Ernest-francisc Bohm v Romanian Judicial Authority
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE IRWIN |
| Judgment Date | 07 October 2011 |
| Neutral Citation | [2011] EWHC 2671 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1163/2011 |
| Date | 07 October 2011 |
[2011] EWHC 2671 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Irwin
CO/1163/2011
Mr Paul Garlick QC and Mr Nicholas Hearn (instructed by Messrs Stuart Miller Solicitors) appeared on behalf of the Appellant
Mr James Hardy QC and Mr Myles Grandison (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
In this case the appellant, Ernest Bohm, was born on 27th July 1954 and is a Romanian citizen. It is alleged that between September and October of 2008 he committed sexual offences involving an underage girl in Romania. On 5th January 2010, he was tried in his absence and a three year prison sentence passed upon him.
On 23rd February 2010, a European Arrest Warrant was issued out of the Petrosani Court in Romania. On 2nd March 2010, the warrant was certified by the Serious Organised Crime Agency, the relevant body within England and Wales for that process. Mr Bohm was arrested in the United Kingdom on 1st July 2010 and on the same date the first hearing of his extradition proceedings took place.
The substantive proceedings then came before the Magistrates' Court, initially on 8th July but following adjourned hearings through to 12th January 2011, and the learned Deputy Senior District Judge gave an order for his extradition. On 7th October he appealed.
Because the sentence exceeded two years' imprisonment, section 20 of the Extradition Act 2003 ("the Act") is engaged. Section 20 applies to circumstances where the extradition request relates to a conviction or convictions recorded in absentia, that is to say when the potential extraditee was not present at the time of the conviction. The section sets out a three stage procedure for dealing with such requests. The first question the judge must ask is whether the defendant was absent, and the second whether he or she deliberately absented himself from the trial which gave rise to the conviction. The third question arises if the judge finds that the defendant did not deliberately absent himself from his trial. The question then is whether, under the law of the requesting state, the defendant would be entitled to a retrial on appeal or a review amounting to a retrial, and for the present purpose I emphasise the word "entitled".
That retrial is defined so as to include expressly the rights conferred under Article 6(3)(c) and (d) of the European Convention on Human Rights. If the answer to that third question, if that third question arises, is "no" or "perhaps" or "in certain circumstances", then that is not enough, the statutory test is not met, and it is agreed by all counsel, who have so helpfully taken part in making written and oral submissions, that the defendant in those circumstances must be discharged.
As the learned Deputy Senior District Judge made clear, in the present appellant's case there is no issue but that he was convicted in his absence and that he did not deliberately absent himself from his trial, and it...
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...There is a fundamental difference between the two. As Irwin J (as he then was) said in Bohm v Romanian Judicial Authority [2011] EWHC 2671 (Admin), [5], in relation to re-trials, if the answer to the defendant's entitlement to a re-trial under the foreign law is ‘no’ or ‘perhaps’ or ‘in cer......
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R Vullnet Mucelli (Claimantand) The Secretary of State for the Home Department (Defendant) Fair Trials International (Intervener)
...that the person would have the rights conferred under Article 6(3)(c) and (d) of the Convention. In Bohm v Romanian Judicial Authority [2011] EWHC 2671, Irwin J held that in relation to the third issue, if the answer was "no" or "perhaps" or "in certain circumstances", that would not be eno......
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The Lord Advocate Against Garnet Douglas Black
...that the person would have the rights conferred under Article 6(3)(c) and (d) of the Convention. In Bohm v Romanian Judicial Authority [2011] EWHC 2671, Irwin J held that in relation to the third issue, if the answer was ‘no’ or ‘perhaps’ or ‘in certain circumstances’, that would not be eno......
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Ionut-Bogdan Merticariu v Judecatoria Arad, Romania
...to a retrial has to be automatic and is inconsistent with the existence of a discretion whether to grant a retrial: Bohm v Romania [2011] EWHC 2671 (Admin). (c) A requested person may have the right to a retrial even if the domestic law of the requesting state requires him to take “procedu......