Elena Andreea Grecu v Gorj County Court (Romania)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2056 (Admin) |
| Docket Number | Case No: CO/3854/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2056 (Admin)
THE HONOURABLE Mrs Justice Thornton DBE
Case No: CO/3854/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Henley (instructed by AM International Solicitors) for the Claimant
David Ball (instructed by the CPS) for the Defendant
Hearing date: 19 th July 2022
Approved Judgment
This judgment was handed down by the Judge 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 15:00pm on Friday 29 th July 2022.
The Hon .
Introduction
This is an appeal against an order, made on 5 November 2021, for the Appellant's extradition to Romania to serve a sentence of seven years six months, for convictions relating to the trafficking of two teenage girls from Romania to Italy for sexual exploitation.
The grounds of appeal before the Court are that extradition would be an unjustified interference with the Appellant's rights under Articles 4 and 8 of the European Convention on Human Rights (ECHR). An appeal based on Article 3 of the Convention is stayed pending the outcome of the decision of the Divisional Court in Marinescu, Rusu and Varlan v Romania (CO/4624/2020, CO/4507/2020, CO/4353/2020).
Factual Background
On 6 September 2015, the Appellant, with the help of others, “recruited, guided, transported and transferred” a 15-year-old girl over the Romanian border to Italy using forged identification documents. On 2 December 2015 the Appellant did the same, this time with a 16-year-old girl. The purpose of transporting the girls was “their sexual exploitation in Italy.” As part of the offending the Appellant was involved in the production of two counterfeit identity documents for the 15-year-old, and two counterfeit powers of attorney for the 16-year-old.
The Appellant was subsequently convicted of having “initiated and set up a criminal group” with two others to traffic people, including minors, for sexual exploitation. The Appellant was present at the trial, after which a sentence of 6 years was passed, on 21 January 2019, by Gorj County Court.
The Appellant was also present at the hearing of the case on appeal, represented by a lawyer of her choice. Her appeal was dismissed by the Craoiva Court of Appeal on 20 February 2020 and her sentence was increased from 6 years to 7 years 6 months. The sentence of her co-defendant, her brother, Costinel Constantin Breazu, was reduced to 6 years. The Appellant's other co-defendant, her ex-partner, Stamiou Dumitru Daniel, was sentenced to 14 years in custody.
The Respondent seeks the Appellant's extradition on the basis of a European Arrest Warrant issued on 4 March 2020 and certified by the National Crime Agency on 15 January 2021.
On 19 January 2021 the Appellant was arrested in the UK. Whilst in custody at HMP Bronzefield, she was referred to the Home Office's National Referral Mechanism, a framework for identifying potential victims of modern slavery. On 16 July 2021 the Single Competent Authority issued a decision there were reasonable grounds to conclude the Appellant is a victim of modern slavery.
An Extradition hearing was held on 15 October 2021. On 5 November 2021, her extradition was ordered.
On 10 November 2021, the Appellant lodged an appeal. Permission was refused on the papers. The Appellant renewed her appeal and applied to adduce fresh evidence, which included an unsigned and undated statement from the Appellant's current partner stating that in the event she is extradited he will not be a carer for her son Antonio Stanoiu and intends to leave him in the care of the local authority.
At an oral permission hearing on 8 April 2022, permission was granted on the grounds that extradition would not be compatible with the Appellant's rights under Articles 3, 4 and 8 of the European Convention on Human Rights (s21 Extradition Act 2003).
By a decision dated 13 June 2022, the Single Competent Authority under the national referral mechanism for modern slavery decided that there are not currently conclusive grounds to identify the Appellant as a victim of modern slavery.
Shortly before the appeal hearing on 19 July 2022, the Appellant applied to stay her appeal on Article 3 ECHR pending the outcome of the decision of the Divisional Court in Marinescu, Rusu and Varlan v Romania (CO/4624/2020, CO/4507/2020, CO/4353/2020). The Respondent had no objection to a stay and accordingly the substantive hearing proceeded on the basis that the issues before the Court are whether the District Judge was wrong to order extradition on the basis of Article 4 and Article 8 ECHR.
