Popoviciu v Curtea De Apel Bucharest (Romania)

The appeal concerned the correct legal standard to be applied in a conviction extradition case where it is alleged that the requested person's trial in the issuing state was a flagrant denial of justice and that return would therefore violate Articles 5 and 6 of the European Convention on Human Rights. The Supreme Court held that, except for the recognised and narrow exception where the evidence relied upon was obtained by torture, a requested person in a conviction case must prove on the balance of probabilities that there was a flagrant violation of Article 6 so as to engage the Soering principle and bar extradition under the Extradition Act 2003. The Court explained the analytical distinction between proof of past facts and assessment of future risk, and concluded that the High Court had applied the wrong test by treating the case as one of establishing a ‘real risk’ rather than proving past unfairness.

The Court nevertheless dismissed the appeal under section 43(4) of the Extradition Act 2003 because the European Arrest Warrant had been withdrawn; it delivered its ruling on the certified question and dealt with associated issues, including fresh evidence, drawing inferences from the Romanian authorities' response, and the availability of an effective domestic remedy in Romania.

This was an appeal from the High Court's decision (Holroyde LJ and Jay J) of 11 June 2021 ([2021] EWHC 1584 (Admin)) which had allowed Mr Popoviciu's appeal against an extradition order made by the Westminster Magistrates' Court (District Judge Zani) and discharged him under section 27 of the Extradition Act 2003 on the basis that there were substantial grounds for believing there was a real risk that his trial in Romania had been flagrantly unfair.

Background and procedural history:

• The respondent, convicted in Romania after a lengthy trial presided over by Judge Tudoran, faced extradition under a European Arrest Warrant dated 3 August 2017. District Judge Zani ordered return on 12 July 2019. The respondent successfully appealed to the High Court on s.27 grounds. The High Court certified a point of law of general public importance and (after the Supreme Court granted permission) the Supreme Court heard the appeal in May 2023. After the hearing the European Arrest Warrant was withdrawn and the Supreme Court dismissed the appeal pursuant to s.43(4), but delivered judgment addressing the certified question.

Nature of the claim and issues:

• The respondent sought to resist return on the basis that his Romanian trial had been so flagrantly unfair that extradition would result in a breach of Articles 5 and 6 ECHR (the Soering principle in conviction cases). Key issues were: (i) the proper standard of proof in a conviction extradition case alleging past flagrant unfairness (real risk test versus balance of probabilities); (ii) whether the High Court should have drawn adverse inferences from the Romanian prosecutor's limited response to requests for information; (iii) the admission of fresh evidence and the Fenyvesi criteria for remittal; and (iv) whether Romania offered an effective domestic remedy to review the lawfulness of detention arising from the alleged unfair trial.

Court’s reasoning:

• The Supreme Court emphasised the legal distinction between proving past events and forecasting future risk, drawing upon domestic authority (Mallett; Fernandez) and Strasbourg jurisprudence (Soering; Othman; Merabishvili). It concluded that, in conviction cases, allegations of a past flagrant denial of justice are historical facts which (subject to the special torture exception established in Othman) must be proved on the balance of probabilities; the ‘real risk’ formulation is appropriate in forward-looking (accusation) contexts or in assessing prospective treatment, but not for proof that a past trial was flagrantly unfair. The Court explained that the Strasbourg practice of seeking strong, clear and concordant inferences when addressing past violations supports this approach, and that the unique nature of torture justifies the limited relaxation of proof in that context only.
• The Court held that the High Court had therefore applied the wrong standard. It also addressed the respondent’s alternative contention about the Romanian authorities’ response and confirmed that while adverse inferences can be drawn in some circumstances, the High Court had been entitled on the evidence to reject the respondent’s case on the balance of probabilities. The Supreme Court refused remittal to admit a further tranche of late evidence on the Fenyvesi criteria, finding the additional material could have been obtained with reasonable diligence and would not be decisive.
• The Supreme Court accepted that Article 5(4) requires an effective domestic mechanism to review new issues of lawfulness arising after conviction; because the availability and effectiveness of remedies in Romania was a live and arguable point, it would (had the warrant not been withdrawn) have remitted that discrete issue to the High Court for consideration.

Disposition: The appeal was dismissed under s.43(4) because the European Arrest Warrant had been withdrawn; however, the Court answered the certified question and set out the governing principles.

The appeal was dismissed under section 43(4) of the Extradition Act 2003 because the European Arrest Warrant was withdrawn. On the certified question the Supreme Court held that, in a conviction extradition case, a requested person must prove on the balance of probabilities that his trial amounted to a flagrant denial of Article 6 rights; only the narrow Othman/torture exception permits relaxation of that standard. The Court would, had the warrant remained in force, have answered the certified question accordingly and would have remitted the discrete issue of availability of an effective domestic remedy in Romania to the High Court.

Extradition hearing before District Judge Zani, Westminster Magistrates' Court (order for return 12 July 2019). Appeal to the High Court (Holroyde LJ and Jay J) allowed 11 June 2021: [2021] EWHC 1584 (Admin). High Court certified a point of law and initially refused permission to appeal to the Supreme Court; the Supreme Court later granted permission to appeal (27 May 2022). Appeal heard by the Supreme Court on 16–17 May 2023; the European Arrest Warrant was withdrawn on 13 July 2023 and the Supreme Court dismissed the appeal by order under section 43(4) on 24 July 2023, while delivering substantive judgment addressing the certified question.