Florescu, R (on the application of) v Lasi High Court of Law Romania

In an extradition appeal, a last-minute change of representation or request for further evidence does not justify an adjournment where the relevant matters were known earlier and no adequate explanation or cogent material is provided. An European Arrest Warrant remains effective where it seeks return to serve a sentence activated from a suspended sentence, unless there is evidence of defective activation procedures or an inability to obtain review on return. Extradition to a European Union or Council of Europe state will ordinarily be barred for an Article 3 risk only on very cogent evidence. Risks from non-state agents and deficiencies in prison healthcare do not by themselves establish a bar to extradition.

The claimant appealed against an order for his extradition to Romania to serve a one-year sentence for possession of cannabis. The order had been made by a district judge on 18 May 2010 when the claimant was represented by the duty solicitor and had raised no grounds opposing extradition.

On appeal, the claimant challenged the description of the sentence as enforceable, argued that the sentence was disproportionate, and relied on alleged risks of persecution and inadequate medical treatment in Romanian prison. He also sought an adjournment to obtain new representation and further evidence. The central issues were whether an adjournment should be granted and whether any of the asserted matters required extradition to be barred.

1. Adjournment. The application was refused. The claimant had received repeated contact with his representatives and had chosen to attempt a change of representation at the last minute. The extradition process was intended to operate expeditiously. The claimant had known of the proposed Article 3 evidence for several months and had provided none, although it could have been produced before the district judge. Cogent material was required before an adjournment could be granted for further evidence.
2. Activated suspended sentence. The European Arrest Warrant did not refer to a suspended sentence. Nevertheless, if the sentencing history represented an original suspended sentence later activated, the warrant was not defective and remained effective to require return to serve the activated sentence. An arguable objection would require evidence that the activation procedures had not been complied with or could not be re-examined on return. The court applied Cushter(?) v District Court of Czestochowa Poland [2010] EWHC 432 Admin.
3. Proportionality. The sentence was not so disproportionate as to breach Article 3 of the European Convention on Human Rights. Article 49(3) of the Fundamental Charter of Human Rights did not apply to the United Kingdom and Poland in the relevant way. In any event, that provision could not be used to invite an ordinary domestic review of sentence proportionality, and the disparity between offence and sentence was not sufficiently remarkable.
4. Persecution and healthcare. Even if the claimant faced persecution by non-state agents, evidence would also be needed that the Romanian prison system could not afford a proper, though not guaranteed, degree of protection, including through available European enforcement mechanisms. Membership of the European Union and the Council of Europe supported an expectation of adequate protection absent very cogent evidence. The healthcare complaint did not meet the high Article 3 threshold.

The appeal was dismissed.

• High Court (Administrative Court): The appeal against the district judge’s extradition order was dismissed.
• District Judge: On 18 May 2010, extradition was ordered after no grounds were raised to contest it.