Legal framework
Test for a successful appeal
The High Court can only allow an appeal against an order for extradition if the first instance judge, “ought to have decided a question before him…differently” or evidence is available that was not available at the extradition hearing, which would have required the first instance judge to discharge the extradition order (s27(2) Extradition Act 2003). The test is frequently said to be that the decision of the District Judge can only be successfully challenged if it is demonstrated to be “wrong” ( USA v Giese (No 1) [2015] EWHC 2733 (Admin) §15); Love v USA [2018] EWHC 172 (Admin), §26; Surico v Italy [2018] EWHC 401 (Admin), §27)).
Article 4 ECHR
Article 4 of the ECHR provides that:
1 No one shall be held in slavery or servitude.
2 No one shall be required to perform forced or compulsory labour.
The UK is a signatory to the European Convention Against Trafficking (“ECAT”), which includes an obligation on Contracting states to identify potential and actual victims of “modern slavery”. Modern slavery includes human trafficking, slavery, servitude and forced labour. The UK has chosen to implement its obligation by the introduction of the National Referral Mechanism (“NRM”), a framework for identifying and referring potential victims of modern slavery and ensuring they receive appropriate support. Law enforcement agencies, local authorities and immigration officials and other public authorities who encounter potential victims of modern slavery are required to refer those individuals to the NRM. Following a referral, decision-making is carried out by the “Single Competent Authority” in two stages. The first stage is a decision whether the decision-maker suspects but cannot prove that the individual is a victim of modern slavery. This is referred to as a “reasonable grounds” decision. If that decision is positive, the second stage is a “conclusive grounds” decision as to whether, on the balance of probabilities, the individual is a victim of modern slavery. A conclusive grounds decision requires evidence gathering. A positive conclusive grounds decision could provide a basis for the individual to make applications under the immigration system, for example for asylum, leave to remain and/or family reunion ( R (BVN) v Secretary of State for the Home Department [2022] EWHC 1159 (Admin), §3)).
Article 8 ECHR
Article 8 ECHR provides that:
“ 1) Everyone has the right to respect for his private and family life, his home and his correspondence
2) There shall be no interference by a public authority with the exercise of this right except such is in accordance with the law and is necessary in a democratic society in the interests of national security public safety or the economic well being of the country for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others.”
The question raised under Article 8 is whether the interference with the private and family life of the person whose extradition is sought is outweighed by the public interest in extradition. There is a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; the UK should honour its international obligations and should not become a safe haven for fugitives. That public interest will always carry great weight, but the weight varies according to the nature and seriousness of the crime involved. Family life will usually form part of the matters considered by the Court in the requesting state in sentencing. After finding the facts the first instance judge should ordinarily set out the factors favouring extradition and those militating against it in a ‘balance sheet’ before coming to a conclusion on whether to order extradition. The Appeal Court should only interfere if the first instance Court made the wrong decision ( HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 328 §8) ( Celinski v Poland [2015] EWHC 1274 (Admin); [2016] 1 WLR 551 §5–13).
Fresh evidence
In Hungary v Fenyvesi and another [2009] EWHC 231 Admin, it was said that the test in the Extradition Act that evidence is available on appeal that was not available at the extradition hearing is ‘ a strict test consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the Court that proposed evidence was not available should normally serve a witness statement explaining why it was not available’ (32). The threshold is high. The Court must be satisfied that the evidence would have resulted in the judge deciding the relevant question differently. In short, the evidence must be decisive (35).
The decision of the District Judge:
In coming to his decision to order extradition, the District...
To continue reading
Request your trial
-
The King on the application of MA v Secretary of State for Foreign, Commonwealth and Development Affairs
...AZ) v Secretary of State for the Home Department [2022] EWHC 1402 (Admin) and R (JZ) v Secretary of State for the Home Department [2022] EWHC 2056 (Admin) Lang J and Hill J, respectively, referred to an ARAP application made by “Judge W”, a judge at the Anti-Terrorism Court in Kabul (see ......