Valeriu Cosmin Argeseanu v District Court of Hunedoara and Petrosani (Romania)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan |
| Judgment Date | 28 March 2018 |
| Neutral Citation | [2018] EWHC 670 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5053/2016 |
| Date | 28 March 2018 |
[2018] EWHC 670 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice McGowan
Case No: CO/5053/2016
Mr Malcolm Hawkes (instructed by Aneta Maziarz Solicitors) for the Appellant
Mr Nicholas Hearn (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 14 th December 2017
On 4 October 2016 District Judge Branston sitting at the City of Westminster Magistrates' Court ordered this appellant's extradition to Romania on two conviction European Arrest Warrants (EAW).
i) EAW 1 Hunedoara Court of Law
EAW 1 was issued on 26 May 2016 and was certified on 2 June 2016. It follows the Appellant's conviction at a trial on 31 August and 28 September 2005. It is said he was present at the trial.
ii) EAW 2 Petrosani Court of Law
EAW 2 was also issued on 26 May 2016 and certified on 2 June 2016. It also relates to a conviction following a trial on 16 May 2005, 22 February 2006 and 30 January 2007. He is said to have been present at that trial.
This case is to be dealt with under Part 1 of the Extradition Act 2003.
There were six grounds of appeal.
i) Section 2 Extradition Act 2003. The failure accurately to particularise both warrants means they are both invalid.
ii) Section 21 Extradition Act 2003. Article 8 ECHR. Extradition would be a disproportionate interference with his family and private life rights.
iii) Section 14 Extradition Act 2003. The four-year delay between his discharge in 2012 and the institution of these proceedings in 2016 is oppressive.
iv) Section 17 Extradition Act 2003. Specialty. Extradition pursuant to insufficiently particularised conduct for which the appellant would be imprisoned would result in a breach of speciality protection. the failure to uphold speciality protection must bar extradition.
v) Abuse of process. The Respondent Judicial Authorities' repeated attempts to secure the Appellant's extradition on the basis of incomplete and misleading information amounts to an attempt to usurp the statutory extradition scheme. Extradition pursuant to both warrants should therefore be barred as an abuse of process.
vi) Section 21 Extradition Act 2003. Article 3 ECHR. Prison conditions in Romania are so poor as to engage and breach Article 3 of the Convention. In the light of the known breaches of previous assurances to the court, together with misleading information supplied on behalf of the Romanian authorities to the UK courts, no confidence may be placed in the assurances, such as they are, that they will be honoured in practice.
On 23 November 2016 Garnham J granted permission to appeal on Ground 1 of his grounds of appeal only. He seeks to renew his application for permission on grounds 2 to 5. He further seeks permission to re-open the renewal application for permission on ground 6, which had been abandoned.
Having granted permission on Ground 1, Garnham J found;
i) Ground 2 was not arguable, as the Appellant was a fugitive and barred from relying on delay by section 14 EA 2003. That there is no proper argument that there are exceptional circumstances. That there is no properly arguable case that the District Judge's conclusions were wrong.
ii) Ground 3. The arguments appeared to be based on observations made in Edutanu v Romania [2016] EWHC 864 (Admin) and not on evidence in the court below. There was no evidence to support the contention that Romania would not comply with the relevant specialty arrangements.
iii) Ground 4. The DJ had set out the relevant principles, identified the competing considerations and reached an entirely rational conclusion. He had properly taken into account the circumstances of the earlier extradition proceedings and the delay. There was no arguable basis to say he was wrong to come to that conclusion.
iv) Ground 5. The DJ's analysis of the abuse argument was “compelling”. The re-issue of an EAW by a requesting state is not an abuse.
v) Ground 6. This ground could not survive the decision of the Divisional Court in Mures v Romania [2016] EWHC 2786 (Admin).
The renewal and substantive hearing was adjourned by Sir Stephen Silber at the request of the CPS on 6 February 2017 pending the cases Alexander v France and Di Benedetto v Italy. This was opposed by the Appellant. The case was dismissed on 15 June 2017 Alexander v France, Di Benedetto v Italy [2017] EWHC 1392 (Admin). The High Court certified a point of law of general public importance,
“Is it ever permissible for a Part 1 warrant which fails to comply with the requirements of section 2 of the Extradition Act 2003 to be corrected through the provision of information extraneous to the warrant?”
