Teodor Andrei Oprea v The Constanta Tribunal (A Romanian Judicial Authority)
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 08 February 2021 |
| Neutral Citation | [2021] EWHC 223 (Admin) |
| Docket Number | Case No: CO/2619/2020 |
| Date | 08 February 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 223 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
In the matter of an appeal against the Applicant's extradition, ordered on 20th July 2020, pursuant to section 26 of the Extradition Act 2003.
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Ross Cranston
Sitting as a judge of the High Court
Case No: CO/2619/2020
Myles Grandison (instructed by Sonn Macmillan Walker) for the Applicant
Hannah Burton (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 5 February 2021
INTRODUCTION
This is a renewed application for permission to appeal the decision of District Judge Snow, dated 20th July 2020 to order his extradition to Romania pursuant to section 21(3) of the Extradition Act 2003 (“the 2003 Act”). The application was refused on papers by Fordham J on 15 October 2020. By order of Mrs Justice Eady this is a rolled up hearing so that if permission is granted, the substantive hearing should follow immediately.
The one ground of appeal is that the District Judge fell into error in concluding that the applicant would be entitled to a retrial in compliance with sections 20(5) and (8) of the 2003 Act, and had he decided that question differently he would have been compelled to order the applicant's discharge. The applicant was not represented before the District Judge and he did not deal with the matter, which was not raised before him. In accordance with the approach Mrs Justice Elisabeth Laing in Troka v Government of the Republic of Albania [2020] EWHC 408 (Admin) I have considered the matter de bene esse.
THE EAW
The Constanta Tribunal, Romania (‘Respondent’) seeks the applicant's extradition in relation to a European Arrest Warrant (‘EAW’) issued on 1st April 2020 and certified by the National Crime Agency on 6th May.
Under the EAW, Box B states that the decision on which the warrant is based is the sentence 608/9.05.2019 of the Constanţa Tribunal, made final on 17 September 2019 upon decision 456/17.09.2019. Box C states that the applicant is sought in order that he may serve a sentence, categorised as “hospitalization in an educational center (sic) for a period of 1 year.”
The sentence was imposed, explains Box E, following a conviction for an offence of theft which took place on 18th August 2015. The applicant is said to have taken various items from a sun lounger at the beach of the Vega hotel in Mamaia Resort, Constanta County when he was 17 years' old, 3 mobile phones, a pair of men's sandals, a bath towel and 160 RON.
Box E states that the applicant was initially sentenced to an educational measure of daily assistance for a period of 6 months by way of criminal sentence no. 1278/29.09.2017 of the Constanta Tribunal, made final on 27 October 2017 as no appeal was lodged. The applicant did not observe the conditions imposed as part of the non-custodial educational measure, with bad faith. Consequently, Box E explains, the Court ordered the replacement of the non-custodial sentence with the educational measure of hospitalisation in an education centre in sentence 608/09.05.2019.
Box D of the EAW states that the applicant was not present at his trial. He was summoned by warrant at an address given by the Romanian Directorate for Personal Records and Database Management in Iasi county, and also at the address he provided during the criminal investigation in Brasov county but it could not be executed. He had travelled to the UK but the telephone number given to the police – it is unclear by whom — did not answer when called in January 2019. He was represented by a lawyer at the trial. Criminal sentence no. 608/09 was sent to his address in Brasov county he had given but returned with a message that he no longer lived there. It was attached to the door of his Iasi address.
Box D states the he is entitled to a retrial as follows: he will be served with the decision on surrender, informed of his retrial rights and “thus it may lead to the dissolution of the initial decision”.
THE DISTRICT JUDGE'S JUDGMENT
The District Judge explains that the applicant was not represented at the hearing.
