CASE SUMMARY: Popoviciu v Romania [2021] EWHC 1584 (Admin)

Background Facts

The appellant (‘P’) appealed against an order for his extradition to Romania to serve a sentence of 7 years’ imprisonment for two offences: accessory to aggravated abuse of power and bribery. The convictions stemmed from an alleged conspiracy to transfer a plot of land under State ownership to a private company. P appealed against the order on several grounds, including that his extradition would be in violation of his rights under Articles 5 and 6 of the European Convention on Human Rights (‘ECHR’) in that his conviction and prospective imprisonment amounted to a flagrant denial of justice. Before the District Judge, P had placed emphasis on systemic problems in the Romanian criminal justice system, in particular, that it was beset by corruption, political interference and a lack of judicial independence. On appeal, P’s emphasis shifted to specific allegations that the judge at his trial was generally corrupt and had an improper and undisclosed relationship with Gheorge Becali, a high-profile Romanian businessman and the primary witness against P in the case. In support of the assertion that he had suffered and would suffer a flagrant denial of justice, P sought to rely on fresh evidence in the form of statements from three witnesses attesting to the engagement of the trial judge in unjudicial conduct, namely illegal gambling and the solicitation of bribes, and the existence of a longstanding relationship between the trial judge and Mr Becali.

Court’s decision and reasoning

Allowing the appeal and ordering P’s discharge pursuant to section 27(4) of the Extradition Act 2003, the Divisional Court considered the test of whether a requested person has suffered or would suffer a “flagrant denial of justice” (Othman v UK (2012) 55 EHRR). In the context of a fair trial, it is synonymous with a trial that was manifestly contrary to the provisions of Article 6 or the safeguards embodied therein. In the case of a conviction European Arrest Warrant (‘EAW’), there may be a flagrant breach of Article 5 where the requested person would face a risk of imprisonment for a substantial period of time in the requesting state having previously been convicted after a flagrantly unfair trial (Elamshawy v Italy [2015] EWHC 28 (Admin)). It follows that the threshold for a flagrant breach is a high one and, in meeting that high threshold, the court held that there was no reason in principle why a number of features, individually amounting to a lesser breach of Article 6, could not when taken collectively, be found to amount to a flagrant breach amounting to a nullification of the essence of a fair trial.

The court went on to consider the correct measure of the risk of exposure to a flagrant breach of Article 5 in the case of a conviction EAW. In the context of an accusation EAW, the court is concerned with the assessment of the future treatment of the requested person by the requesting state, and the correct test in such a case is whether there are substantial grounds for believing that, if returned, the requested person would be exposed to a real risk of being subjected to a flagrant denial of justice. Conversely, in the instant case, the argument was that P had already suffered a flagrant denial of his Article 6 rights at trial and that any subsequent period of imprisonment based upon his convictions would be a flagrant breach of his Article 5 rights. The respondent argued that in such circumstances it is necessary for the requested person to prove on the balance of probabilities that his or her trial did in fact involve a flagrant breach of Article 6. Rejecting this submission, the court acknowledged the distinction between past history and an assessment of future risk but held that the correct test in conviction EAW cases remained whether there are substantial grounds for believing that there was a real risk that the requested person’s trial had been flagrantly unfair. It would be wrong in principle to place a requested person who claimed to have suffered flagrant unfairness at trial at a disadvantage when compared with one who feared such treatment in future.

Application to P’s case

In P’s case, the fresh evidence in relation to the trial judge took the court far away from the evidential position before the District Judge. In determining whether allegations of a lack of judicial impartiality amount to a flagrant denial of justice, each case will require a fact-specific analysis. In the instant case, the court was satisfied that the three witnesses provided credible evidence of at least some of the allegations that the trial judge, in particular, had a relationship with Mr Becali, in the course of which he had provided improper and corrupt assistance to him with legal matters; that he had participated in illegal gambling; and that he had received and solicited bribes. The evidence established substantial grounds for believing that P had been convicted by a judge who could not be impartial and P thereby suffered a complete denial of his Article 6 rights at trial. There were therefore substantial grounds for believing that, if returned, P would suffer a flagrant breach of his Article 5 rights because his imprisonment would be arbitrary.

Comment

The court rightly described this case as extraordinary. Quite apart from finding the staggering allegations of judicial corruption to be credible, this is the first time that the High Court has concluded that extradition to an EU member state should be refused on the grounds it represents a real risk of a flagrant denial of the requested person’s rights under Articles 5 and 6.

The decision is welcome for its detailed consideration of what will amount to a flagrant breach of a Convention right and, in particular, for its clarification of the test to be applied when assessing the risk of exposure to a flagrant breach of Article 5 in cases involving conviction warrants. The need for this clarification is underscored by the post-script to the judgment in which it was revealed that upon the distribution of drafts of the judgment to counsel, the court’s attention was drawn to the recent High Court decision in Kaderli v Chief Public Prosecutor’s Office of Gebeze, Turkey [2021] EWHC 1096 (Admin). In that case, Chamberlain J concluded that a requested person sought pursuant to a conviction warrant who claims that extradition would be contrary to Article 5 because of a flagrant breach of Article 6 standards at the trial which led to their conviction must establish that the trial was flagrantly unfair, not merely a real risk that it was. Having reviewed the judgment and the reasoning therein, the court in the instant case confirmed that it respectfully disagreed with the learned judge’s conclusion.

Two further points of note for practitioners arise from this judgment in relation to Article 3. P argued that the recent decision of the European Court of Human Rights (‘ECtHR’) in Bivolaru and Moldovan v France (applications 40324/16 and 12623/17) marked a departure in approach to the assessment of prison conditions from that laid down by the Court of Justice of the European Union (‘CJEU’) in ML [2019] 1 WLR 1052. In ML the CJEU held that in extradition proceedings, an executing judicial authority need only assess the conditions of detention in the prisons in which it is intended that the requested person will be detained. The court adopted as correct the following summary of Moldovan: “[it] confirmed the existence of a real risk of treatment contrary to Article 3 in Romanian prisons and cautioned against exclusive reliance on generic assurances by the Romanian authorities to address those risks.” However, dismissing this ground of appeal, the court held that there was a clear distinction between the facts of the instant case and those in Moldovan and it was, therefore, unnecessary to consider whether the approach in Moldovan should prevail over the decisions of the Grand Chamber of the CJEU. Practitioners will await with interest the resolution of that issue. In the meantime, the court offered some useful guidance on the concept of “generic assurances”. Whether an assurance is generic or stereotypical is a matter of substance, not form, and given the limited number of ways in which to express an assurance that a prisoner will be guaranteed at least the minimum space required by law, the use of a form of words previously used in another assurance should not be viewed as automatically indicative of those words being stereotypical or generic.