There was no general stay pending the decision of the Supreme Court. It was not appropriate to adjourn the hearing of this case but it was the safer course to await the decision on the application to the Supreme Court. It has now been announced that the Supreme Court will not accept the case as the applications “do not raise an arguable point of law”.
The issue at the heart of this appeal is, were both warrants irredeemably flawed by the lack of sufficient accurate particularity?
The public interest in compliance with extradition requests is clear. There must be good reasons to depart from the expected course of compliance with such a request. Equally the District Judge in such hearings has the benefit of seeing the witnesses and the expertise which should be given all due respect. This court should be slow to interfere with findings made in the Magistrates' Court.
EAW 1
The incident occurred on 11 December 2004. The trial was heard on 31 August 2005 and 28 September 2005. The appellant was present at the trial. The appellant was convicted of three offences of assault. It was an incident of violence in which the appellant was the initial aggressor, someone else produced a baseball bat which the appellant used to carry out an assault. The baseball bat was then used as a weapon against the appellant and he suffered very serious injury, on any view a great deal more serious than anything he inflicted. The man, Andrei Mihalcea, who attacked the appellant was later convicted of attempted murder.
It is said that there are errors in the warrant which appears to show that the appellant was sentenced to two years for his part in this incident. In fact, he was sentenced to an aggregate term of six months for the offences arising out of this incident and another 18 months for a different assault on another occasion altogether in 2002. He was pardoned for that offence. It is not clear but the commission of the offence in December 2004 might have led to that pardon being revoked. The 2004 offences are particularised in the warrant, the 2002 offences are not.
EAW 1 is in identical form to an earlier warrant, issued on 27 July 2012 and certified on 24 August 2012. The Senior District Judge refused extradition on that warrant on 15 October 2012. The prosecution did not appeal against that discharge.
EAW 2
The trial on this matter spanned 16 May 2005, 22 February 2006 and 30 January 2007. The offence is said to have been committed on 4 May 2005. It appears that the appellant was convicted of an offence akin to criminal damage or similar. He was sentenced to a term of 18 months imprisonment on 15 May 2007. However, that appears to have been expressed as a term of 3 years by the addition of a sentence of 18 months for another assault passed on 17 June 2003 but un-particularised.
This warrant was withdrawn on 24 August 2016. It was replaced by EAW 2, issued on 9 August 2016 and certified on 18 August 2016. There is no significant difference in the two versions of the warrant. The second has some little additional detail.
On 14 September 2012 the Deputy Senior District Judge discharged that warrant. She found that there was a failure to particularise the conduct for which the Requested Person was wanted to serve a sentence so great as to invalidate the warrant. There was no prosecution appeal against that decision.
MAGISTRATES' COURT HEARING
The District Judge gave his decisions in a lengthy and thorough judgment on 4 October 2016. The history of proceedings is set out in very considerable detail and need not be re-stated here. He found that this appellant, having been present at his trials and being aware of outstanding proceedings when he left Romania was a fugitive. That is a perfectly proper conclusion to have reached on the evidence.
The District Judge found that,
125. “I am quite satisfied that EAW 1, as it stands, contains both inaccurate and insufficient information. The information is inaccurate because it appears to state that the sentence of two years' imprisonment was imposed in respect of three offences of assault, when in fact only a total of six months was imposed in respect of these three offences. The EAW is inaccurate because it states that the warrant relates to three offences when in fact it relates to four offences. [The EAW is also likely to be inaccurate because the Framework list is marked to indicate that it relates to “murder/grievous bodily injury” when it seems to me that such attribution is most probably ill directed at Mr Argeseanu and more properly directed at Andrei Mihalcea who faced a charge of attempted murder. However, I do not consider that an error such as this is relevant to my consideration under section 2].
126. The information is insufficient in EAW 1 because it does not give any particulars of the offence and conviction which led to 18 months of the two-year sentence being imposed.
127. These omissions and inaccuracies were originally made apparent by the court judgment of 25 January 2006...
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