Ticu v Tribunalul Bacau (Romania)

For the purposes of extradition, a requested person who has instructed a lawyer to represent him at trial may be treated as present, even if he did not attend physically. The executing court must generally rely on the statements in the European arrest warrant and any further information, consistently with mutual trust, rather than investigate the underlying proceedings in the requesting state. A person is deliberately absent where he makes a conscious decision not to attend, even if that decision follows erroneous legal advice. Extradition will remain compatible with Convention rights where the person knew of the proceedings, had legal representation, had access to a retrial remedy, and has not shown that the trial was unfair.

Ovidiu Ticu appealed against a District Judge’s order dated 7 October 2016 directing his extradition to Romania to serve a seven-year sentence for tax evasion. The appeal concerned whether he had been convicted in his presence, whether he had deliberately absented himself from his trial under section 20 of the Extradition Act 2003, and whether extradition would be compatible with his Convention rights under section 21.

The central issues were whether representation by a chosen lawyer made him effectively present, whether his non-attendance was deliberate despite alleged inadequate notice or erroneous advice, and whether the absence of a retrial required his discharge.

1. Representation and effective presence. The appeal was dismissed. Although the appellant did not physically attend the Romanian trial, the EAW and further information stated that he was represented by his chosen lawyer. Under the principles in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin), the executing court was entitled and obliged to treat those statements as correct and was not required to investigate the underlying facts. The appellant was therefore deemed present for section 20 purposes.
2. Deliberate absence. A person is deliberately absent where he makes a conscious decision not to attend, even if that decision is based on erroneous advice or information from his lawyer. The appellant knew of the proceedings, was informed of the December 2014 hearing, chose not to attend, instructed a lawyer, and failed to participate or challenge earlier procedural steps. The District Judge was entitled to find that he was deliberately absent from the trial.
3. Convention rights and retrial. The alleged lack of official notice, short notice, erroneous advice and substitution of lawyers did not establish that the appellant had not waived attendance or that extradition would be unfair. Romania had afforded him an opportunity to seek a retrial, his application had been rejected by the Romanian Supreme Court, and no unfair trial or absence of a case against him had been established. Romania’s status as an ECHR signatory also supported the presumption that Convention rights would be respected.
4. Under section 21(1) of the Extradition Act 2003, extradition was compatible with Convention rights. The appellant therefore had to be extradited, and the appeal was dismissed.

• High Court (Administrative Court): allowed the appeal to proceed to judgment but dismissed it, upholding the District Judge’s order of 7 October 2016 directing extradition.