Marius-Mihai Nisipeanu v District Court of Dolj, Romania

Hearing date: 13 February 2024

Approved Judgment

This is an appeal against the order of District Judge (Magistrates' Court) Sarah-Jane Griffiths (“the Judge”) on 17 February 2023 that the appellant be extradited to Romania under Part 1 of the Extradition Act 2003 (“the Act”).

The order for extradition was made in response to a Warrant issued on 20 July 2020 and certified by the National Crime Agency on 26 August 2021 (“the Warrant”). It was pursuant to an order of the Court of Appeal Craiova which became final on 9 July 2020. The appellant was arrested on 8 September 2022 and appeared before the Westminster Magistrates Court the following day. He was initially remanded in custody but on 20 September 2022 he was granted conditional bail and remained on bail throughout the proceedings.

The Warrant was a conviction warrant which requested the appellant to serve a sentence of 4 years imprisonment, of which 3 years 10 months and 11 days remain to be served as a result of time initially spent on remand in these proceedings.

The Warrant relates to convictions for three offences, of which the third was discharged by the Judge ordering extradition, because it did not fulfil the dual criminality test in section 10 and section 65 of the Act.

i) Offence 1: On 28 March 2012 and 2 April 2012, in Craiova, the appellant sold three amounts of cannabis, namely 0.68g, 0.21g and 0.86g, for the sum of 100 lei, 120 lei, and 100 lei respectively. 100 lei is equivalent to about £17 in pounds sterling at current exchange rates.

ii) Offence 2: On 23 February 2016 at the appellant's home address in Craiova, he had a bottle containing 20ml of methadone, which was found during a search of his home address.

iii) Offence 3: On 23 February 2016, in Craiova, the appellant stored 1.45g of vegetal fragments, packed in plastic foil, in which 5F-MDMB-PINACA was found and 2.73g of AB-CHIMINACA, both of which are psychoactive substances. Possession of these substances was not illegal under UK law at the material time, which is why this offence did not fulfil the dual criminality test. They were not substances scheduled in the Misuse of Drugs Act 1971 and the relevant provisions of the Psychoactive Drugs Act 2016 were not yet in force.

The Perfected Grounds of Appeal raise the following issues:

i) Whether the extradition is barred by section 17 of the Act by reason of specialty, arising out of the fact that a single sentence has been imposed which includes a sentence for Offence 3, in respect of which extradition has not been ordered.

ii) Whether the extradition is barred by section 2 of the Act by reason of lack of particularity.

iii) Whether the Judge was wrong not to refuse extradition in view of the effect of Article 8 and the autism of the appellant's son on the balancing exercise. This includes an issue about whether fresh evidence should be admitted and whether the effect of the fresh evidence is that extradition should not be ordered.

Ground 1 – specialty

Section 17 of the Act provides, so far as material, as follows:

“(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.

(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—

(a) the offence is one falling within subsection (3), or

(b) the condition in subsection (4) is satisfied.

(3) The offences are—

(a) the offence in respect of which the person is extradited;

(b) an extradition offence disclosed by the same facts as that offence;

(c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;

(d) an offence which is not punishable with imprisonment or another form of detention;

(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;

(f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.

(4) The condition is that the person is given an opportunity to leave the category 1 territory and—

(a) he does not do so before the end of the permitted period, or

(b) if he does so before the end of the permitted period, he returns there.

(5) The permitted period is 45 days starting with the day on which the person arrives in the category 1 territory.”

The appellant argues that the impact of the principle of res judicata under the law of Romania means that the single sentence for all three offences cannot be reviewed or disaggregated under Article 598 of the Romanian Code of Criminal Procedure. Hence, it is argued that the appellant's specialty rights under section 17 of the Act are not adequately protected. This is not a point that was argued before the Judge but it is an issue I may consider on appeal under section 27(4)(a) of the Act.

Article 598 of the Romanian Code of Criminal Procedure has not been placed in evidence although, as a matter of foreign law, it does have to be proved by evidence. Nevertheless, I have been referred to recent authority which has satisfied me that this Ground is not well-founded on the merits, leaving aside that technical point.

The operation of the specialty provisions in section 17 of the Act was summarised by the Divisional Court (Coulson LJ and Holgate J) in R (Mihaylov) v Bulgaria [2022] EWHC 908 (Admin) at paras 17 – 18 as follows:

“17. Specialty, as set out in Article 27 of the Framework Decision, is the rule whereby a person surrendered under an EAW [European Arrest Warrant] may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender, other than that for which he or she was surrendered. Specialty can be infringed in two ways: where the individual is extradited and then subjected to unrelated charges or proceedings; or where the individual is prosecuted for enhanced charges based upon the conduct which gave rise to the EAW in the first place. It appears that it is the first possibility to which Ground 1 goes; there is no suggestion that the appellant in the present case faces enhanced charges arising out of his driving offence.

18. There are a number of well-established principles:

a) There is a strong presumption that EU Members States will respect specialty rights in accordance with their international obligations: see the judgment of Dyson LJ (as he then was) at [67]–[68] in Ruiz and others v Central Court of Criminal Proceedings No5 of the National Court of Madrid [2008] 1 WLR 2798 and Brodziak (citation below) at [46].

b) Accordingly, this court will presume that the State in question will act in compliance with those obligations unless there is compelling evidence to the contrary: see Arronategui v 1st, 2nd, 3rd and 4th Sections of the National High Court of Madrid, Spain and others [2012] EWHC 1170 (Admin) at [47].

c) The court must be satisfied that there are practical and effective arrangements in the requesting territory to ensure that specialty will not be infringed: see Farid Hilali v Central Court of Criminal Proceedings No.5 Madrid [2006] EWHC 1239 (Admin) at [46].

d) This primarily goes to the substantive law operating in the requesting territory. As Scott Baker LJ pointed out at [49] of Hilali, the basic question was whether the rule of specialty was catered for in the law of the requesting territory. The same emphasis was provided by Dyson LJ in Ruiz at [67]–[68]. He said that what was important was that Spain (the State in question in that case) had incorporated the specialty rule into their law; that there was no compelling evidence that the Spanish authorities would act in breach of the rule; and that the requested person had a remedy in domestic law.

e) The burden is therefore on the requested person to show that the presumption has been rebutted in the particular case and that appropriate speciality arrangements were not in place: Brodziak and others v Circuit Court in Warsaw, Poland [2013] EWHC 3394 at [42].”

The key provisions of Article 598 of the Romanian Code of Criminal Procedure, and their effect, were set out and commented upon by the Divisional Court (Holroyde LJ and Swift J) in Enasoaie v Court of Bacau, Romania [2021] EWHC 69 (Admin) at paras 28 and 29 as follows:

“28. On 16 October 2020 the CPS asked specific questions as to whether violation of the speciality rule would be considered an obstacle to the enforcement of a judgment, and whether the remedy of a challenge to the enforcement would be available in this case. The questions related to Article 598 of the Criminal Procedure Code (“Article 598”) which, so far as material, provides:

“Challenges against enforcement

(1) Challenges against enforcement of criminal sentences may be filed in the following situations:

…

(c) when ambiguities occur in respect of the sentence enforcement or when obstacles to enforcement occur; …

(2) … challenges shall be filed … in the situation set under para (1) letter (c), with the court having returned the sentence...