Suceava District Court, Romania v Marian Gurau
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice Jay |
| Judgment Date | 02 March 2023 |
| Neutral Citation | [2023] EWHC 439 (Admin) |
| Docket Number | Case No: CO/1710/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 439 (Admin)
Lord Justice Holroyde
(Vice-President of the Court of Appeal, Criminal Division)
Mr Justice Jay
Case No: CO/1710/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clair Dobbin KC and David Ball (instructed by Crown Prosecution Service, Extradition Unit) for the Appellant
Mark Summers KC and Hannah Hinton (instructed by Coomber Rich) for the Respondent
Hearing dates: 20 October, 2022
Approved Judgment
This judgment was handed down remotely at 10:30am on 2 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The appellant, the Suceava District Court in Romania, sought the return of the respondent Marian Gurau pursuant to a European Arrest Warrant (“EAW”) to serve a total sentence of 3 years 5 months' imprisonment. In a judgment dated 6 May 2021 District Judge (Magistrates' Courts) Clews (“the DJ”) found that there was compelling evidence of a likely breach of speciality (also referred to as “specialty”: hence the different spellings which appear in some of the quotations which follow). On that basis, he held that extradition was barred by s11(1)(f) of the Extradition Act 2003 (“the Act”) and ordered the discharge of the respondent. With the leave of Jay J, the appellant appeals against that decision. The respondent seeks to cross-appeal.
Two issues arise for consideration: was the DJ wrong to find that extradition was barred by speciality; and if he was, is extradition in any event impermissible on the grounds which the respondent seeks to raise by way of cross-appeal, namely abuse of process, and/or breach of his rights under articles 3 and/or 5 of the European Convention on Human Rights (“art. 3/ art.5”)? Consideration of that second issue requires the court to decide whether it has any jurisdiction to hear a cross-appeal.
I express at the outset my gratitude to all counsel – Ms Dobbin KC and Mr Ball for the appellant, Mr Summers KC and Ms Hinton for the respondent, none of whom appeared below – for their written and oral submissions. Following the provision to counsel of a draft of the court's judgments, a point arose which led the court to direct further written submissions. Those further submissions also were most helpful, and I am grateful for them.
The criminal proceedings in Romania:
The respondent is now 46 years old. The EAW related to five offences of which he was convicted by the District Court in Suceava. The earliest in time were three offences of tax evasion, committed between February 2007 and 2010, which involved failures by the respondent to make required fiscal declarations in relation to a company. In 2013, suspended sentences of a total of 8 months' imprisonment were imposed for those offences. Thereafter, in March 2014, the respondent was paid to drive 6 migrants, and a people smuggler, from Suceava to the Hungarian border, thereby committing offences of migrant trafficking and supporting an organised crime group for the purpose of trafficking in migrants.
By his commission of those offences, the respondent was in breach of the suspended sentences imposed in 2013. The Suceava court revoked the suspension of those sentences, and aggregated the sentences for the 2014 offences. This resulted in a total sentence for the five offences, made final on 28 November 2018, of 3 years 5 months' imprisonment.
The respondent had fled Romania and come to the United Kingdom in 2015. The whole of his sentence remains to be served.
The EAW was issued on 17 December 2018 and certified by the National Crime Agency on 10 January 2019. The boxes were ticked for offences of participation in a criminal organisation, trafficking in human beings and fraud. The respondent was arrested on 14 January 2020 and was on conditional bail throughout the extradition proceedings. Because of the date of his arrest, the unamended provisions of the Act, the Council Framework Decision 2002/584/JHA on the European arrest warrant, and the surrender procedures between Member States of the European Union continue to apply to this appeal.
In addition to the five offences dealt with by the court in Suceava, and covered by the EAW, an indictment charging the respondent with a further offence of tax evasion was issued on 29 March 2019 in the Vaslui Tribunal. For convenience, I shall refer to this as “the Vaslui offence”. In the proceedings before the Vaslui Tribunal the respondent has been represented by a Romanian lawyer of his choice, and had indicated his willingness to take part in hearings via a video link from this country.
Although it would have been open to the relevant judicial authority to issue an accusation EAW in relation to the Vaslui offence, that was not done. The Vaslui Tribunal did, however, seek judicial assistance from the authorities in this country in relation to whether the respondent wished to plead guilty or wished to be “judged in absentia”.
The extradition hearing:
The respondent initially resisted his extradition on five grounds: the passage of time (s14 of the Act); speciality (s17), on the basis that the Romanian authorities were prosecuting him for a further tax evasion offence not contained in the EAW; the lack of a right to a retrial (s20); prison conditions (s21 and art.3); and his right to a private and family life (s21 and art.8). In the light of recent case law, however, he did not pursue the prison conditions issue at the hearing on 31 March 2021.
