Ciprian Chirila v Court of Appeal Iasi (Romania)

For the purposes of Article 5(4) of the ECHR, extradition may breach the requested person’s rights where a new issue arises concerning the lawfulness of detention following conviction and no effective domestic legal mechanism can determine that issue and, if necessary, secure release.

The analysis requires the court to ask whether a new issue concerning detention’s legality has arisen, whether a legal remedy exists to examine it, and whether that remedy is effective. A remedy is ineffective where its likely delay means that the requested person will complete the sentence before the issue can provide practical relief. The possibility of legislative change or an application to the European Court of Human Rights does not itself constitute an effective remedy.

The appellant challenged an order for his extradition to Romania to serve five years and four months’ imprisonment for offences involving organised crime and money laundering.

He relied on section 21 of the Extradition Act 2003, arguing that extradition would breach Article 5 of the ECHR. Romanian constitutional decisions made after his conviction had established that the relevant limitation provision was unconstitutional and operated retrospectively. His application to reopen the conviction had been rejected by the Romanian High Court of Cassation and Justice, which referred the constitutionality of the applicable annulment provision to the Constitutional Court.

The lower court concluded that extradition would not breach Article 5(4). The central issue on appeal was whether the retrospective effect of the later constitutional decision created a new issue concerning the legality of detention and, if so, whether Romania provided an effective remedy.

1. Appeal allowed. The lower court’s conclusion that extradition was compatible with Article 5(4) was wrong.
2. Article 5(4) requires a three-stage analysis: whether a new issue concerning the lawfulness of detention has arisen; whether there is a legal mechanism capable of addressing it; and whether that mechanism is effective.
3. The relevant new issue arose from the Romanian Constitutional Court’s 2022 determination that Article 155(1) of the Romanian Criminal Code was unconstitutional in its entirety and that the effect was retrospective. That development directly affected the legality of the appellant’s conviction, and therefore the sentence pursuant to which he would be detained. It was not merely a repetition of the limitation argument considered and rejected in the appellant’s 2018 appeal.
4. The appellant had no conventional remedy before the Romanian High Court of Cassation and Justice. Its decision of 14 February 2023 treated the annulment remedy as unavailable for a substantive legal error and referred the constitutionality of Article 426 of the Code of Criminal Procedure to the Constitutional Court.
5. Even if that reference could constitute a remedy in principle, it was not effective in the appellant’s circumstances. The evidence indicated that the proceedings could take several years, while the appellant would probably complete his sentence before any remedy could provide practical relief. The possibility of Parliament changing the law and an application to the European Court of Human Rights were likewise inadequate.
6. The appellant’s extradition would therefore breach Article 5(4). The extradition order could not stand.

• High Court (Administrative Court): allowed the appeal against the order for extradition, holding that extradition would breach Article 5(4) of the ECHR.
• Lower court: ordered the appellant’s extradition and held that Article 5(4) would not be breached.