NICOLETTA PRUSIANU v BRAILA COURT OF LAW

This is an appeal against an extradition order to Romania pursuant to a conviction Extradition Arrest Warrant (ExAW). The court considered three principal statutory issues under the Extradition Act 2003: (i) whether extradition was barred by s.13 (extraneous considerations) because the appellant, a transgender woman of Roma ethnicity, might be prejudiced at retrial or detained or restricted by reason of her gender, perceived sexual orientation or ethnicity; (ii) whether extradition was disproportionate under Article 8 ECHR; and (iii) whether extradition would be unjust or oppressive under s.25 (physical or mental condition).

The court held that the appellant failed to establish the cogent evidence needed to satisfy s.13 or s.25 but allowed the appeal on Article 8 grounds. The judge accepted that Romania had provided specific written assurances about prison regime and protection measures, but identified a material protection gap: the 21-day quarantine and observation period at Rahova Prison during which the initial vulnerability assessment by the Commission occurs only after quarantine. The court found the index offences to be of relatively low seriousness and concluded that, when weighed cumulatively with the protection gap and the impact on the appellant's gender identity and private life, extradition would be a disproportionate interference with Article 8 rights.

Background and parties: The appellant, a 23-year-old transgender woman of Roma ethnicity, was the subject of a conviction Extradition Arrest Warrant issued by Romania in November 2020 and certified in April 2021. She was convicted in absence in Romania and sentenced to 12 months' custody for a series of five shoplifting incidents. District Judge Griffiths ordered extradition on 5 October 2021. The appellant appealed to the High Court on three grounds; a fourth Article 3 ground was stayed.

Nature of the application: The appellant sought to overturn the extradition order. Relief sought included discharge on the basis of s.13 Extradition Act 2003 (extraneous considerations), relief under Article 8 ECHR (private life) arguing disproportionality, and discharge under s.25 Extradition Act 2003 (physical or mental condition).

Issues framed:

• Whether there was cogent evidence that, if extradited, the appellant might be prejudiced at retrial or punished, detained or restricted in her personal liberty by reason of her gender identity, perceived sexual orientation or Roma ethnicity (s.13( b )).
• Whether the proposed extradition would be a disproportionate interference with the appellant's Article 8 ECHR rights, taking into account assurances, country materials and the appellant’s private and family life.
• Whether the appellant’s physical or mental condition (broadly construed) made extradition unjust or oppressive under s.25.

Court’s reasoning:

• Section 13: The court accepted that "gender" in s.13 can encompass transgender status but found the appellant did not produce "cogent evidence" of a reasonable chance of discriminatory action by Romanian judicial or state authorities at retrial or in punishment/detention. The available country material demonstrated societal and institutional issues but fell short of proving a real risk that state actors would act against the appellant for reasons covered by s.13.
• Assurances and Article 8: Romania provided two written prison assurances describing quarantine, assessment and regimes and specific vulnerability assessment criteria. The judge regarded the assurances as generally clear and specific but identified a protection gap: the 21-day quarantine/observation period at Rahova Prison during which the Commission’s initial vulnerability assessment and assignment to an appropriate enforcement regime occur only after the quarantine. That gap exposes the appellant to a period detained with young male convicted prisoners without the protective assessment having been applied. The Court also noted the Assurances used the appellant’s male name and male pronouns, which undermined respect for her gender identity and contributed to the Article 8 assessment. Balancing the strong public interest in extradition and the appellant’s limited private-life ties in the United Kingdom against the protection gap, the subjective distress, and the relatively low seriousness of the offending, the court concluded extradition would be a disproportionate interference with the appellant’s Article 8 rights.
• Section 25: The court considered that "condition" in s.25 is broader than health but found no precedent or cogent evidence establishing that the appellant’s physical condition, even if inclusive of physical changes from hormone therapy and procedures, met the high threshold of being unjust or oppressive to extradite. The Article 8 and s.25 analyses overlap but led to different conclusions.

Disposition: The court admitted fresh evidence, dismissed the appeal on s.13 and s.25 grounds but allowed the appeal on Article 8 grounds and set aside the extradition order for that reason.

This appeal was allowed in part. The High Court dismissed the appellant's challenges under s.13 (extraneous considerations) and s.25 (physical or mental condition) of the Extradition Act 2003 for want of cogent evidence. However, the court allowed the appeal under Article 8 ECHR, concluding that extradition would be a disproportionate interference with the appellant’s private life because of a material protection gap in the assurances (the 21-day quarantine period before a vulnerability assessment), the failure to respect the appellant’s gender identity in official assurances, and the relatively low seriousness of the shoplifting offences. Fresh evidence was admitted and the extradition order was set aside on Article 8 grounds.

District Judge Griffiths ordered extradition after an oral hearing on 6 September 2021 and gave a reserved judgment dated 5 October 2021. The appellant appealed to the High Court (this judgment) where permission to appeal was granted on three grounds. Neutral citation: [2022] EWHC 1929 (Admin).