Bogdan Ovidiu Cristian Dimin v Alba Iulia Court of Law, Romania

On an appeal under section 26(4) of the Extradition Act 2003, the High Court must determine whether the statutory conditions for overturning an extradition order are met. Where a requested person was tried in absence, deliberate absence requires an unequivocal, knowing and intelligent waiver of the right to attend trial. Fugitive status alone is insufficient, but actual knowledge of the possibility of trial in absence, combined with conduct placing the person beyond the requesting state’s jurisdiction, may establish the waiver.

A right to request a retrial is not the same as an entitlement to a retrial. In an Article 8 balancing exercise, the public interest in extradition is especially weighty where the person is a fugitive. Family hardship, delay, electronically monitored bail and possible early release must be assessed, but will not necessarily outweigh that public interest.

The appellant appealed under section 26(4) of the Extradition Act 2003 against a District Judge’s order for his extradition to Romania to serve a 16-month sentence for two theft offences committed in 2016. He had been convicted in his absence.

The issues were whether he had deliberately absented himself from trial for the purposes of section 20(3), whether he would have been entitled to a retrial under section 20(5), and whether extradition would be a disproportionate interference with his and his family’s rights under article 8 of the European Convention on Human Rights. The appeal also concerned fresh evidence and the effect of the appellant’s family circumstances, electronically monitored curfew and possible early release.

1. Appeal dismissed. The appellant failed to show that the District Judge ought to have decided any question differently, or that the unraised section 20 issue would have required discharge.
2. Fresh evidence available at the extradition hearing was refused. Evidence concerning subsequent events, principally the birth of the appellant’s child, was admitted. The High Court then made its own de novo assessment of Article 8 proportionality.
3. The proposed challenge to factual findings was unarguable. The District Judge was entitled to rely on clear Further Information from the Romanian judicial authority and to prefer it to the appellant’s evidence, notwithstanding that the appellant had not been cross-examined.
4. Applying Bertino, deliberate absence requires an unequivocal, knowing and intelligent relinquishment of the right to attend trial. The requesting authority proved that the appellant had been warned that he could be tried and sentenced in his absence, knew the prosecution remained ongoing, left Romania and did not provide his new address.
5. The section 20(5) issue was addressed for completeness. The EAW and Further Information described only a right to request a retrial. Under Merticariu, that was insufficient. The proposed Romanian retrial depended on a court deciding substantive eligibility, and conflicting Romanian authority created further uncertainty.
6. For article 8, the child’s interests were a primary consideration. The appellant’s fugitive status required very strong counterbalancing factors. The family hardship, delay, electronically monitored curfew and possible early release did not make extradition disproportionate.

• High Court (Administrative Court): the District Judge ordered extradition on 17 October 2022. The High Court dismissed the appeal, admitted the 2024 fresh evidence, refused the 2022 evidence and refused the proposed amendment.