IONUT-BOGDAN MERTICARIU v JUDECATORIA ARAD, ROMANIA

Under section 20 of the Extradition Act 2003, entitlement to a retrial may be established even where reopening depends on a requesting state court deciding whether the person was deliberately absent, provided the case falls within the approach required by binding Divisional Court authority. A single judge should follow that authority unless there is an exceptional reason to depart. On an Article 8 appeal, the court does not simply reweigh factors. It asks whether the decision was wrong because crucial matters required materially different weight. Post-Brexit immigration consequences require comparison of the extradition scenario with the counterfactual. Fresh evidence must be decisive. The appeal was dismissed.

The appellant challenged an order for his extradition to Romania under a European arrest warrant. He was sought to serve an 18-month sentence for a commercial burglary committed in 2016. The District Judge found that he had not deliberately absented himself from his trial, but concluded that Romanian law gave him a right to seek a retrial under Article 466 of the Romanian Code of Criminal Procedure. The District Judge also held that extradition would not disproportionately interfere with Article 8 rights.

The appeal concerned retrial rights, the Article 8 proportionality assessment, post-Brexit immigration consequences, fresh evidence and passage of time.

1. Retrial rights. The statutory scheme required separate consideration of presence at trial, deliberate absence and entitlement to a retrial under section 20 of the Extradition Act 2003. The requesting authority bore the burden of proving the relevant matters to the criminal standard. Although there was force in the argument that entitlement normally means an automatic right under foreign law, the court was bound by BP v Romania [2015] EWHC 3417 (Admin). That authority treated a retrial conditional on a requesting-state court’s finding that the person was not deliberately absent as sufficient to satisfy section 20(5). There was no material distinction, and judicial comity required the court to follow the Divisional Court. Ground 1 therefore failed.
2. Article 8. The appellate task was to identify whether crucial factors required materially different weight so that the District Judge’s decision was wrong. The District Judge was entitled to assess seriousness by reference to the facts in the European arrest warrant and the 18-month custodial sentence, rather than the appellant’s account. He took the family consequences into account and was entitled to draw common-sense inferences from the evidence. His erroneous reference to the appellant as a fugitive was not material.
3. Post-Brexit immigration consequences required comparison between the position following extradition and the counterfactual position if extradition were refused. The court agreed with the reasoning in Piekarski v Poland [2022] EWHC 1088 (Admin) and Gurskis v Latvia [2022] EWHC 1305 (Admin). There was a strong possibility that the appellant would not be readmitted after serving a sufficiently long sentence, but no particular reason to believe that he would otherwise be deported. The resulting extended separation remained insufficient to outweigh the public interest in honouring international obligations.
4. A delay of less than three years between offence and conviction was not sufficiently egregious to alter the Article 8 balance. The fresh evidence was not decisive within the test in Hungary v Fenyvesi [2009] EWHC 231, and permission to adduce it was refused. None of the grounds was made out. The appeal was dismissed.

• Westminster Magistrates’ Court: District Judge Ezzat ordered the appellant’s extradition in a judgment handed down on 26 October 2021.
• High Court (Administrative Court): Permission to appeal was granted on the retrial-rights, Article 8 and passage-of-time grounds. The appeal was dismissed.