In the course of considering section 14 of the 2003 Act the District Judge sets out the relevant evidence of the applicant.
a) He was taken to the police station in Romania on the same day of the offence and admitted committing the offence.
b) He had no experience of the criminal justice system in Romania and did not know what would happen upon his release.
c) He was contacted by the police in September 2015 when he believes he was told that his case would be referred to court. He spoke to a “duty lawyer” who told him that the case would go to court but everything would “be fine”. He was not placed under restrictions on his liberty.
d) He did not remain in contact with his lawyer.
e) He moved to the United Kingdom in March 2016.
f) In April 2019, he spoke to his mother who indicated that he had been required to comply with the requirements of a 6 month non-custodial education order, but this had been replaced by a term of 1 year in an education centre. His mother spoke to a lawyer on his behalf, who told her that “everything would be alright” and that if he could provide an employment contract confirming he had work in the United Kingdom then “everything would be fine”. His grandmother provided the contract.
g) He remained in contact with his lawyer until August 2019, when an issue with respect to payment of the lawyer's fees had arisen and the lawyer stopped accepting calls. He heard nothing further until his arrest on the EAW. He hoped everything would be “okay” and believed that if he did not return to Romania for a year the sentence would become time barred and would no longer be enforceable…
m) During cross examination, Ms Burton tells me, and I accept, that the applicant accepted being aware that the case was ongoing when he left Romania but had not thought to tell the Romanian Authorities where he was going.
In relation to Ms Burton's submission that the applicant was seeking to evade justice by leaving Romania in the knowledge that proceedings were ongoing, the District Judge said at paragraph [31] of his judgment:
“I bear in mind his youth at the time and his lack of experience of the criminal justice process. I have found the EAW and further information difficult to penetrate and reconcile. In the light of his lack of experience of the criminal justice system and youth I accept the [he] was guilty of wishful thinking rather than attempting to evade justice….I am satisfied that ['he] is not a fugitive from justice.”
FURTHER INFORMATION
There had been further information before the District Judge dated 25 May 2020. It explained:
i. During the trial phase, at hearings on 10 May 2017, 7 June 2017, 19 June 2017 and 20 June 2017, the applicant was not present but was assisted by an ex officio lawyer;
ii. He had given a statement during the criminal investigation specifying that he wanted subpoenas and procedural documents to be sent to Sercaia village, no.91, Brasov county;
iii. He was legally summoned at the address available in the record of the Directorate for Personal Records and Database Management and to the Brasov county address.
iv. Attempts were made to summons the applicant via telephone, but the telephone numbers provided by him during the investigation were not connected to the network.
v. At a hearing on 6 December 2017, before the judge assigned to execute sentence no. 1278/29.09.2017, which had become final on 27 October 2017, the applicant was absent but assisted by an ex officio lawyer, Ghita Andreea Elena. A warrant for his arrest was issued at the address in Brasov country but the police found no one at the address. A neighbour confirmed that he had lived there for a while.
vi. The Romanian probation applied to have the non-custodial sentence converted to a custodial sentence, since he had not complied with his obligation to notify of any change of address, and was not complying with the terms of the non-custodial sentence, and that was done by way of criminal sentence no. 608/9.05.2019.
vii. The applicant was summoned to a hearing on 25 January 2019 at the address in Iasi county, where he was previously accommodated as a lodger to obtain an identity card.
viii. To execute the warrant for the applicant's arrest, the police contacted his grandmother. She stated that he had gone to work abroad. She provided his telephone number, but when on 23 January 2019 he was contacted he did not answer. At the hearing on 25 January 2019 he appointed a lawyer, Mircea Gherasim, ‘bearing in mind the next hearings’.
ix. At the next and last hearing on 19 April 2019 his lawyer submitted to the case file an employment contract between the applicant and Wealmoor Limited dated 29 March 2017. The Court doubted its authenticity and noted that he had knowledge of the trial, had appointed his lawyer, but he was not present before the court and did not provide a justification for his absence.
x. There was an appeal filed by his lawyer on 17 May 2019 against sentence no. 608/2019. During...
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