R Mihai-tony Echimov v Court of Babadag Romania
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVIS |
| Judgment Date | 29 March 2011 |
| Neutral Citation | [2011] EWHC 864 (Admin) |
| Docket Number | CO/12623/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 March 2011 |
[2011] EWHC 864 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Davis
CO/12623/2010
Miss M Westcott (instructed by Lawrence & Co) appeared on behalf of the Claimant
Miss J Faure Walker (Mr D Sternberg for judgment) (instructed by CPS Extradition Unit) appeared on behalf of the Defendant
Introduction
This is an appeal brought pursuant to section 26 of the Extradition Act 2003 from a decision of District Judge Zani sitting in the City of Westminster Magistrates Court given on 2nd December 2010. The District Judge ordered the extradition of the appellant, Mihai-Tony Echimov, to Romania, to "serve the term of one year and six months' imprisonment as detailed in the European Arrest Warrant", as the District Judge put it.
No appeal is sought to be raised against the District Judge's conclusions, adverse to the appellant, by reference to Articles 2 and 3 of the European Convention on Human Rights. The sole point argued on this appeal is not an unfamiliar one in the context of Part 1 extradition cases: which is whether the European Arrest Warrant in question provides sufficient particulars of conviction and/or sentence so as to comply with the provisions of section 2(6) of the 2003 Act. However, the particular point arising in this case is a little out of the ordinary. Putting it compendiously, it involves considering whether particulars of a previous conviction which resulted in a custodial sentence, broadly corresponding to what in England and Wales would be styled a suspended sentence, need to be given when a subsequent conviction, itself giving rise to a custodial sentence, causes that suspended sentence to be activated, and where the total resulting sentence is that then described in the European Arrest Warrant.
Background facts
The European Arrest Warrant in this case was issued on 3rd May 2007 by the Court of Babadag, Romania. Romania is, of course, a Part 1 country for the purposes of the 2003 Act. The warrant was certified by the Serious Organised Crime Agency on 19th August 2008.
Box (a) of the European Arrest Warrant provides information regarding the identity of the requested person in unexceptionable terms. Box (b) relates to the decision on which the warrant was based. It says this:
"1. Arrest warrant or judicial decision having the same effect: [omitted]
Type: imprisonment execution warrant no. 446/767/2003 of 02.02.2004.
2. Enforceable judgment: penal sentence no. 326/23 12.2003 Issued in the file no. 767/2003 by the court of Babadag, final by lack of appeal on 02.02.2004. Reference: file no. 767/2003."
Then in box (c) there was given the indications on the length of sentence and it is said, by reference to the length of the custodial sentence or detention order imposed, "Remaining sentence to be served: 1 year and 6 months imprisonment". Box (d) indicates that the decision was rendered in absentia. Box (e) relates to offences. In the relevant respects as completed in this European Arrest Warrant it commences in these terms:
"This warrant relates to in total: one offence. Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person: during the night of 1/2.03.2003 the defendant entered the store of S.C. 'OCVIC' from Slava Risa, where subtracted goods with a total value of ROL 13,000,000.
Nature and legal clarification of the offence(s) and the applicable statutory provision/code: one offence of aggravated theft provisioned by Article 208(1)-(209)(g) and (i) of the Penal Code with the application of Articles 74-76(c) of the Penal Code."
Section II of the same box then goes to deal with what are described as the "Full descriptions of offence(s) not covered by section 1 above". In the relevant respects it says this:
"According to the penal sentence no. 326/23 12.2003 issued by the court of Babadag, rendered in the file no. 767/2003, final by lack of appeal on 02.02.2004, the defendant Echimov Mihai-Tony is sentenced for committing the offence of aggravated theft provisioned by Article 208(1)-(209)(g) and (i) of the Penal Code with the application of Articles 74-76(c) of the Penal Code, to a penalty of 1 year imprisonment.
According to Article 7 of Law no. 543/2002 and Article 83 of the Penal Code the pardon of the penalty of 6 months imprisonment and the conditioned release applied to the same defendant is revoked by [I interpolate that clearly this should be translated as 'in respect of'] the penal sentence no. 121/23.05.2002 of the Court of Babadag for committing the offence provisioned by Article 98(1) of Law no. 26/1996.
The defendant is ordered to serve, besides the penalty applied in this case, also the penalty of 6 months imprisonment which was initially pardoned, therefore he has to serve a penalty of 1 year and 6 months imprisonment."
It will be noted that nowhere in this European Arrest Warrant are details given of the conviction which apparently gave rise to the penal sentence of six months' imprisonment under reference 121/23.05.2002 in the Court of Babadag. However, subsequently the requesting judicial authority provided extensive further information dated 31st August 2010. That explains that the sentence 121/23.05.2002, said to have been imposed in the appellant's absence, related to thefts of wood and what are described as "props" on a date between 15th and 20th December 2001 and further theft of what again are described as wooden "props" occurring in February 2002. Very full details are given. The further information also explains that the sentence imposed pursuant to relevant provisions of the identified penal code was six months' imprisonment and that (on the basis of another identified provision of the code) the court, as it is put as translated, "decides the conditioned reprive [sic] from the penalty execution" for a time period of two years. Attention was drawn to the power of revocation and cancellation of the conditional reprieve. The subsequent revocation of that conditional reprieve was noted in this way:
"Penalty reprive according to the article 1 from Law 543/04.10.2002 by the penal sentence no. 326/23.12.2003 of Babadag Court, according to the article 7 from Law 543/2002 and article 83 Penal code, it was revoked the reprive of the 6 months prison penalty and thus the conditioned reprive applied by the penal sentence no. 121/23.05.2002 —to the same defendant Echimov Mihai-Tony of the Babadag Court and decides its execution besides the penalty of 1 year in prison applied by the penal sentence 326/2003, thus the defendant needing to execute in the end 1 year and 6 months in prison."
The further information also gave full details, entirely consistent with those set out in the European Arrest Warrant itself, of the offence of breaking into the supermarket on the night of 1st/2nd March 2003 and stealing goods, styled aggravated theft but clearly corresponding to the English law offence of burglary.
The further information, in describing the sentence, then said this:
"According to the article 7 from Law 543/2002 and the article 83 penal code revokes the reprive of the penalty of 6 months in prison and respectively the conditioned suspension applied to the defendant by the penal sentence 121 from the 23.05.2002 of Babadag Court for the perpetration of the offence according to the provisions of the article 98 indent 1 from Law 26/1996.
Decides that the defendant would execute besides the penalty applied in the present case also the penalty of 6 months in prison for which he benefited from reprive, thus in the end he will be obliged to execute 1 year and 6 months in prison."
The legal background
The starting point necessarily is section 2 of the 2003 Act itself. In the relevant respects, this being a conviction warrant not an accusation warrant, the relevant provisions are these:
"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains —
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6)…
(5) The statement is one that —
(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is —
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
The language of that section is plainly...
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