Popoviciu v Curtea De Apel Bucharest (Romania)

JurisdictionEngland & Wales
JudgeLord Lloyd-JOnes,Lord Hodge,Lord Kitchin,Lord Hamblen,Lord Stephens
Judgment Date08 November 2023
Neutral Citation[2023] UKSC 39
CourtSupreme Court
Popoviciu
(Respondent)
and
Curtea De Apel Bucharest (Romania)
(Appellant)

[2023] UKSC 39

before

Lord Hodge, Deputy President

Lord Lloyd-Jones

Lord Kitchin

Lord Hamblen

Lord Stephens

Supreme Court

Michaelmas Term

On appeal from: [2021] EWHC 1584

Appellant

Mark Summers KC

Rachel Kapila

(Instructed by CPS Appeals & Review Unit (Westminster))

Respondent

Edward Fitzgerald KC

Peter Caldwell

Graeme Hall

(Instructed by Boutique Law)

Heard on 16 and 17 May 2023

Lord Lloyd-JOnes ( with whom Lord Hodge, Lord Kitchin, Lord Hamblen and Lord Stephens agree):

Introduction
1

The Court of Appeal of Bucharest, First Criminal Section, Romania (“the appellant”) sought the extradition of Mr Gabriel Popoviciu (“the respondent”) pursuant to a European Arrest Warrant dated 3 August 2017.

2

An extradition hearing took place before District Judge Zani at the Westminster Magistrates' Court in October 2018 and was completed in April 2019. On 12 July 2019 District Judge Zani ordered the respondent's return to Romania.

3

The respondent appealed to the High Court against the order for his extradition. On 11 June 2021 the High Court (Holroyde LJ and Jay J) allowed the respondent's appeal pursuant to section 27(1)(a) of the Extradition Act 2003 (‘the 2003 Act’), discharged the respondent pursuant to section 27(5)(a) and quashed the order for the respondent's extradition to Romania pursuant to section 27(5)(b): [2021] EWHC 1584 (Admin).

4

The High Court having certified a point of law of general public importance but having refused permission to appeal to the Supreme Court, on 27 May 2022 the Supreme Court granted permission to appeal. The hearing of the appeal took place on 16 and 17 May 2023.

5

Following the completion of the hearing of the appeal, on 13 July 2023 the Supreme Court was informed by the designated authority that the European Arrest Warrant dated 3 August 2017 had been withdrawn. In those circumstances, the Supreme Court made an order dated 24 July 2023 pursuant to section 43(4) dismissing the appeal. The Supreme Court has, nevertheless, decided to deliver its judgment on this appeal, in order to answer the certified question and to address other important issues which arise.

Proceedings in Romania
6

The respondent was accused in Romania of conspiring with Alecu Ioan Nicolae (‘Alecu’) to transfer a plot of land known as Baneasa Farm from state ownership to a private company, SC Log Trans SA, in which he had an interest. Baneasa Farm was occupied by the University of Agricultural Sciences and Veterinary Medicine, Bucharest. Alecu was the Rector of that university. It was alleged that the respondent and Alecu had made false promises to the Senate of the University to obtain the transfer of the land in 2003–2004, with a view to building apartments on it.

7

In February 2005, a witness, Becali Gheorge (‘Becali’), made complaints to the Public Prosecutor about the transfer, and requested the investigation of the respondent and Alecu. In June 2006, Becali made statements against the respondent and others. An investigation by the National Anticorruption Directorate (‘DNA’) began in October 2006 (File number 206/2006). The Public Prosecutor's Office attached to the High Court of Cassation and Justice (‘HCCJ’), Romania's Supreme Court, also opened a file (File 1481/2006). In February 2008, an HCCJ prosecutor declined to initiate a prosecution against the respondent in File 1481/2006. In July 2008, however, the DNA prosecutors with conduct of File 206/2006, requested the Chief Prosecutor of the HCCJ to annul that decision. The HCCJ Chief Prosecutor did so, and then relinquished jurisdiction in favour of the DNA.

8

In November 2008, a police officer, Motoc Ion (‘Motoc’), was authorised to take part in the DNA investigation of the respondent, File 206/2006. It is alleged that the respondent, with the assistance of others, bribed Motoc so that he would not properly perform his duty of investigating the respondent and Alecu. The respondent gave a statement to the DNA on 12 March 2009. Shortly thereafter, the DNA started criminal investigations of him in connection with his being an accomplice to an offence of abuse of office by Alecu, and of bribery of Motoc. He was arrested on 24 March 2009 and remanded in custody overnight before being granted bail by the Bucharest Court of Appeal. In June 2009, Becali declined to answer questions in relation to one aspect of the investigation of the respondent. On 21 December 2012, the DNA issued an indictment against the respondent and others, under case number 9577/2/2012.

