Municipal Court of Bacäu, Romania v Elena Spirache
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 30 June 2021 |
| Neutral Citation | [2021] EWHC 1778 (Admin) |
| Docket Number | Case No: CO/2902/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1778 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/2902/2020
David Ball (instructed by CPS) for the Appellant
Natasha Draycott (instructed by Sonn Macmillan Walker) for the Respondent
Hearing date: 10 th June 2021
Approved Judgment
Introduction
The Romanian Judicial Authority appeals against the decision of District Judge Ezzat given at Westminster Magistrates' Court on 11 th August 2020 discharging Ms Elena Spirache under s. 20(7) of the Extradition Act 2003.
Hereafter, I will be referring to the parties as “the JA” and “the RP”, and to the District Judge as “the DJ”.
The appeal turns on a narrow issue, but I begin with some relevant factual background.
The EAW in this case was issued on 16 th April 2019 and was certified by the NCA on 10 th August 2019. It is a conviction warrant for two offences, essentially the trafficking of vulnerable women for the purposes of prostitution. For these matters, the RP received a sentence of five years' imprisonment.
According to the terms of the EAW, the RP was not physically present at her trial. It is said that she was personally summonsed at what we know to be her parents' address in Bacäu County, and was represented by “the chosen public defender”. In that sense, as the EAW states, the RP was present through him. On my understanding of the EAW, the hearings took place on 21 st November 2017 and 20 th February 2018, and judgment was handed down on 20 th December 2018. The EAW also alleges that the RP filed an appeal, and this was dismissed by the Bacäu Court of Appeal on 19 th March 2019.
It is not clear from the terms of the warrant whether it is being said that the RP instructed the public defender herself (or via an agent, and with her knowledge); or whether the Romanian authorities did so on her behalf. However, the better, albeit far from conclusive, interpretation of para 4 of the Further Information dated 17 th February 2020 is the latter.
At the hearing before the DJ, the RP raised a number of issues. She failed on four of these and no appeal point arises at this stage. I have adjourned consideration of the RP's out-of-time application for permission to appeal on Article 8 and medical grounds. The RP succeeded on her ground of appeal under s. 20 of the 2003 Act.
Before addressing the District Judge's findings, it is convenient to set out the relevant provisions of s. 20 of the 2003 Act and of the Council Framework Decision of 13 th June 2002, 2002/584/JHA (“the Council Framework Decision”). The latter was amended in 2009.
Relevant Legal Framework
Section 20 the Extradition Act 2003 provides in material part:
“ Case where person has been convicted
(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.”
Section 20 was enacted to give effect to the Council Framework Decision, which provides in material part:
“ Article 4a: Decisions rendered following a trial at which the person did not appear in person
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.”
Articles 90 and 91 of the Romanian Criminal Procedure Code provide:
“90. Mandatory legal assistance provided to a suspect or defendant
Legal assistance is mandatory:
a) when a suspect or defendant is underage, is admitted to a detention centre or an educational centre, when they are detained or arrested, even in a different case, and when in respect of such person a safety measure was ordered remanding them to a medical facility, even in a different case, as well as in other situations established by law;
b) when a judicial body believes that a suspect or defendant could not prepare their defence on their own;
c) during the course of trial, in cases where the law establishes life detention or an imprisonment penalty exceeding 5 years for the committed offence.
91. Court appointed counsels
(1) In the situations listed under Art. 90, if a suspect or defendant did not select a counsel, the judicial body shall take steps to provide them with a court appointed counsel.
…
466. 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.
(2) The following shall be deemed as tried in absentia: the convicted person who was not summoned to appear in court and had not been informed thereof in any other official manner, respectively, the person who even though aware of the criminal proceedings in court, was lawfully absent from the trial of the case and unable to inform the court thereupon. 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 and neither shall the person who, following the notification of the conviction verdict, according to the law, did not file an appeal, waived filing an appeal or withdrew their appeal.
(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 para (1) shall begin from the date when, following their bringing into country, they receive the conviction verdict.”
The Proceedings before the District Judge
The RP and her husband gave evidence before the DJ. She said that she came to the UK in 2008 and had not been back to Romania since. She met her husband in 2010 and had not been in contact with her parents or sister thereafter. Her husband is a Muslim and he has not been accepted by her family. The RP claimed that she had changed her phone number in 2010, and that there has been no communication by this means, or indeed any other, since that year.
The RP's husband gave different evidence. He told the DJ that his wife's parents came to the UK for a brief visit in 2012. They stayed at their home, and after the visit there were “a few problems”.
It is also noteworthy that the RP's sister was convicted in Romania of involvement in the same trafficking offences. She served a period of imprisonment. The RP apparently found out about this when her husband saw the EAW and told her over the phone.
The DJ found that the RP gave untruthful evidence, which in the circumstances was a not altogether unsurprising finding.
On the s. 20 issue the following provisions of the DJ's...
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