Chen v The Government of Romania

Under sections 85(5) and 85(8) of the Extradition Act 2003, a person convicted in absence and not deliberately absent from trial must be discharged unless the law of the requesting state confers an entitlement to a retrial or review amounting to a retrial with the specified fair-trial rights. The court ordinarily determines entitlement by examining the requesting state’s law, rather than its practical operation. A constitutional incorporation of, and priority given to, the European Convention may establish that entitlement where the domestic law is clear.

Separately, the passage-of-time inquiry must address both injustice and oppression. In an absent-trial case, it requires consideration of the effect of delay on the fairness of the retrial and whether the accused caused the relevant delay.

The claimant had been convicted in his absence in Romania of murder and wounding and sentenced to 20 years’ imprisonment. Romania requested his extradition, which the Secretary of State ordered after the District Judge sent the case forward.

Romania accepted that the claimant had not deliberately absented himself from trial. The District Judge nevertheless rejected challenges based on sections 85(5) and 85(8), concerning entitlement to a retrial, and section 79(1)(c), concerning passage of time. The claimant appealed. The central issues were whether Romanian law provided the required retrial rights and whether delay made extradition unjust or oppressive.

1. Section 85 entitlement. The appeal failed on the retrial issue. “Entitled” in section 85(5) means having a legal right under the law of the requesting state. It requires a right conferred by law, not merely an opportunity to ask a court to exercise a discretion. The court therefore examined Romanian law, rather than evidence of how Romanian courts might act in practice.
2. Article 20 of the Romanian Constitution incorporated treaties and conventions into domestic law and gave them priority over inconsistent provisions of the Criminal Code. Romania had ratified the European Convention. Article 522 of the Romanian Criminal Code therefore entitled a person tried and convicted in absence, whose extradition was requested, to seek a retrial subject to the applicable procedural provisions. The evidence about particular Romanian decisions did not alter that conclusion.
3. The Government of the Republic of Albania v Bleta [2005] EWHC 475 Admin did not require an examination of practical operation. It concerned materially less clear Albanian provisions and assurances. Sejdovic v Italy, 1 March 2006, para 105, confirmed the need for a retrial where a person tried in absence had neither escaped trial nor unequivocally waived attendance.
4. Passage of time. The District Judge had erred by treating oppression as the only relevant question. Under sections 79(1)(c) and 82, the court had to consider whether extradition would be unjust as well as oppressive. Applying Kakis v Republic of Cyprus [1978] 1 WLR 777, the inquiry required consideration of whether the claimant had fled, concealed himself or evaded arrest, and of the effect of delay on the fairness of any retrial. Matters such as unavailable witnesses, impaired recollection and missing documents were legally relevant.
5. The section 82 issue was remitted to the District Judge under section 104(1)(b) for reconsideration on the evidence and submissions. The section 85 conclusion was freestanding. Romania’s designation for section 86 purposes meant that no separate prima facie case inquiry under section 86(1) was required.

• Bow Street Magistrates’ Court: The District Judge sent the case to the Secretary of State after rejecting the claimant’s section 85 and passage-of-time arguments.
• Secretary of State: Extradition to Romania was ordered on 31 January 2006.
• High Court (Administrative Court): The appeal was allowed to the extent that the passage-of-time issue was remitted for redetermination. The retrial-rights decision was upheld.