Dinca v District Court of Sector 5 Bucharest (Romania)

For a requested person to have deliberately absented himself from trial under section 20(3) of the Extradition Act 2003, the requesting authority must prove an unequivocal waiver of the right to attend, to the criminal standard. Where the person was not specifically warned that the trial could proceed in their absence, strong evidence is required. Mere lack of diligence or departure from the jurisdiction is insufficient.

Where box D3.4 of a European arrest warrant is correctly completed, it provides a guarantee of a right to retrial which the executing court may rely upon. Further information may resolve ambiguity, but the court need not conduct a wider inquiry once the guarantee is confirmed.

The claimant appealed against an order made by a District Judge at Westminster Magistrates’ Court on 17 May 2023 directing his extradition to Romania to serve a one-year sentence for driving without a valid licence.

The claimant had not attended the Romanian trial. The warrant stated both that he had been informed of the proceedings and that, after surrender, he would be entitled to a retrial under box D3.4. The District Judge found that he had deliberately absented himself and, alternatively, that he would have a right to retrial.

On appeal, the claimant challenged those conclusions under section 20 of the Extradition Act 2003. The central issues were whether the evidence established an unequivocal waiver of the right to attend trial and whether the warrant guaranteed a right to retrial.

1. The court admitted further information supplied by the Romanian judge because it concerned the newly raised section 20 issue and was capable of being decisive. Fenyvesi applied.

2. The facts did not establish that the claimant had deliberately absented himself from trial within section 20(3) of the Extradition Act 2003. The requesting authority bore the burden of proving waiver to the criminal standard. Since it could not show that the claimant had specifically been told that the trial might proceed in his absence, strong evidence was required before waiver could be inferred. His departure, failure to update his address and disconnected telephone did not satisfy that demanding requirement. The approach in Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9 governed the issue.

3. The appeal nevertheless failed under section 20(5). Merticariu v Judecatoria Arad, Romania [2024] UKSC 10 established that, absent ambiguity or an abuse of process, the executing court was not entitled to look beyond the relevant statement in the warrant. The Romanian judge’s later information conclusively confirmed that the tick in box D3.4 was correct.

4. The wording of box D3.4 guaranteed a right to apply for a retrial in which the claimant could participate and in which the merits, including fresh evidence, could be reconsidered. That guarantee could be relied upon without further inquiry. The requirements of sections 20(5) and 20(8) were therefore satisfied.

5. The appeal was dismissed. The extradition order stood.

• Westminster Magistrates’ Court: On 17 May 2023, the District Judge ordered the claimant’s extradition to Romania.
• High Court (Administrative Court): Permission was granted to appeal on the section 20 ground. The appeal was dismissed and the extradition order remained in force.