Merticariu v Judecatoria Arad, Romania

The Supreme Court considered the proper construction of section 20(5) of the Extradition Act 2003. The court held that a judge at an extradition hearing must decide whether the requested person would be entitled to a retrial (or on appeal to a review amounting to a retrial) in the requesting state, not merely whether the person has a right to apply for a retrial.

The court reasoned that the natural meaning of "entitled" requires an actual entitlement that is not contingent on a substantive factual finding to be made by the requesting state (other than ordinary procedural steps). That construction accords with the Amended Framework Decision (in particular article 4a and the EAW pro forma box 3.4), the United Kingdom's previous approach to assurances under article 5(1) of the original Framework Decision, and the Article 6 ECHR right to be present at trial. Because the Romanian authorities did not tick box 3.4 and the available supplementary material did not show an entitlement to a retrial (only a right to request reopening), the judge should have answered section 20(5) in the negative and discharged the appellant.

Background and parties:

• The case concerned an appeal from a High Court (Administrative Court) decision upholding an extradition order made by a district judge at Westminster Magistrates' Court. The appellant, Ionut-Bogdan Merticariu, was arrested on a European Arrest Warrant issued by Romania seeking his surrender to serve a sentence imposed in his absence for burglary.
• The Crown Prosecution Service acted for the issuing judicial authority in extradition proceedings in the United Kingdom.

Nature of the application and procedural posture:

• The proceedings concerned an extradition hearing under Part 1 of the Extradition Act 2003. The district judge ordered extradition after finding that the appellant had not been convicted in his presence, had not deliberately absented himself, and that he had a right to a retrial. The appellant appealed to the High Court; Chamberlain J dismissed the appeal. The respondent then sought leave to the Supreme Court on certified points of law, and the Supreme Court heard the appeal.

Issues framed by the court:

1. Whether section 20(5) of the Extradition Act 2003 requires the executing judge to be satisfied that the requested person would be entitled to a retrial (an actual entitlement) rather than merely having a right to apply for a retrial in the requesting state.
2. If the entitlement is contingent on a finding by a court in the requesting state that the accused was not deliberately absent, whether the executing judge may nevertheless answer section 20(5) in the affirmative where that contingency is "theoretical" or "so remote that it can be discounted" (a certified secondary question which the court observed did not arise on the facts).

Court's reasoning and resolution:

• The court held that the ordinary meaning of "entitled" requires an entitlement and not merely a right to apply. An answer of "perhaps" or one dependent on a substantive factual finding by the requesting court would not satisfy section 20(5).
• This construction was supported by the structure and purpose of the Amended Framework Decision (FD 2009), notably article 4a and the EAW pro forma (box 3.4), which creates a clear mechanism for the issuing authority to indicate that a retrial will be afforded on surrender. If box 3.4 is ticked, the executing authority may treat the person as entitled to a retrial subject to procedural steps; if it is not ticked, the executing authority retains a discretion to refuse surrender under article 4a but must decide entitlement under section 20(5) consistently with the Convention.
• The court emphasised that the United Kingdom had required an assurance of a retrial, not merely a right to apply, and that conforming interpretation with EU instruments and compliance with Article 6 ECHR support construing section 20(5) as requiring an entitlement to a retrial.
• Applying that test, the Supreme Court found that the Romanian issuing authority had not ticked box 3.4, the EAW and subsequent exchange only established a right to request reopening (article 466 Romanian Code) and not an entitlement to a retrial. Accordingly the correct answer to section 20(5) was negative and the district judge should have discharged the appellant.

Other points:

• The court disapproved earlier authorities (BP v Romania and Zeqaj v Albania) to the extent they treated a contingent right to apply as sufficient to satisfy section 20(5).
• The court observed that the secondary certified question about "theoretical" contingencies did not require determination on the facts of this case, but gave guidance that the executing authority should not conduct a mini-trial into the likelihood of domestic decisions in the issuing state; the issuing authority should provide clear information in the EAW or under article 15 if necessary.

Appeal allowed. The Supreme Court held that section 20(5) of the Extradition Act 2003 requires the executing judge to be satisfied that the requested person would be entitled to a retrial (or on appeal to a review amounting to a retrial) in the requesting state, not merely that the person would have a right to apply for one. Applying that construction, there was no evidence that the appellant would be entitled to a retrial on surrender; the extradition order should have been quashed and the appellant discharged under section 20(7) and section 33(3) of the 2003 Act.

District Judge (Westminster Magistrates' Court) ordered extradition (judgment reserved 1 September 2020; order given 26 October 2020). Appeal to the High Court (Administrative Court) - Chamberlain J dismissed the appeal: [2022] EWHC 1507 (Admin). Permission to appeal to the Supreme Court was granted; appeal heard by the Supreme Court and allowed: [2024] UKSC 10.