Merticariu v Judecatoria Arad, Romania

Under section 20(5) of the Extradition Act 2003, entitlement to a retrial means a substantive right to receive one. A right merely to apply does not suffice where success depends on the requesting state deciding a substantive question, such as whether the requested person deliberately avoided the original trial.

The right may depend on compliance with procedural requirements. If the issuing authority confirms the right through box 3.4 of the European arrest warrant, the executing court must accept that confirmation. Otherwise, the evidence must establish the entitlement to the criminal standard. The executing court should not conduct a mini-trial about how the requesting state might determine a substantive contingency. If entitlement is not established, discharge is mandatory.

Merticariu v Judecatoria Arad, Romania concerned a European arrest warrant seeking the appellant's surrender to Romania to serve a sentence imposed after a trial which he did not attend. The District Judge found that he had neither been convicted in his presence nor deliberately absented himself. Nevertheless, the judge ordered extradition after finding that the appellant had a right to a retrial.

The Administrative Court dismissed the appellant's appeal in Merticariu v Judecatoria Arad, Romania [2022] EWHC 1507 (Admin). Chamberlain J considered himself bound by judicial comity to follow authority holding that section 20(5) of the Extradition Act 2003 could be satisfied by a right dependent on the requesting court deciding whether the requested person had deliberately avoided trial.

The central issue was whether section 20(5) requires an established substantive right to a retrial, or merely a right to apply for one subject to such a factual determination.

1. Appeal allowed unanimously. Lord Stephens and Lord Burnett delivered a joint judgment with which Lord Hodge, Lord Sales and Lord Burrows agreed. The extradition order was quashed and the appellant's discharge was ordered.

2. The natural meaning of section 20(5) of the Extradition Act 2003 requires the executing judge to decide whether the requested person is entitled to a retrial or an appeal amounting to a retrial. It does not ask whether the person is merely entitled to apply. The answer cannot depend on whether the requesting court might later decide a substantive factual question in the person's favour. BP v Romania [2015] EWHC 3417 (Admin) and Zeqaj v Albania [2013] EWHC 261 (Admin) had adopted incorrect constructions of section 20(5) and its equivalent in section 85(5).

3. A substantive retrial right may require the requested person to complete procedural steps, including requesting the retrial within a prescribed period. A proceeding which determines whether the person attended or deliberately avoided the original trial is different. It determines a substantive condition governing whether any retrial right exists.

4. This construction conforms to article 4a of Council Framework Decision 2002/584/JHA as amended. The former opportunity to apply for retrial was deliberately replaced by a right to a retrial. If the issuing judicial authority ticks box 3.4 of the prescribed warrant, that statement establishes the entitlement for section 20(5), subject to compliance with procedural requirements. The issuing authority thereby binds the requesting state to begin the retrial or appeal.

5. Where box 3.4 is not ticked, supplementary information may establish the right. The executing authority should not conduct a mini-trial about whether a substantive adverse finding in the requesting state is merely theoretical or remote. The warrant system is designed to proceed upon information supplied by the issuing judicial authority, with supplementary requests principally addressing ambiguity or confusion.

6. The construction also accords with article 6 of the European Convention on Human Rights. The right of a criminal defendant to attend either the original trial or a retrial is an essential fair-trial protection. Extradition must avoid exposing the person to a flagrant denial of justice.

7. The Romanian authority did not tick box 3.4 and repeatedly stated only that the appellant could request reopening. It never confirmed that he would receive a retrial. The criminal standard under section 206 was therefore not met. Section 20(7) required discharge, and the Supreme Court made that order under section 33(3)(a) and (b).

1. United Kingdom Supreme Court: In Merticariu v Judecatoria Arad, Romania [2024] UKSC 10, the court unanimously allowed the appeal, quashed the extradition order and ordered the appellant's discharge.
2. High Court, Administrative Court: In Merticariu v Judecatoria Arad, Romania [2022] EWHC 1507 (Admin), Chamberlain J dismissed the appeal because judicial comity required him to follow the Divisional Court's construction of section 20(5) of the Extradition Act 2003. In [2022] EWHC 3648 (Admin), he refused permission to appeal but certified questions of general public importance.
3. Westminster Magistrates' Court: The District Judge found that the appellant had not attended or deliberately avoided his trial, but concluded that he had a right to a retrial and ordered extradition.