Eduard Tabacaru v Iasi Court of Appeal Romania
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 28 March 2023 |
| Neutral Citation | [2023] EWHC 700 (Admin) |
| Docket Number | Case No: CO/4047/2019 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 700 (Admin)
Sir Ross Cranston
sitting as a High Court judge
Case No: CO/4047/2019
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mary Westcott (instructed by Lawrence & Co) for the Appellant
Amanda Bostock (instructed by CPS) for the Respondent
Hearing date: 23 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal against a decision made on 10 October 2019 by District Judge Zani to order the appellant's extradition to Romania.
The appeal concerns the two grounds for which permission to appeal has been given, first in relation to Article 3 ECHR, prison conditions (Johnson J, October 2021), followed by in relation to Article 8 ECHR, the appellant's private and family life (Holgate J, January 2022).
The case has been much delayed. Extraditions to Romania (including this one) were stayed because of challenges regarding the prison conditions to which extraditees would be subject there. The stay was effectively lifted by the Divisional Court's decision in the test case of Marinescu v Romania [2022] EWHC 2317 (Admin), handed down on 12 September 2022.
The warrant
The extradition order which the District Judge made in the present case was pursuant to a conviction European Arrest Warrant (‘the EAW’) issued in July 2017 and certified by the National Crime Agency in June 2018.
Under the warrant the appellant is sought to serve a sentence of 3 years' imprisonment. His sentence was originally 4 years' imprisonment, imposed by the Iasi Court of Appeal on 10 November 2016. That was later modified and made final by a decision of the Romanian High Court of Cassation on 28 June 2017, which allowed the appeal in part and reduced the sentence to three years imprisonment.
The offending occurred between April 2010 and May 2011 when the appellant was acting as principal of his company. The warrant states that he committed the offences of false accounting and tax evasion. He required another person to counterfeit 127 tax invoices and 113 receipts to reduce through fraud the company's liabilities to VAT and corporation tax.
The respondent puts the total loss through the offending as being the equivalent of a little over £160,000 (comprising approximately £100,000 lost VAT and £60,000 lost profit tax).
The EAW contains the appellant's address in Somerset.
Earlier proceedings and further information
The appellant's evidence is that he was before the Romanian court for the offending in March 2013, that the case was in the High Court of Cassation in April 2014, and that it was then in the hands of the prosecution for 18 months. There were meetings with the prosecution in December 2015, but he left for the UK in April 2016 after the prosecution on his account reneged on an agreement which had been reached on the way forward.
The Further Information from the Romanian Judicial Authority dated April 2019 explains the sentence imposed in December 2016 by the Iasi Court of Appeal and its reduction the following year by the High Court of Cassation. The appellant had attended the first instance hearing and two of the three appellate hearings in the High Court of Cassation. The Further Information states that he knew that the High Court of Cassation was to pronounce sentence. A domestic warrant to execute sentence was issued in June 2017 but he could not be found in Romania. Subsequently, the Further Information states, it was found that he had left Romania in April 2017 and gone to the UK to an address in Somerset.
The District Judge's judgment
The appellant was arrested at his home in Somerset pursuant to the EAW on 17 April 2019. He has been on conditional bail since 29 April 2019 with an electronic curfew of two hours per day, although the time varies to accommodate his different night and day shifts.
The substantive extradition hearing at Westminster Magistrates' Court occurred in August 2019, and judgment was handed down in October 2019. He was unrepresented. Legal aid had been withdrawn when it was found that he did not meet the means test.
After setting out the details of the EAW the District Judge noted that the appellant attended the court proceedings in Romania and had a lawyer to represent him during the trial process. Although the appellant now denied the offending the Judicial Authority had submitted that he made clear admissions of guilt during the course of the criminal proceedings, including the appeal.
The District Judge noted that the appellant had submitted references about himself, written by himself with an illegible signature and on company letter head, the company then in administration. His intention was that the references would appear to have been written by another person. The District Judge commented that this did him no favours when the court had to consider the question of his credibility.
The District Judge noted that the appellant was born in 1977. He had arrived in the UK in April 2016. His partner and their two children arrived several months later. He had been employed as a health care assistant at a hospital in Somerset. He provided financially for his family, as did his long term partner. During the course of his evidence the appellant acknowledged that he and his partner had spent periods of time living apart. In February 2019 his partner had purchased her own flat where it was anticipated that she would live with the children, separate from the appellant. On his evidence, however, the partner and children returned to live with him but then left again. According to the appellant the partner worked as well as a health care assistant at the same hospital. The relationship with his partner, the District Judge summarised, had not been smooth.
The appellant advanced various challenges to extradition. There is no need to canvass all of them here since they are no longer pursued.
As to article 3 ECHR, prison conditions, the District Judge noted that the Romanian authorities had provided a written assurance setting out comprehensive details of the conditions and facilities to be made available to the appellant. The District Judge acknowledged the criticisms which the appellant made about Romanian prison conditions but was satisfied that the written assurance amounted to a detailed, specific, and tailored document compliant with the requirements set out in Musric v Croatia (2017) EHRR 1, [93]–[94]. The District Judge said that he was ‘entirely satisfied to the necessary standard that the Romanian authorities are aware of their Convention obligations and, taking into account the contents of the satisfactory written assurance relied upon, that they will comply with them in this case.’
In the course of his analysis of article 8 ECHR, the District Judge found that the appellant was a fugitive:
‘[H]e was well aware of those proceedings (and their outcome), having attended the court hearings. He appealed the original sentence (of 4 years) and, for some time, has been aware of the (reduced) 3 year term imposed by the Romanian Court of Cassation but has shown no inclination to return to serve the sentence. He was sought by the Romanian authorities but to no avail, hence the requested for extradition having been made.’
The District Judge set out the factors in favour and against extradition in accordance with Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin). In favour of extradition were the public interest factors, the seriousness of the offence, and the appellant's fugitivity. Against extradition were that the appellant had been settled in the UK since 2016; both he and his partner were in fixed employment; he had, until recently, been residing with her and their children and wished to rekindle the relationship with them; he had led a law-abiding life since settling in the UK, was well thought of in his local community, and also carried out some charity work; and he intended to continue with his studies and potentially change employment if he were allowed to remain in the UK.
In finding that it would not be disproportionate to extradite the appellant the District Judge stated as his reasons the public interest factors, the seriousness of the offending, and the appellant's fugitivity. There would be some hardship caused to the appellant, his partner and the two children, the District Judge said, but the partner was of independent means and the main carer of the children. (After the hearing, in August 2019, the District Judge noted that the appellant accepted in a communication with the respondent that his partner and the children had been ignoring his calls and had returned to live in her flat.)
The District Judge also noted apparent discrepancies between information provided by the appellant and that which the partner had provided. The District Judge said that the appellant's production of two false references meant that he had ‘serious reservations as to the reliability of [the appellant] as a witness of truth’. In conclusion the District Judge held that there were not such strong counterbalancing factors as would render extradition disproportionate under article 8.
Further evidence
(i) Evidence from the appellant and his partner
By an application notice dated 26 September 2022 the appellant seeks to rely on statements from him and his partner confirming their current family life, including their baby due to be born in early January 2023. They had resumed living together with the children in the summer 2021. They were both working as health care assistants at the...
To continue reading
Request your trial
-
Alba Iulia Court of Law, Romania v Ferencz Ioan Szabo
...was decided) how the challenge would be formulated. In this regard, I note the comment of Sir Ross Cranston in Bobirnac v Romania [2023] EWHC 700 (Admin) at [43]: “43. What the appellant characterises as inconsistencies in the Romanian approach [to the provision of prison assurances] in th......