Adrian Dragan v District Court of Baila (Romania)

Where an extradition warrant certifies an offence under the framework list, extraneous evidence on dual criminality is admissible only in very rare circumstances involving fundamental error, fundamental unfairness or bad faith. Civil findings do not ordinarily determine whether conduct satisfies the criminal-law test for dual criminality, particularly where the parties, issues and applicable tests differ.

A civil proceeding does not place a person in peril of conviction and cannot ordinarily trigger the double-jeopardy bar. A flagrant breach of the ECHR requires a high threshold, not established merely because domestic courts have rejected arguments based on an allegedly unconstitutional provision. Article 8 requires the seriousness of the offences and sentence, together with the public interest in extradition, to be assessed on the evidence.

The appellant challenged an order made by District Judge Clews on 6 January 2021 for his extradition to Romania under a conviction European Arrest Warrant. The warrant concerned convictions for attempting to pervert the course of justice and for using an invalid lease to obtain agricultural payments.

He argued that the agricultural-payments conviction failed the dual-criminality requirement, was barred by double jeopardy, and arose from a flagrantly unfair trial contrary to Articles 5 and 6 of the ECHR. He also challenged the Article 8 balancing exercise, the finding that he was a fugitive, and extradition as an abuse of process. The central issues were whether any statutory or Convention bar to extradition had been established.

1. Appeal dismissed. The challenges were either unarguable or failed on their merits.

2. Under sections 10 and 65 of the Extradition Act 2003, the framework-list certification meant that the appellant faced a high threshold before extraneous material could be admitted on dual criminality. Following Assange v Sweden, such circumstances were very rare and required fundamental error, fundamental unfairness or bad faith. None was shown.

3. The civil proceedings concerned a different party and different legal and factual questions from the criminal proceedings. Their findings could not simply be read across into the criminal question. Applying Ivey v Genting Casinos (UK), the warrant disclosed facts from which dishonesty by the standards of ordinary people could plainly be inferred. The conduct could therefore amount to fraud under sections 2 or 3 of the Fraud Act 2006.

4. The section 12 bar did not apply. Under Zdinjak v Croatia, the person must previously have been put in peril of conviction. A civil appeal involving a corporate entity did not satisfy that requirement.

5. The alleged unfairness did not reach the high threshold for a flagrant breach of Articles 5 or 6. Although Lungu v Romania illustrated circumstances in which Convention rights had been violated when a criminal court disregarded a civil determination, there was no sufficient basis to conclude that the unconstitutional wording of Article 52(3) had materially affected this conviction or that Romania’s judicial system posed a real risk of a flagrant breach.

6. The Article 8 challenge failed. The sentence of six years and four months and the seriousness of the offences supported a substantial public interest in extradition. The finding that the appellant was a fugitive was open to the district judge. The abuse-of-process argument added nothing material to the rejected challenges and was a second attempt to rely on the alleged conflict between the civil judgment and criminal conviction.

• High Court (Administrative Court): appeal against the extradition order made by District Judge Clews on 6 January 2021 dismissed.