IONUT BURGHELEA v BUCHAREST TRIBUNAL ROMANIA

For the purposes of section 20 of the Extradition Act 2003, a person who was absent from trial may be treated as present where he knowingly instructed a lawyer of his choice and was effectively represented. A request to participate by video-link does not terminate that representation where the request cannot be accommodated and representation continues. A person may have a right to a retrial, yet lose the practical opportunity to exercise it by failing to provide a current address for service. An immaterial factual error by the extradition judge does not justify allowing an appeal where the findings material to the statutory questions remain sound.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Hamilton’s decision at Westminster Magistrates’ Court on 21 December 2020 ordering his extradition to Romania under section 21(3). The conviction warrant concerned a Romanian conviction for fraud.

The appellant had not attended his trial in Romania. The issues were whether he had deliberately absented himself, whether he was effectively represented by a lawyer of his choice, whether his request to attend by video-link affected that representation, and whether he was entitled to a retrial or review amounting to a retrial.

1. The appeal was dismissed. The District Judge had incorrectly described the appellant as a fugitive, because he had left Romania before proceedings began and could not leave the United States to attend the hearings. That error did not affect the outcome.

2. Under section 20 of the Extradition Act 2003, the appellant was correctly treated as present at his trial through representation. The European Arrest Warrant and further information established that he knew of the proceedings, instructed and paid lawyer Marian Lungu, remained in regular contact with him, and gave him instructions. The absence of a formal documentary mandate did not alter the reality of the instructions or representation.

3. The appellant’s request to participate by video-link did not bring the effective representation to an end. The technology was unavailable in Romania at the relevant time, but his lawyer continued to represent him. His involvement in the proceedings, including discussions about the simplified procedure, supported the conclusion that the representation was effective.

4. The principles in Cretu v Romania made clear that an accused who has mandated a lawyer to represent him is not absent for section 20 purposes, however he became aware of the trial. The appellant also had a right to a retrial, but he failed to exercise it within the applicable period. The Romanian court could serve the judgment at the only address available to it because neither the appellant nor his lawyer had supplied a current United States address.

5. The decision under appeal was therefore correct within section 27(2) of the Extradition Act 2003, and the appellant’s extradition was not barred.

• High Court (Administrative Court): The appeal against the extradition order was dismissed.
• Westminster Magistrates’ Court: District Judge Hamilton ordered extradition on 21 December 2020 under section 21(3) of the Extradition Act 2003.