England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL Friday, 7th October 2011
		Friday, 7th October 2011

1. MR JUSTICE IRWIN: In this case the appellant, Ernest Bohm, was born on 27th July 1954 and is a Romanian citizen. It is alleged that between September and October of 2008 he committed sexual offences involving an underage girl in Romania. On 5th January 2010, he was tried in his absence and a three year prison sentence passed upon him.
2. On 23rd February 2010, a European Arrest Warrant was issued out of the Petrosani Court in Romania. On 2nd March 2010, the warrant was certified by the Serious Organised Crime Agency, the relevant body within England and Wales for that process. Mr Bohm was arrested in the United Kingdom on 1st July 2010 and on the same date the first hearing of his extradition proceedings took place.
3. The substantive proceedings then came before the Magistrates' Court, initially on 8th July but following adjourned hearings through to 12th January 2011, and the learned Deputy Senior District Judge gave an order for his extradition. On 7th October he appealed.
4. Because the sentence exceeded two years' imprisonment, section 20 of the Extradition Act 2003 ("the Act") is engaged. Section 20 applies to circumstances where the extradition request relates to a conviction or convictions recorded in absentia, that is to say when the potential extraditee was not present at the time of the conviction. The section sets out a three stage procedure for dealing with such requests. The first question the judge must ask is whether the defendant was absent, and the second whether he or she deliberately absented himself from the trial which gave rise to the conviction. The third question arises if the judge finds that the defendant did not deliberately absent himself from his trial. The question then is whether, under the law of the requesting state, the defendant would be entitled to a retrial on appeal or a review amounting to a retrial, and for the present purpose I emphasise the word "entitled".
5. That retrial is defined so as to include expressly the rights conferred under Article 6(3)(c) and (d) of the European Convention on Human Rights. If the answer to that third question, if that third question arises, is "no" or "perhaps" or "in certain circumstances", then that is not enough, the statutory test is not met, and it is agreed by all counsel, who have so helpfully taken part in making written and oral submissions, that the defendant in those circumstances must be discharged.
6. As the learned Deputy Senior District Judge made clear, in the present appellant's case there is no issue but that he was convicted in his absence and that he did not deliberately absent himself from his trial, and it follows that the third question arising under section 20 applies in this case. Therefore she asked herself, and on this appeal I must ask myself: in the event of Mr Bohm's return to Romania, would he be entitled (again with emphasis added) to a retrial or to a review amounting to a retrial?
7. So far as the present European Arrest Warrant issuing from Romania is concerned, it declares that the provisions of Article 522 of the Code of Penal Procedure, that is to say the relevant Romanian code, guarantees the "rejudging of the case" by the judge who judged in the first instance, at the request of the person convicted in his or her absence and for whom the extradition is requested. And so, on the face of the warrant, the position was advanced that the rights of Mr Bohm upon return would satisfy the requirements of section 20 and answered the third question arising for the extraditing court in a way that was favourable to extradition.
8. However, as all counsel, including those who represent Romania, have made clear, the true position is not so simple. The accumulated evidence in this case demonstrates that, under Article 522 of the Code which applies to this case in Romania, the right to a retrial is not in fact automatic but rests on the discretion of the Romanian court.
9. A similar question was examined by Mitting J in the English authority of Da An Chen v Government of Romania [2006] EWHC 1752. In the course of that decision, Mitting J said this:

'Entitled' as a matter or ordinary language must mean 'has the right under law'. It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion."

As counsel has said, put shortly, the right has to be automatic, and cannot be automatic if it is subject to the exercise of discretion, since the discretion might be exercised against retrial.

10. In the course of her judgment, the Learned Deputy Senior District Judge concluded that, firstly, the Romanian court retained the discretion in dealing with the application for a retrial if the application is deemed baseless and that court could therefore reject it. Erroneously, she went on to conclude that that situation which she had correctly identified was compliant with section 20 of the Act, which it is agreed it is not.
11. It is not necessary for me in any detail to amplify that factual situation, but it may be worthwhile adding very shortly that the evidence of Ms Viviana Onaca, the director of the Directorate for International Law and Judicial Cooperation, is quite clear about the operation of Article 522 of the Romanian code. She states in her evidence that the court would examine all the merits of the request for a retrial and the relevant aspects which can be deduced from the case file, including, for example, whether reasonable efforts had been made to notify the defendant of a pending trial and other aspects of the procedure. It is quite clear from her evidence that there is not an automatic and unqualified right to an actual retrial.
12. Because of problems of this nature, a new Framework Decision addressing this problem, which I shall call the 2009 Framework Decision, has been promulgated so as to bring about a more uniform approach amongst the participating states within the European Arrest Warrant system: those states that we refer to as Category 1 states. As I understand it, two countries, one of them being Romania, have not yet made an act of accession to that new Framework Decision or in any way rendered the new Framework Decision into their law.
13. It seems to me therefore that, unless and until Romania does take that step, then, any potential extraditee to Romania in the position of Mr Bohm (namely where the first question, was he tried in his absence, is answered "yes" and the second question, was he deliberately absent from that trial, is answered "no") will necessarily not be extraditable. Unless and until Romania takes that step, then cases similar to those of Mr Bohm are likely to end, indeed should end, in a decision against extradition, because the third question cannot be answered in the way which it needs to be for extradition to be successful.
14. For these reasons, this appeal succeeds. I am grateful to all counsel for their help.
15. MR GARLICK: My Lord, may we ask for -- I am a probably a little out of date in nomenclature -- but legal aid taxation of defence costs. We are legally aided and the Legal Services Commission requires for us to make an application that those costs be paid out of central funds. We do not make an application, of course, against the Crown Prosecution Service but out of central funds, merely to protect the Legal Services Commission's budget.
16. MR JUSTICE IRWIN: Your application is granted. I am grateful.