Ionut – Mirel Todirica v Pascani Court of Law (Romania)

For section 20(3) of the Extradition Act 2003, the relevant trial is the hearing which resulted in the decision giving rise to the extradition request. A later hearing converting an unpaid fine into imprisonment is not a trial where the exercise is essentially mathematical and involves no discretion to determine the nature or level of sentence. The requesting state must prove to the criminal standard that the person unequivocally and intentionally waived the right to attend. That requirement may be satisfied where the person knew of the proceedings, had been warned of the consequences of non-payment, and deliberately failed to keep the authorities informed of his address.

The appellant appealed against an extradition order made by a District Judge on 29 January 2024. The request concerned a Romanian conviction warrant for 320 days’ imprisonment imposed in 2019 after the appellant failed to pay a fine imposed in 2017 for driving offences.

The District Judge found that the appellant had not attended either hearing, knew of the proceedings, and had deliberately absented himself. Permission to appeal was granted on one ground. The issues were whether the 2019 enforcement hearing was the relevant trial under section 20(3) of the Extradition Act 2003, and whether the appellant had unequivocally waived his right to attend.

1. Appeal dismissed. The District Judge had made no material error in applying section 20(3) of the Extradition Act 2003.
2. The statutory phrase “trial which resulted in the decision”, read conformably with article 4a of the amended Framework Decision and the relevant agreement, refers to the trial resulting in the decision forming the basis of the extradition request. However, the 2019 hearing was not such a trial in the relevant sense. Under article 63 of the Romanian Criminal Code, non-payment of a fine in bad faith led to replacement of the unpaid fine-days by a corresponding number of prison days. On the evidence, that exercise was essentially mathematical.
3. A possible need to determine whether non-payment was in bad faith did not create the necessary sentencing discretion. The court was not deciding afresh the guilt, nature or level of the sentence. The fine always carried the potential consequence of imprisonment for non-payment.
4. The court applied the principles explained in Bertino v Italy concerning unequivocal and effective waiver, including the importance of knowledge of the consequences of non-attendance. The appellant had been notified in 2017 that non-payment in bad faith could result in imprisonment, and he had previously been informed of his obligation to notify changes of address.
5. Alternatively, if the 2019 hearing had been the relevant trial, the evidence supported the District Judge’s finding that notification had been sent to the appellant’s Romanian address. The appellant had deliberately failed to keep the authorities informed of his address and had no credible evidence showing a different position in 2019. His voluntary absence therefore amounted to an effective waiver of the right to attend.
6. The translated evidence could have been clearer. It was unnecessary to request further information under article 613 of the Trade and Co-operation Agreement. The extradition order stood.

• High Court (Administrative Court) — The appeal against the extradition order made by DJ Law on 29 January 2024 was dismissed: [2024] EWHC 3113 (Admin).