The DJ found that the respondent was a fugitive from Romanian justice, having left that country to avoid prosecution in the knowledge that he was in breach of the suspended sentence of 2013 and would be sent to prison. He disbelieved parts of the respondent's oral evidence, and rejected the respondent's submissions in relation to three of the challenges to extradition. Thus the only ground on which he discharged the respondent was his finding that extradition was barred by speciality.
In that regard, the DJ said, at paragraph 42 of his judgment –
“S.17(1) provides that speciality is a bar to extradition “ if (and only if) there are no specialty arrangements with the Category 1 territory.” As was pointed out in Prystaj v Poland [2019] EWHC 780 (Admin) (at para 15) all EU countries are signatories to the European Convention on Extradition which includes a provision that extradites [sic] cannot be dealt with in the receiving countries other than for the offences for which they have been extradited. The specialty rule also appears in the Framework Decision. On the face of it, therefore, there are specialty arrangements and the bar cannot operate. However, that is not the end of the matter.”
The DJ then referred to the prosecution of the respondent for further tax evasion offences. He recorded in his judgment that he had enquired during the hearing why Romania had not issued an accusation EAW in relation to the Vaslui offence, and had been told that Romania had simply decided not to do so. He noted the submissions on behalf of the appellant relying on the principle of mutual confidence and respect, and pointing out that the Romanian authorities had been entirely open and transparent about their prosecution of the Vaslui offence. He referred to a number of cases, including Prystaj v Poland, Brodziak v Poland [2013] EWHC 3394 (Admin) and Hilali v Spain [2006] EWHC 1239 (Admin). He reminded himself that the burden was on the respondent to establish that his extradition was barred, and that there is a strong presumption that Member States will comply with their obligations. He added, at paragraph 46 –
“Thus, in relation to Part 1 cases it is not at all easy to establish specialty.”
The DJ noted from the case law that Poland and Spain had incorporated the speciality rule into their domestic law. He had not, however, been made aware that Romania had done so. He continued, at paragraph 47 –
“That by no means establishes or begins to establish a likelihood of non-compliance but it does to an extent weaken the JA's case. It would assist their case if there could be shown to be a similar domestic law to that which exists in Poland and Spain.”
The DJ stated that a prosecution for the Vaslui offence was in progress, with the next hearing scheduled for a date in June 2021. He noted the submission by counsel then representing the respondent that participation in the Vaslui proceedings did not amount to a waiver of the respondent's speciality rights. He accepted counsel's submission that, because the Vaslui proceedings were still ongoing, the speciality rule applied.
The DJ referred to s54 of the Act, which after extradition allows a judicial authority to seek consent for the requested person to be dealt with for another offence not covered by the EAW. But, he said, that was not something which could be considered at the present stage, because there had not yet been extradition of the respondent and a request for consent therefore could not be made.
At paragraph 55, the DJ concluded –
“Having considered all of the available evidence I am satisfied that in this particular case there is compelling evidence of a likely breach of specialty and that in the circumstances it would be wrong to presume compliance. The presumption of compliance has been displaced by the instigation and continuation of the new prosecution in Romania.”
He accordingly found that extradition of the respondent was barred by s11(1)(f) of the Act, and ordered that the respondent be discharged.
A subsequent development:
On 17 October 2022, shortly before the hearing of this appeal, the respondent was convicted of the Vaslui offence of tax evasion. The Vaslui Tribunal imposed a...
To continue reading
Request your trial
-
Marius-Mihai Nisipeanu v District Court of Dolj, Romania
...non-extraditable offences, should not be applied to the same effect in Nonea. 17 In Gurau v Suceava District Court, Romania [2023] EWHC 439 (Admin) the Divisional Court (Holroyde LJ and Jay J) again considered and rejected a speciality argument on the basis that the Requested Person had fa......
-
Marina Horvath v Central District Court of Buda, Hungary
...to see whether [the defence] can adduce fresh evidence on these issues. He relies on ( Suceava District Court, Romania v Gurau Gurau [2023] 1 WLR 2813) as being authority to permit him to do this. First, when I consider s.29(5)(c) of the Act, I find that that is clear that the appellate co......
-
Romanian Judicial Authority v Ionut-Victor Chelu
...and Mr Ball in relation to s.29(5) of the 2003 Act, and having been told of the decision in Suceava District Court, Romania v Gurau [2023] EWHC 439 (Admin), I accept that the only course open to me is to quash the order of the District Judge discharging Mr Chelu in respect of the second off......