”
The offence falls into the category of “murder and grievous bodily injury”.
After his release from custody the authorities summoned him to appear before the court by written subpoena. He was not found at his home address and, in accordance with domestic law, the authorities therefore served the summons to appear on his family members, (see above).
The EAW sets out the following account of the proceedings:
“The person concerned has been summonsed in person and consequently informed of the date and place of the hearing, which led to the decision rendered and has been informed that a decision may be rendered in absentia………………
………….[X] being aware of the hearing established, he authorised a lawyer who was appointed either by the person concerned, or officially, to defend him during the hearing and was indeed defended by the respective lawyer during the hearing.”
It is agreed that the appellant did not appoint the lawyer himself, rather it was a court appointed lawyer.
“Tiganescu Dorel was personally summoned and informed by other means about the date and place of the trial, respectively he was summoned at his place and the summons was affixed at the Local Council of Horodnic town, Suceava County (the place where the criminal offence was committed). Therefore, he was summoned for the following days of trial: 21.10.2002, 27.11.2002, 15.01.2003, 17.02.2003, 17.03.2003, 14.04.2003, 19.05.2003, 16.06.2003, 07.07.2003.
Tiganescu Dorel was summoned to appear before the judge, pursuant the legal provisions in force, respectively art 177 of the Romanian Procedural Code of 1968, through a written summons and, because he was not found at home, that summon was given to another person (his mother-Tiganescu Elena-for the trial days of 23.10.2002, 15.01.2003, 17.02.2003, 17.03.2003, and to his sister-Tiganescu Lacramioara-for the trial days of 19.05.2003, 07.07.2003-at that date being ruled the conviction order), according to art 179 of the Romanian Procedural code of 1968, in which was stated that ‘if the summoned person is not find at home, the court agent gives the summon to the husband/wife, to a relative or to any other person that lives with the summoned person or to a person who regularly receives the mail’.
At all the days of trial, Tiganescu Dorel was represented by the duty solicitor, lawyer Ciubotaru Vasile.”
In the first piece of further information, dated 9 December 2019, it was confirmed that the appellant had not been arrested and therefore no conditions were attached to his release from prison after his detention. He had not been required to notify the authorities of any change of address.
A further request for information was answered in a document dated 7 January 2020, (the date is accepted to have been incorrectly translated as 7 December 2019 on the face of the document). That further information sets out the history of proceedings in Romania in greater detail.
“…..2. Initially, the investigations in the case were carried out by the Bacau Military Prosecutor's Office, which by the resolution of 17.01.1999 given in the file...
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