Oprea v Constanta Tribunal (A Romanian Judicial Authority)

On an extradition appeal concerning a conviction in absentia, the requesting authority must prove each element of the statutory scheme to the criminal standard. Deliberate absence is not established merely by showing evasive conduct or difficulty serving trial documents. The court must decide whether the requested person knowingly waived the right to attend trial, treating any lack of diligence as evidential rather than conclusive. If deliberate absence is not proved, extradition may proceed only if a compliant retrial or review is established with sufficient certainty. Material ambiguity about that right requires discharge.

The applicant renewed permission to appeal an order by District Judge Snow requiring his extradition to Romania under Extradition Act 2003. The Romanian request concerned enforcement of an educational custodial measure imposed after proceedings in which the applicant was absent but represented by lawyers at relevant hearings.

The appeal challenged the District Judge’s conclusion that the applicant would be entitled to a retrial complying with the statutory safeguards. The central issues were whether he had deliberately absented himself from the proceedings and, if not, whether Romania had established a sufficient right to a compliant retrial.

1. Outcome. Permission was granted. The appeal was allowed and the applicant was discharged.
2. Under section 20 of the Extradition Act 2003, the requesting authority bears the burden of proving each element to the criminal standard. The court must proceed through the statutory questions in sequence: presence at trial; deliberate absence; entitlement to a retrial or review amounting to a retrial; and the safeguards required by section 20(8).
3. The seven propositions adopted by the Divisional Court in Szatkowski v Regional Court in Opole [2019] EWHC 883 (Admin) were authoritative for section 20(3). A person’s evasive conduct, including steps making service difficult or impossible, does not itself prove deliberate absence. The ultimate question is whether the person knowingly waived the right to a trial. Manifest lack of diligence may be considered as evidence bearing on that question.
4. The District Judge had found that the applicant’s conduct reflected wishful thinking rather than an attempt to evade justice. In light of that finding, and notwithstanding his failure to notify the Romanian authorities of changes of address, deliberate absence and tacit waiver were not proved.
5. The relevant request was based on the later sentence. The further information suggested that, because the applicant had instructed a lawyer, Romanian law might deprive him of a rehearing. The EAW’s reference to possible dissolution of the earlier decision was ambiguous, and the further information did not remove the uncertainty. The court therefore lacked sufficient confidence that a retrial or rehearing complying with section 20(8) would be available.

• High Court (Administrative Court): permission granted on the renewed application; appeal allowed and applicant discharged.
• District Judge Snow: extradition ordered on 20 July 2020 under the Extradition Act 2003.
• High Court: Fordham J refused permission on paper on 15 October 2020. The matter was then listed as a rolled-up hearing.