Colda v Romania

Extradition will be incompatible with Article 8 only where the person establishes a real risk of a flagrant breach of Convention rights. Family separation caused by imprisonment engages Article 8, but the strong public interest in extradition means that relief is exceptional and requires a proportionality assessment supported by evidence. Under section 82 of the Extradition Act 2003, where the person has already been convicted, the relevant period ordinarily runs from becoming unlawfully at large. Delay attributable to the requested person cannot ordinarily found oppression. A short period of delay, together with changed family circumstances knowingly undertaken while criminal proceedings remained unresolved, did not bar extradition.

Antoanela Colda appealed under section 103 of the Extradition Act 2003 against a district judge’s decision sending her case to the Secretary of State, followed by an extradition order. Romania sought her extradition to enforce a two-year sentence imposed after her conviction in absentia for traffic of influence.

She argued that extradition would disproportionately interfere with her Article 8 family life because she had a young daughter and alleged that Romanian law would suspend her parental rights. She also relied on section 82, contending that the passage of time made extradition unjust or oppressive. The central issues were whether the evidence established a flagrant Article 8 breach and when, in a post-conviction case, the relevant period began.

1. The appeal was dismissed. The claimant failed to establish either a flagrant breach of Article 8 or oppression by reason of the passage of time.
2. Article 8 was engaged in principle. Parental rights and the mutual enjoyment of family life are fundamental, and the state must ordinarily act to preserve and develop the parent-child relationship. However, extradition engages a strong public interest in honouring international criminal justice arrangements. A wholly exceptional case is required before extradition can be disproportionate.
3. The court assumed, without deciding, that the Romanian provisions concerning disqualification from parental rights could interfere with Article 8. The Strasbourg decisions in Cumpana v Mazare v Romania and Affaire Sabou et Pircalab v Romania did not establish the precise practical consequences alleged by the claimant, particularly any complete denial of visits or contact. There was no adequate evidence from Romanian law or practice to support that case.
4. Under section 82 of the Extradition Act 2003, the relevant period in a case where the requested person has already been convicted runs from the point at which she is alleged to have become unlawfully at large. Applying the approach in Kakis v The Government of Cyprus, delay caused by avoiding proceedings or arrest cannot ordinarily be relied upon as oppression.
5. The relevant period was approximately 16 months. The claimant knew of the criminal proceedings, chose not to attend the trial or appeals, and established her family circumstances with knowledge of the unresolved proceedings and possible imprisonment. Those matters, together with the absence of culpable delay by Romania, defeated the section 82 ground.

• District Judge: on 9 December 2005, District Judge Tubbs sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.
• Secretary of State: an extradition order was made on 1 February 2006.
• High Court (Administrative Court): the appeal under section 103 was dismissed. Lord Justice Maurice Kay agreed with Mr Justice Tugendhat’s reasons.