TRIBUNALUL PRAHOVA (ROMANIA) v SOVAIALA COURT (ROMANIA)
This was a case in which top extradition lawyer Ben Siefert argued that and EAW was an abuse of process. This argument was roundly rejected by the High Court. Here is the full transcript:
LORD JUSTICE BURNETT: The issue identified for resolution in the grounds of appeal of the Prahova Court, Romania, is whether the European Arrest Warrant ("EAW") in respect of which the respondent Dan Sovaiala was discharged by District Judge Purdy on 18 December 2015, failed to contain the particulars required by section 2 of the Extradition Act 2003 ("the 2003 Act").
In the course of argument it has become apparent that there is nothing technically wrong with the warrant when it is considered in isolation. Any difficulty arises as a result of what appears to be duplication or overlap with a second EAW in respect of which the District Judge also discharged the respondent, and confusion about the status of the first EAW, which flows from further information provided by top Judge Daniela Ivan Popa, the designated judge of the Prahova Court.
The extradition proceedings relating to both EAWs were heard together. The first EAW was issued by Prahova Court, Romania, on 21 July 2013 and was certified just over 2 years later, on 29 July 2015. The second EAW was issued by Sinaia Court on 27 January 2014, and was also certified on 29 July 2015.
There is no appeal in respect of the respondent's discharge in connection with the second EAW. Both EAWs were discharged by the District Judge because he concluded that each of them contained inadequate particulars for the purposes of section 2(6)(b) of the 2003 Act.
The first EAW is a conviction warrant which followed a domestic arrest warrant which had been issued in Romania on 3 July 2013. The respondent's surrender is sought to serve a sentence of 3 years' imprisonment. That sentence of imprisonment had been imposed on 18 May 2007, but was suspended for a period of 6 years.
The suspension was on terms that the respondent complies with a series of conditions. He did not comply with the conditions. The sentence of imprisonment had followed his conviction for 3 offences, namely participating in an organised crime group, putting counterfeit money into circulation and fraud. The respondent received a term of imprisonment in respect of each offence but the operative sentence under Romanian law was the longest of the three. In our terms, that is an example of sentences being imposed concurrently.
Full particulars of those offences are given in the EAW which is the subject matter of this appeal. In terms which are also familiar in this jurisdiction, what occurred was similar to the imposition of a suspended sentence which was later activated on account of the failure by the defendant to comply with the terms upon which it had been suspended. The activation of the underlying 3 year sentence became final on 3 July 2013.
The second EAW is also a conviction warrant. It concerns two offences which were committed on 15 December 2012, but in respect of which the respondent was not sentenced until a year later. The respondent had committed burglary of a dwelling house and aggravated theft. He received a sentence of 3 years' imprisonment for each but, once again, in effect the sentences were concurrent. Therefore, for his offending on 15 December 2012, the immediate custodial sentence was 3 years' imprisonment. This EAW also states that the court revoked the suspension of an earlier sentence of 3 years' imprisonment. The result was that the second EAW sought the surrender of the respondent to serve a total of 6 years' imprisonment.
Although the case numbers of the earlier convictions and sentence were identified in the second EAW, no particulars were given of the earlier conviction in respect of which the suspended sentences had been imposed. As it happens, because we have both EAWs, it is possible to discern from the case numbers that the Sinaia Court was, to put it again in our domestic terms, activating the earlier suspended sentence. The puzzle which immediately presented itself was that the Prahova Court had already activated the same sentence.
Section 2 of the 2003 Act, as material, provides:
"(1)This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2)A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains–
(a)the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b)the statement referred to in subsection (5) and the information referred to in subsection (6).
b. (5)The statement is one that–
c. (a)the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and
d. (b) the Part 1 warrant I issued with a view to his extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
e. (6)The information is–
f. (a)particulars of the person´s identity;
g. (b)particulars of the conviction;
h. (c)particulars of any other warrant issued in the category 1 territory for the person´s arrest in respect of the offence;
i. (d)particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
j. (e)particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
Before the District Judge, the respondent's top extradition lawyer ran the argument that both EAWs failed to comply with section 2(6)(b). It is not surprising that the judge concluded that the second EAW failed to provide the particulars of conviction in respect of which the activated 3 year sentence was added. Neither is it surprising that the judicial authority does not seek to appeal against that decision. This was precisely the type of circumstance dealt with by Davis J, as he then was, in Echimov v Court of Babadag, Romania  EWHC 864 (Admin). The District Judge dealt with both the first and second EAW in the same paragraph of his judgment. That paragraph contains rather condensed reasoning but the conclusion was that both fell foul of section 2 for lack of particularity.
