Raul Lupsa v Timis Court, Romania

For the purposes of section 20 of the Extradition Act 2003, deliberate absence requires an unequivocal, knowing and intelligent waiver of the right to attend trial. A warning that trial may proceed in the accused’s absence will usually be required, but is not indispensable where precise, objective and compelling evidence shows deliberate evasion. Mere lack of diligence is insufficient.

Where an EAW clearly states that the requested person was aware of the proceedings and was represented by a mandated lawyer, the executing court should ordinarily rely on that statement. It should not conduct a granular inquiry into the foreign proceedings unless the warrant is ambiguous, contradictory or suggests an abuse of process.

The appellant appealed under section 26 of the Extradition Act 2003 against an order of the Westminster Magistrates’ Court directing his extradition to Romania to serve the outstanding part of a sentence imposed following a trial conducted in his absence.

Permission was granted on the question whether the District Judge had erred under section 20 of the Act in finding that the appellant had deliberately absented himself. The appellant challenged the assessment of his knowledge, the absence of an express warning, and the conclusion that he had mandated a lawyer. The central issues were the proper application of Bertino v Italy and the extent to which the executing court could investigate the information in the EAW.

1. Appeal dismissed. The extradition order was confirmed. The District Judge had not erred in finding that the appellant deliberately absented himself from trial.
2. Under section 20 of the Extradition Act 2003, deliberate absence requires an unequivocal, knowing and intelligent waiver of the right to attend. A warning that non-attendance may result in trial in absence will usually be required. It is not invariably necessary where precise and objective evidence demonstrates deliberate evasion of justice and makes attendance practically impossible. Mere lack of diligence does not suffice.
3. The District Judge had applied that test. His credibility findings were based on evidence that the appellant had engaged with the Romanian authorities, supplied contact details, opened an email containing procedural documents, knew that proceedings were active, and then ceased communication as trial approached. The prompt appeal after conviction was also inconsistent with ignorance of the proceedings.
4. The appellant’s case was materially different from Bertino v Italy, where the defendant did not know that a prosecution had been initiated or know the charges, trial date or place. Here, the evidence supported the exceptional inference that the appellant knowingly placed himself beyond the reach of justice. The absence of an express warning was therefore not decisive.
5. Following Cretu v Suceava and Merticariu v Romania, the executing court should ordinarily rely on clear Article 4a information in the EAW. It should not determine afresh whether a mandate was validly given under Romanian law or conduct a detailed factual inquiry, absent ambiguity, contradiction or abuse of process. Box (d) clearly stated that the appellant was represented by a publicly assigned lawyer and that Romania treated him as falling within the relevant exception.
6. The appellant’s challenge to the Romanian classification of his representation and retrial status sought to relitigate matters outside the executing court’s function. Section 20 was satisfied and discharge was not required.

• High Court (Administrative Court): The appeal against the extradition order was dismissed and the order confirmed.
• Westminster Magistrates’ Court: District Judge Curtis ordered extradition on 16 August 2024.