9

The trial, in the Bucharest Court of Appeal, was heard by Judge Ion-Tudoran Corneliu-Bogdan (‘Judge Tudoran’). There were 11 accused. One of the issues was whether the University was entitled to transfer Baneasa Farm, or whether it was the property of the State. The trial began in January 2013. The respondent was represented throughout, and was present at all or most of the hearings.

10

At a hearing in October 2014, Becali refused to testify. In answer to questions by the prosecutor, he confirmed that he had signed his earlier statement, but said he no longer made any declaration against any person. On 15 February 2016, Becali provided a further statement, in which he said that he no longer maintained his complaint and did not remember what he had said in his initial statement. He had thought that the respondent and Alecu were in cahoots, but he did not have any evidence of that. Three days later, the DNA commenced a prosecution of Becali for perjury in respect of his retraction of his original statement. In March 2016 Becali withdrew that retraction, saying that he now remembered ‘how things really stood back then’, and confirmed his original statement of June 2006. Later, in March 2016, Becali gave oral evidence at the respondent's trial. In April 2016, the DNA discontinued the prosecution against him for perjury.

11

After receipt of written submissions, Judge Tudoran delivered his written judgment on 23 June 2016. Translated into English, it is 436 pages long. A substantial proportion of the first 300 pages comprises a recital of the prosecution case, followed by details of the many documents which had been referred to and considered. Judge Tudoran then reminded himself that under the Romanian Constitution, a person is considered innocent “until the criminal decision for his/her conviction remains final”. He set out his findings, including that the contract between the University and SC Log Trans SA was illegal and that the respondent had been motivated by the pursuit of considerable profits. He concluded that “[t]he defendants did not prove in any way their claims, and the guilt which results from the assembly of the probatory material administered in the cause is certain and unequivocal”. He found all the accused guilty of the offences with which they were charged.

12

In his judgment Judge Tudoran set out, briefly, his conclusions about the individual defendants. He found the respondent to have knowingly and intentionally broken the law and to have been the person who initiated the crimes.

13

The respondent was sentenced to a total term of 9 years' imprisonment.

14

Related civil proceedings, under File no 4445/2016 were also before the court. Judge Tudoran decided, however, that those proceedings should be dealt with separately, as the time taken to resolve them would otherwise lead to ‘the surpassing of the term for the criminal action’.

15

The respondent appealed to the HCCJ. On 2 August 2017, a panel of judges (Judges Dascalu, Pistol and Arghir) delivered a written judgment (389 pages in English translation). They dismissed the appeal against conviction, but allowed the appeal against sentence to the extent of reducing the total sentence to 7 years' imprisonment. Amongst other findings, the HCCJ held that Judge Tudoran's decision was adequately reasoned and that his severance of the civil proceedings was both lawful and appropriate.

The European Arrest Warrant and the extradition hearing
16

On 2 August 2017 a domestic warrant of arrest was issued against the respondent in Romania in order to enforce his (now final) sentence. On the following day, a European Arrest Warrant was issued by Judge Andras of the Bucharest Court of Appeal. It was subsequently certified in the United Kingdom by the National Crime Agency. The respondent was arrested in the United Kingdom under Part 1 of the 2003 Act on 14 August 2017.

17

While the extradition proceedings were current, the respondent made the following unsuccessful applications in Romania.

(1) He applied to re-open the HCCJ decision of 2 August 2017, on the basis of suggested bias on the part of Judge Arghir. His application was dismissed by the HCCJ (Judges Macavei, Cobzariu and Ilie) on 17 November 2017, for reasons given on 26 January 2018.

(2) On 8 June 2018 the same constitution of the HCCJ also refused an application by the respondent to annul his conviction. Reasons for the decision were given on 23 October 2018.

18

The evidential phase of the extradition hearing began before District Judge Zani at the Westminster Magistrates' Court in October 2018 and was completed in April 2019. District Judge Zani heard oral evidence from a number of witnesses. The respondent was not one of them.

19

District Judge Zani addressed and rejected a number of submissions made on behalf of the respondent, many of which did not relate to Judge Tudoran.

20

The respondent made the following submissions concerning Judge Tudoran:

(1) The respondent criticised Judge Tudoran's substantive judgment. Some of these criticisms repeated submissions which had been rejected by the HCCJ; others had not been raised before the HCCJ. They included submissions that Judge Tudoran's ruling involved a reversal of the burden of proof; that expert evidence had been wrongly excluded; that the...

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    ...risk that the appellant's trial had been flagrantly unfair in accordance with the judgment of the Divisional Court in Popoviciu v Curtea de Apel Bucharest (Romania) [2021] EWHC 1584 (Admin). Mr dos Santos did not take any point about this low standard before me. Since the hearing, the Supr......
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