Ionut-Bogdan Merticariu v Judecatoria Arad, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 17 June 2022 |
| Neutral Citation | [2022] EWHC 1507 (Admin) |
| Docket Number | Case No: CO/3985/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1507 (Admin)
Mr Justice Chamberlain
Case No: CO/3985/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Malcolm Hawkes (instructed by National Legal Service) for the Appellant
Stefan Hyman (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 8 June 2022
Approved Judgment
Introduction
Ionut-Bogdan Merticariu is sought pursuant to a European arrest warrant (EAW) issued on 7 May 2019 and certified on 8 July 2019. The EAW seeks his surrender to serve a sentence imposed on 11 April 2019 for a burglary committed on 5 March 2016. The burglary was of commercial premises and the appellant, acting with others, entered using a key which they had as employees of the business concerned. Goods to the value of EUR 1,500 were originally taken, but some of these were later returned.
The appellant was arrested pursuant to the EAW on 25 September 2019, with the consequence that, under the UK-EU Withdrawal Agreement, the provisions of Framework Decision 2002/584/JHA as amended (the Framework Decision) apply.
After a hearing at Westminster Magistrates' Court, the appellant's extradition was ordered by District Judge Ezzat (as he then was) for reasons contained in a judgment handed down on 26 October 2021.
Permission to appeal was granted by Morris J on the papers on ground 1 (right of retrial) and by Holman J after a hearing on grounds 2 (Article 8 and proportionality) and 3 (passage of time and oppression).
Ground 1: Right to a retrial
The domestic statute
Section 20 of the Extradition Act 2003 (the 2003 Act) is headed “Case where person has been convicted”. It provides in material part as follows:
“(1) If the judge is required to proceed under this section (by virtue of section 11) 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 21.
(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 21.
(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 21.
(7) If the judge decides that question in the negative he must order the person's discharge.”
The judge must be satisfied that the requested person was convicted in his presence (s. 20(1)), failing which that he deliberately absented himself from his trial (s. 20(3)), failing which that he would be entitled to a retrial or (on appeal) to a review amounting to a retrial (s. 20(5)).
On each of these questions, the requesting authority bears the burden of proving the relevant matter to the criminal standard: s. 206 of the 2003 Act.
The Framework Decision
Article 4 of the Framework Decision sets out a number of optional grounds on which a state may decline to execute an EAW. In 2009, Article 4a was inserted. Insofar as material, it provides as follows:
“1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
(a) in due time:
(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
and
(ii) was informed that a decision may be handed down if he or she
does not appear for the trial;
or
(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
or
(c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed:
(i) expressly stated that he or she does not contest the decision;
or
(ii) did not request a retrial or appeal within the applicable time frame;
or
(d) was not personally served with the decision but:
(i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed;
and
(ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.”
EAWs are prepared on a proforma, which reflects the provisions of Article 4a.
The EAW in this case
In this case, the EAW has an “X” next to box 3.2, which says that “being aware of the scheduled trial, he had instructed a lawyer who was either appointed by the person concerned or ex officio to defend him at the trial, and was indeed defended by that lawyer at the trial”, indicating that, in the view of the requesting judicial authority, this was a case to which Article 4a(1)(b) of the Framework Decision applied.
There is another box, 3.4, which does not have an “X”, but says this:
“the person was not personally served with the decision but:
— decision will be personally served without delay after surrendering; and
— when served with the decision, the person will be expressly informed about the right to a retrial or an appeal, in which has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined and which may lead to the cancellation of the original decision; and the person will be informed of the time he has to request a retrial or appeal, which is 10 days.”
So, the judicial authority had the opportunity to indicate that Article 4a(1)(d) of the Framework Decision applied, but did not do so.
In box 4, information is required to be provided if any of boxes 3.1b, 3. 2 or 3.3 is checked. The information is as follows:
“the defendant Bogdan Ionut-Merticariu was not present in court during the trial, he was represented at the hearings by public defender appointed by the court.”
Later on in the EAW, there is reference to a “legal pledge” in these terms:
“According to Article 466 Penal Procedure Code: Reopening criminal proceedings in case of an in absentia trial of the convicted person par. (3) ‘In the case of the person with a final conviction, tried in absentia, related to whom a foreign state ordered extradition or surrender based on the European arrest warrant, the time frame provided under par. (1) shall begin from the date when, following their bringing into country, they receive the conviction verdict.’.”
Article 466 is not spelled out in full in the EAW, but it is common ground that its material provisions include those cited by the Divisional Court in BP v Romania [2015] EWHC 3417 (Admin), at [38]:
“ Reopening criminal proceedings in case of an in absentia trial of the convicted person
(1) The person with a final conviction, who was tried in absentia, may apply for the criminal proceedings to be reopened no later than one month since the day when informed, through any official notification, that criminal proceedings took place in court against them.
…
The convicted person who had appointed a retained counsel or a representative shall not be deemed tried in absentia if the latter appeared at any time during the criminal proceedings in court…
(4) The criminal proceedings in court may not be reopened when the convicted person had applied to be tried in absentia.”
The District Judge's judgment
The District Judge noted at [15] of his judgment that, despite box 3.2 being checked, no evidence had been provided on how the appellant had been informed of the trial and the judicial authority “do not appear to be arguing that the RP was properly informed”. The respondent did not submit that the District Judge could be satisfied to the criminal standard that the appellant had been properly informed of the proceedings. Thus, as Mr Hyman expressly confirmed in his oral submissions before me, there is no challenge to the District Judge's finding at [16] that:
“I cannot be satisfied on the evidence before the court that the RP was properly informed of proceedings. Therefore, I cannot and do not make a finding that the RP was deliberately absent from proceedings. Consideration must now be given as to whether the RP has a right to a retrial.”
It is clear, therefore, that the District Judge had reached the third of the questions in s. 20 (that posed by s. 20(5)).
On this question, the District Judge noted that box 3.4 had not been checked. It was common ground that, despite the “legal pledge” and the reference to Article 466 of the Romanian Code of Criminal Procedure, the EAW did not clearly show that the appellant would have the right to a retrial. The District Judge provisionally agreed...
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