Paul Cretu v Iasi Tribunal, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 23 June 2021 |
| Neutral Citation | [2021] EWHC 1693 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3984/2020 |
| Date | 23 June 2021 |
[2021] EWHC 1693 (Admin)
Mr Justice Johnson
Case No: CO/3984/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Graeme Hall (instructed by Taylor Rose MW) for the Appellant
Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 15 June 2021
Approved Judgment
The Respondent seeks the Appellant's extradition to serve a sentence of 14 years and 10 months imposed for sex offences against children. The Appellant opposes extradition because he says:
(1) he has been convicted in his absence and has no right to a re-trial, so he should have been discharged under section 20 Extradition Act 2003;
(2) extradition is incompatible with Article 3 of the European Convention on Human Rights (“ECHR”), having regard to the poor conditions at Rahova prison in Bucharest where the Appellant will spend 21 days in quarantine at the start of his sentence, before being transferred to another prison.
On 26 October 2020 District Judge Baraitser rejected each of these grounds of opposition and ordered the Appellant's extradition. The Appellant appeals against that order and contends that the District Judge should have upheld each of his two grounds for resisting extradition.
The European Arrest Warrant and Respondent's Further Information
European Arrest Warrant
The Appellant's extradition is sought pursuant to a European Arrest Warrant which was issued on 14 October 2016. The Warrant states that the Appellant was convicted on 29 January 2016 and that an appeal was dismissed on 3 October 2016.
Box d) on the warrant states “Indicate if the person appeared in person at the trial resulting in the decision.” Underneath that box the following completed checkbox form appears:
“1. [X] Yes, the person appeared in person at the trial resulting in the decision.
2. [ ] No, the person did not appear in person at the trial resulting in the decision.
3. If you have ticked the box under point 2, please confirm the existence of one of the following:
…
3.2 [X] being aware of the scheduled trial, the person 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 the counsellor at the trial;
…
3.4 [X] the person was not personally served with the decision, but:
— the person will be personally served with this decision without delay after the surrender; and
— when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she 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
— the person will be informed of the time frame within which he or she has to request a retrial or appeal, according to Article 467 of the new Code of Criminal Procedure which will be 1 (one) month.”
Information as to trial
Further information was provided by the Respondent in December 2019, in response to questions asked by the CPS. This stated that the Appellant had not been present at his trial, that he had been legally represented by two lawyers of his own choice, and that he had been aware of the representatives acting on his behalf. It also stated that he had been duly summoned throughout the entire criminal trial, and that receipt of the summons was signed by one of the Appellant's relatives. It stated that the Appellant “may demand a re-trial following his surrender.”
The Appellant served an expert report from a Dr Radu Chirita which suggests that any request for a re-trial will be refused. In the light of this evidence the Respondent was asked to provide further information. In response, the Respondent stated that the Appellant would be able to file a motion for a retrial under Article 466 of Romania's Criminal Procedure Code and this would then be considered by the court.
Assurances as to prison conditions
A letter was sent from the Respondent to answer questions raised about the conditions in which the Appellant will be detained. In respect of the first 21 days of detention it said the Appellant will be placed in Rahova Prison in Bucharest in a room that provides the Appellant with a minimum personal space of 3 square metres. This was, and is, treated by all parties as a formal assurance (“the first assurance”).
On 14 October 2020 the following additional information was provided:
“The quarantine and observation period covers … a period of 21 days in a room which shall ensure a minimum individual space of 3 square meters… According with the applicable legislation, each sentenced person has the right to walk every day in the open, at least one hour a day, plus, as case might be, the time dedicated to the performance of educational activities.
In this period detainees exercise all the rights provided for by the legislation on the execution of penalties and undergo the program for preparation for the deprivation of liberty. Convicted persons are accommodated in separate rooms, depending on gender and age, as well as on other legal requirements, internal rules or safety regulations.
In the quarantine and observation period various activities in the field of initial assessment and intervention are conducted, medical checks are performed and information and research measures are ordered…
Furthermore, activities are conducted which are meant to help inmates get familiar with the regulations concerning order. discipline, behaviour, interaction with other persons, involving individual or collective activities performed by the prison administration.
…
…the National Administration of Penitenciaries can safeguard a minimum individual space of 3 square meters for the entire duration of the penalty enforcement, including the bed and furniture belonging to it, not including however the lavatory.”
Again, this information was and is treated by all parties as a formal assurance (“the second assurance”).
The hearing in the Westminster Magistrates' Court
The Appellant was arrested on 10 August 2019, and the initial hearing took place on the same day. The District Judge sets out in her judgment what she describes as the “unfortunate history” of the proceedings. There were numerous hearings, including the case being listed for a final hearing on 5 occasions before the hearing was effective.
On 26 May 2020 the substantive hearing commenced. On that day no submissions were made about Article 3 ECHR and the hearing was adjourned part heard. Shortly before the hearing, the District Judge was provided with a copy of the decision in Gheorghe v Romania [2020] EWHC 722 (Admin) (see paragraphs 58 – 60 below). Following the hearing on 26 May 2020, and after considering Gheorghe, the District Judge took the view (which she communicated to the parties) that it was necessary to seek further information about Rahova prison. She informed the parties of her wish that the Respondent be asked:
“Please provide the court with information regarding the existing conditions and the prison regime at Rahova Penitentiary, in particular, regarding the availability of time a prisoner can spend outside their cell, the ventilation, natural light and air, adequacy of heating arrangements, the use of private toilet facilities and compliance with basic sanitary and hygiene requirements at the prison.”
In the event, counsel for the Respondent was then able to provide the District Judge with the information covering these matters that had been provided to the court in Gheorghe (“the Gheorghe material”) (see paragraph 59 below). The substantive hearing resumed on 12 June 2020. There is no transcript of that hearing or any ruling given at that hearing, and there is not complete agreement between counsel as to what was said. It is, however, clear that the District Judge considered it necessary to “make a formal request in identical terms to those in the Gheorghe case.” On the Appellant's case this was because the District Judge did not consider that the Gheorghe material could automatically be “read over” to the present case (absent agreement from the Appellant, which was not forthcoming). This is consistent with the District Judge treating the Gheorghe material as amounting to an assurance, and taking the view that it could not therefore be treated as if it were evidence in the present case (see United States of America v Giese [2015] EWHC 3658 (Admin) [2016] 4 WLR 10 per Sir Richard Aikens at [14] and Government of India v Chawla [2018] EWHC 1050 (Admin) per Dingemans J at [31]). That explains why the District Judge considered it necessary to make the identical request to that made in Gheorghe, even though the court was in possession of the Gheorge material. The District Judge set directions for that further request to be sent, with the reply to be provided by 10 July 2020 and any rebuttal evidence to be provided by 14 August 2020.
A response to the District Judge's request for further information was eventually provided on 14 October 2020 (see paragraph 8 above). That response is in quite different terms from the Gheorghe material. It does not cover all of the issues that had been raised by Steyn J in Gheorghe, or by the District Judge in the present case. It deals with the time that a prisoner can spend outside their cell, but not with “ventilation, natural light and air, adequacy of heating arrangements, the use of private toilet facilities and compliance with basic sanitary and hygiene requirements at the prison.”
The adjourned hearing resumed on 20 October 2020 and the hearing was completed on the same day.
The Appellant did not give evidence. His mother did. In her written...
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