Viorel Nonea v Judecatoria Oradea Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wall |
| Judgment Date | 23 August 2022 |
| Neutral Citation | [2022] EWHC 2217 (Admin) |
| Docket Number | Case No: CO/2388/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2217 (Admin)
Mr Justice Wall
Case No: CO/2388/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Benjamin Joyes (instructed by Taylor Rose) for the Appellant
Mr Stefan Hyman (instructed by CPS Extradition) for the Respondent
Hearing date: 20 July 2022
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 5 July 2021 District Judge Robinson ordered the Appellant's extradition to Romania. Extradition had been requested in respect of six offences of which the Appellant had been convicted and for which he had been sentenced to a custodial term of 2 years 10 months. The District Judge ordered his extradition in respect of three offences (driving a motor vehicle without a licence on 24 April 2018, 28 April 2018 and 31 October 2018) but refused it in respect of three other offences relating to driving a motor vehicle which was not properly registered; those offences having been committed on the same dates as the offences of driving without a licence. The refusal was on the basis that the Romanian offences of driving a vehicle which was not properly registered had no equivalent in English law and, therefore, were not extradition offences. That decision has not been challenged. The sole challenge before this court is whether, that decision having been made, the District Judge was wrong to conclude that extradition for the remaining offences would not lead to a violation of the principle of specialty under s17 Extradition Act 2003 (“the Act”). (Other issues were argued at first instance and/or advanced as alternative grounds of appeal: all of those have since been abandoned).
The essential chronology of this case is as follows:
i) The Appellant was sentenced to a term of 2 years 10 months on 1 September 2020 in respect of the six offences of which he then stood convicted. That sentence was made final (meaning that the time for appeal had elapsed) on 22 September 2020.
ii) The European Arrest Warrant (“the EAW”) was issued on 23 September 2020 and certified by the National Crime Agency on 21 October 2020.
iii) The Appellant was arrested on the “EAW” on 24 October 2020. He made his first appearance at Westminster MC on 26 October 2020.
iv) The full extradition hearing took place on 28 April 2021 and, following further information being asked for and received on a discrete and, for the purposes of this appeal, irrelevant issue, the reserved judgment handed down on 5 July 2021.
v) The application for permission to appeal was refused on paper by Sir Ross Cranston on 22 November 2021 but granted at an oral hearing by Lane J on 9 February 2022.
This appeal is centred on the way in which Romania sentences offenders for multiple offences. Romania, in common with most if not all other states, has regard to the issue of totality when an offender is sentenced for more than one offence at the same time. It deals with that issue by the application of a formula which involves the court in determining the most serious (or longest) sentence appropriate for any single offence and adding to it one third of the combined appropriate sentences for all other offences. This results in a single sentence being imposed for the totality of an offender's criminality (known as the “resulting penalty”) and not a series of individual sentences tailored to the seriousness of each offence committed. The difficulty this poses, it is said, is that if, as in this case, an offender is extradited to Romania in respect of some but not all of the offences which together formed the basis for the “resulting penalty”, the sentence originally imposed would have to be varied in some way (disaggregated) in order to ensure that the offender does not serve part of his sentence in respect of offences for which he was not extradited. It is submitted that in Romania there is no effective method of ensuring that this happens.
The duty on a Member State to ensure that an extradited offender (or indeed suspect) is not dealt with for offences for which he was not extradited stems from Article 27 of the Framework Decision. That imposes on Member States the duty, subject to exceptions which are of no application in this case, to ensure that, “ a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for offences committed prior to his or her surrender other than that for which he or she was surrendered”.
The requirement to recognise that duty is found in s17 of “the Act”: (emphasis added):
“(1) A person's extradition to a category 1 territory is barred by reason of specialty if (and only if) there are no specialty arrangements with the category 1 territory.
(2) There are specialty arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if— (a) the offence is one falling within subsection (3), or (b) the condition in subsection (4) is satisfied.
(3) The offences are— (a) the offence in respect of which the person is extradited; (b) an extradition offence disclosed by the same facts as that offence; (c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with; (d) an offence which is not punishable with imprisonment or another form of detention; (e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal; (f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
(4) The condition is that the person is given an opportunity to leave the category 1 territory and— (a) he does not do so before the end of the permitted period, or (b) if he does so before the end of the permitted period, he returns there. (5) The permitted period is 45 days starting with the day on which the person arrives in the category 1 territory”.
It has been transposed into Romanian law in Article 117 of Law 302/2004 which reads, “ … a person surrendered to the Romanian authorities may not be prosecuted, sentenced or otherwise deprived of his/her liberty for a different act committed prior to his or her surrender other than that for which he/she was surrendered unless the executing Member State gives its consent”. There are exceptions to this Rule which do not touch upon the facts behind this appeal.
The Appellant accepts that the principle of speciality has in this way been enshrined in Romanian law by statute. However, he asserts that the way in which the courts in Romania are interpreting that statute will result in his serving the whole of his sentence and serve to deny him of the protection to which he is entitled.
It is agreed that a court in this jurisdiction when considering whether speciality arrangements are in place must consider not simply whether the requesting state has transposed the rule in statute but must also be “ satisfied that there are practical and effective arrangements in the requesting territory to ensure that speciality will not be infringed”: ( Mihaylov v Bulgaria [2022] EWHC 908 Admin at paras 18c). It was further said at para 18d: “ what was important was that [the requesting state] had incorporated the speciality rule into their law; that there was no compelling evidence that the … authorities would act in breach of the rule; and that the requested person had a remedy in domestic law”
It is for the requested person (i.e. the Appellant) to show on the balance of probabilities that appropriate speciality arrangements are not in place: see Jan Kucera v The District Court of Karvina, Czech Republic [2008] EWHC 414 (Admin). There is a strong presumption that a Member State will act in accordance with its international obligations with respect to speciality and there is therefore a need for strong evidence to displace that presumption: see Poland v Brodziak [2013] EWHC 3394 (Admin) and Mihaylov v Bulgaria (supra).
In seeking to displace this onerous duty, the Appellant relied at first instance on the evidence of Dr Mihai Mares, an advocate from Romania who was accepted as an expert in Romanian law. He produced...
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...the affirmative in Enasoaie v Romania [2021] EWHC 69 (Admin) at [68] (a case not cited to the DJ) and again, recently, in Viorel Nonea v Judecatoria Oradea Romania [2022] EWHC 2217 (Admin). The DJ was therefore wrong, Ms Dobbin submits, to proceed on the basis that Romanian domestic law h......