Ionut Burghelea v Bucharest Tribunal Romania
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2015 (Admin) |
| Docket Number | Case No: CO/4823/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2015 (Admin)
Mrs Justice McGowan
Case No: CO/4823/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Swain (instructed by Lloyds PR Solicitors) for the Appellant
David Ball (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 8 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 10.30 on 29.07.2022
The appellant, Mr Ionut Burghelea, is a citizen of Romania. He was born on 27 March 1975. 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”).
He appeals against the decision of District Judge Hamilton, (“the judge”), of 21 December 2020, sitting at Westminster Magistrates' Court, ordering the appellant's extradition pursuant to s.21(3) of the 2003 Act.
On 22 January 2020, the respondent, the Bucharest Tribunal, Romania, issued an EAW. It was certified by the National Crime Agency, (“NCA”) on 27 February 2020. It is a conviction warrant. The warrant seeks the extradition of the appellant to serve the whole term of a custodial sentence of three years and eight months for offences of fraud. This is an extradition offence under s.65 of the 2003 Act.
The appeal is now being pursued under s.20(2) of the 2003 Act, leave having been granted by Chamberlain J on the sole ground that the District Judge erred in not discharging the appellant because he was not present at his trial and would not be entitled to a re-trial. Chamberlain J further stayed consideration of leave to appeal on two further grounds under s.2 of the 2003 Act and Article 3 of ECHR, pending a resolution in the case of Marinescu & ors.
The judge found that the appellant was a fugitive, the appellant argues that the finding was in error and, in any event the true test to be applied was whether he was deliberately absent from his trial. It is accepted that two lawyers did appear at various stages of the proceedings: one a state appointed lawyer and the other a privately appointed lawyer, Mr Marian Lungu. A clear dispute of fact arises on the question of representation by Mr Marian Lungu.
The issue of fact is whether the appellant was represented by a lawyer of his choice at his trial. Further whether his desire to attend via a video-link, which was not met, means that even if he had had chosen representation to that point, it ceased to be effective. In addition, it is said that he had no right of appeal because the decision of the court was served on him at an address in Romania, when he was detained in the USA.
This court is asked to consider whether the District Judge erred in his application of s.20 of the 2003 Act and Articles 4a of the Council Framework Decision 2002/584/JHA (“the 2002 Framework Decision”) (as amended by the Council Framework Decision 2009/299/JHA (“the 2009 Framework Decision”), in the context of his findings on the facts.
The appellant appeals pursuant to s.26 of the Act. By s.27(2), this court can only allow an appeal if it is satisfied that the decision under appeal is wrong:
“(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.”
There is also an application by the appellant to adduce fresh evidence. He applies to adduce the evidence, described as an expert report, of Mihail-Iulian Nitu, the lawyer who appeared before the court in Romania at the appeal stage. That application is resisted but the respondent is content that I consider the evidence de bene esse, in the first instance.
Mr Jonathan Swain appeared for the appellant and Mr David Ball for the respondent. I am very grateful to them for their helpful written and oral submissions.
EAW
The offending occurred in 2008 and proceedings began in 2011. The proceedings were suspended and re-started. He was convicted in 2018, that conviction was declared final on 20 December 2019 by the Bucharest Court of Appeal.
He was said to have joined a criminal group engaged in defrauding a bank by the fraudulent purchase of land using forged documents; obtaining a loan by the use of forged documents and using forged identity documents to facilitate the frauds. The loss on the loan was €506,000. He was sentenced to a term of three years and eight months, all of which remains to be served.
It is common ground that the appellant had moved to the USA before proceedings were commenced in 2011 and, at the time of his trial, because he was a protected witness there, was unable to leave without the consent of the USA authorities. He came to the UK on 28 February 2020 and was arrested on arrival.
History of Proceedings in Romania
The request for further information was answered in considerable detail in a reply dated 8 April 2020. That sets out the history of the investigation and proceedings in Romania.
i) A warrant was issued on 12 May 2011 and the appellant was arrested in absentia.
ii) On 16 January 2012 the court in Bucharest found that the conditions for requesting the appellant's extradition from the USA were fulfilled.
iii) There were 14 hearings, between 16 July 2013 and 5 November 2014 at which the appellant was represented by a court appointed lawyer.
iv) 15 further “judicial review (administrative)” hearings were “set” between 25 February 2015 and 19 October 2016, without summoning the parties.
v) Attempts were made in 2016 and 2017 to hold further administrative hearings by video link to allow the appellant to attend remotely.
vi) Romania requested the extradition of the appellant from the USA. He was not extradited.
vii) The appellant appointed a lawyer of his own choice, Marian Lungu and gave him a power of attorney on 13 February 2018. (Blf no. 028962/13.02.2018).
viii) The EAW states that, “At the first hearing held in public session on 2 May 2018, the freely-chosen defence counsel of the defendant Burghelea Ionut, lawyer Marian Lungu, stated that he could not provide additional information regarding the situation of the defendant in the USA, where he had a special status, that of “protected witness”, and that he was unable to provide data regarding a possible desire of the defendant to benefit from the simplified procedure, because he claimed to be innocent, and the communications with him were by phone or using the WhatsApp application.”
ix) At the same time the court considered that it was appropriate to commence proceedings under the “simplified procedure, in the case of admission of guilt”. The court requested that the lawyer communicate with the appellant by telephone, e-mail or WhatsApp to inform him of the procedure in the event of an admission of guilt.
x) At a second hearing on 15 May 2018 the appellant's appointed lawyer told the court that he had discussed matters with the appellant both by telephone and via WhatsApp. It appears that the appellant was interested to discover whether the losses in the case in Romania would all be covered in the proceedings. The lawyer told the court that he had been instructed by telephone by the appellant and if necessary, he could prove to the court that he was employed by the appellant.
xi) At the third hearing 23 May 2018 the appellant's lawyer revealed that since the earlier hearing he had had further discussions with the appellant, again, both by telephone and via WhatsApp. The appellant told him that his civil status documents had expired, and it was therefore impossible for him to provide the notarial declaration (mandate) which had been requested at a previous hearing. The appellant told his lawyer that the American authorities had granted him a ‘new identity’ for an indefinite period.
xii) The lawyer told the court that the appellant wanted to give the notarial declaration (mandate) which had been requested, and also to be heard by the court by means of a video conference.
xiii) A similar account was given by the lawyer on the fourth hearing on 30 May 2018, saying that the appellant had repeated that he wanted to be heard through a video conference.
xiv) At a fifth hearing on 8 June 2018 the court was told that the authorities in the US Ministry of Justice would be able to provide video link facilities in the near future. The lawyer requested that a new hearing date be set as “he was not authorised to present conclusions either on the procedure for the admission of guilt or on the merits of the case, as long as the defendant wanted to be heard before the court”.
xv) On 15 June 2018 there was a sixth hearing. On that occasion the appellant was represented by a court appointed lawyer Constantin George. This appears to have arisen because the appellant's appointed lawyer had refused to present his conclusions on the merits at the previous hearing.
xvi) There was a seventh hearing on 29 June 2018 at which the appellant's appointed lawyer told the court he did not have the documents required to apply to re-docket the case. He told the court that a notary public in Arizona, USA had been appointed and that she was in fact a Romanian citizen.
xvii) At a final hearing on 6 July 2018 the court was informed that the American notary public confirmed that the appellant had attended before her on 15 June 2018 to consider the application of the simplified procedure. It seems from the further information dated 8 April 2020 that he told the American notary public that he wanted to follow the simplified...
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