Asenov v Local Court of Arad Romania

In extradition proceedings on a conviction warrant, differences between the sentencing regimes of Member States do not ordinarily justify refusal of extradition. Aggregation and later disaggregation of sentences in the requesting state must be respected, subject to Convention-compliant safeguards and an effective domestic route of challenge. Where the requested person alleges that the sentence has been unlawfully calculated, the issue should generally be pursued before the requesting state’s courts. The extradition court must assess whether interference with family life is disproportionate, but appellate intervention is justified only where the lower court’s decision is wrong. Mutual confidence and respect between judicial authorities remain central to the operation of the statutory extradition scheme.

Asenov v Local Court of Arad Romania concerned an appeal from an order of the Westminster Magistrates’ Court requiring the appellant’s return to Romania to serve 12 months’ imprisonment for driving without a licence.

Romania had originally aggregated sentences imposed for driving without a licence and using a forged driving licence. Bulgaria enforced only the sentence for the forged-document offence, because driving without a licence was not criminal there. Romania subsequently disaggregated the sentence and sought the appellant’s return for the remaining 12-month term.

The appellant relied on the statutory bars relating to double jeopardy and passage of time, proportionality under section 21 of the Extradition Act 2003, article 8 of the Convention, and alleged abuse of process. The central issue was whether the foreign sentencing process and its consequences made extradition unlawful or disproportionate.

1. Appeal dismissed. The Divisional Court held that the District Judge’s decision was not arguably wrong. The appellate court should interfere only if the lower court’s decision was wrong.
2. The high public interest in mutual confidence and respect between Member State judicial authorities was reaffirmed by reference to Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 (Admin). The statutory scheme reflected the Framework Decision and required proper respect for the requesting state’s judicial decisions.
3. Different national sentencing practices, including Romania’s aggregation and subsequent disaggregation of sentences, did not of themselves provide a basis for refusing extradition. The fact that English law used different approaches, including totality and remission, was not a proper gauge of the legality of the Romanian process.
4. Any challenge based on the alleged effect of article 26 of the Framework Decision, requiring detention served pursuant to an EAW to be deducted, could be raised before the Romanian courts. The right under article 466 of the Romanian Criminal Code to apply to reopen the criminal trial after return supplied an available domestic route. A subsequent failure to protect Convention rights could also be raised before the European Court of Human Rights.
5. The District Judge had properly assessed the interference with family life under section 21 of the Extradition Act 2003 and article 8. She was entitled to balance the seriousness of the offending, the passage of time, the effect on family life, and the public interest in extradition. Romania’s more severe treatment of driving without a licence was a national difference which the court had to respect.

The decision of the District Judge was upheld and the appeal dismissed.

1. High Court (Administrative Court): The appeal against the Westminster Magistrates’ Court’s order was dismissed. The court held that the District Judge’s decision was not wrong.
2. Westminster Magistrates’ Court: On 22 January 2019, District Judge Griffiths ordered the appellant’s return to Romania to serve a 12-month sentence.