Ms Farrant, on behalf of the appellant judicial authority submits that whatever may have been the position regarding the second EAW, the first EAW does not suffer from any deficiency by reference to section 2. She submits that the judge provides no separate reasoning for his conclusion that the first EAW was deficient. She draws attention to a confusion earlier in the judgment. In his description of the first EAW, the judge records the sentence for which the respondent is sought as being 6 years when, as I have indicated, it is 3. The point appears again when the judge indicates that the second EAW may be seeking the surrender of the respondent to serve a total of 9 years. With the greatest of respect to the District Judge, the second EAW is clear on its face that the sentence was for 6 years.
Looking at the judgment of the District Judge as whole, it is clear that his underlying concern, and the foundation of his conclusion, flowed from detailed further information provided by top Judge Popa in her letter dated 6 November 2015. That describes in detail the background to the first EAW and explains the circumstances in which the second came to be issued. The respondent's failure to comply with the terms of his suspended sentence and the circumstances in which the Probation Service went back to court and invited it to activate the suspended sentence are fully set out. The letter explains how the court acceded to that invitation and required the respondent to serve the full penalty for the 2007 offences, namely 3 years.
The first EAW was issued immediately thereafter. Judge Popa explains that a further sentence of 3 years' imprisonment was imposed in respect of the offences committed on 15 December 2012. It is what follows in the letter that has given rise to some confusion. Judge Popa explains that the court sentencing the respondent for the December 2012 offences revoked the earlier suspended sentence of 3 years' imprisonment and:
i. "These penalties were to be executed besides the penalty imposed hereunder and the defendant was to execute the total penalty of 6 years and 2 years' interdiction of the rights provided by Article 64 A, B and C of the criminal code."
I should note that the reference to "2 years' interdiction" is not something which is of any relevance for the purpose of this appeal.
The odd feature of this aspect of the letter from Judge Popa is it seems that the suspended sentence had already been activated by her court, the Prahova Court, in July 2013, and was again activated by the second court dealing with the December 2012 offences. That was the court of Sinaia, which issued the second EAW.
The letter concludes:
i. "Taking into consideration the situation mentioned above, we appreciate that the extradition of the condemned person could be ordered only based on EAW 2 [...] As this warrant also refers to the sentence of 3 years' imprisonment constituting the object of EAW 1 [...]."
It is a perennial problem in dealing with extradition cases that the translations of further information (and sometimes of the EAWs themselves) lack clarity. There is an obvious ambiguity in the letter from Judge Popa, at least as it appears before us in translation.
Holroyde J, when he granted permission for this appeal, expressed it succinctly in these terms:
i. "It would be helpful to know whether the Romanian original means 'can only permissibly be ordered ...'
ii. Or 'might be ordered just on the basis that EAW 2 ...'"
At the invitation of Holroyde J, the Romanian judicial authority has been asked for clarification on this point. I observe that Judge Popa is the relevant judge at the Prahova Court. It would be extremely odd if she were in one breath to seek the return of the respondent to serve a 3 year sentence pursuant to an EAW issued by her court, and in another conclude a very detailed 7 page letter, giving further explanation of how the sentence came to be activated by her court, with a statement that the respondent can only be surrendered on the second EAW issued by a different court.
Be that as it may, Judge Popa has provided further information in a letter dated 7 April 2016. In it, she says:
i. "The extradition of the convicted can be continued on the basis of EAW 1, this one being a valid warrant."
Before the judge, Ms Hinton, who then appeared for the respondent, described the further information which had been provided as "a complete mess". That is likely to be unfair, at least as regards the original Romanian text.
On behalf of the respondent this morning, Mr Seifert realistically accepts that this is not an Echimov(supra) case. In his written material, he submitted that the evidence suggests that the Romanian authorities will impose a total sentence of 6 years, even though the first EAW relates only to the 2007 offending and a 3 year sentence. Alternatively, on the strength of the further information that was before the judge, he submitted that there was reason to suppose that the first EAW was a nullity. In that written material, he referred to the decision of the Supreme Court in Zakrzewski v Regional Court in Lodz, Poland  1 WLR 324, and Lord Sumption's explanation at paragraph 13 of the limited circumstances in which an EAW can support an abuse of process argument and sought to bring this cases within the four corners of abuse. The submission then was that it was clear that the respondent's extradition was being sought under a warrant which no longer had any domestic legal support in Romania, such clarity being a necessary requirement.
I am bound to observe that the position was never crystal clear in the way that was suggested by Mr Seifert in his written material. There was, as has been recognised, some ambiguity.
In my judgment, however, that argument (however one couches it) is no longer open to the respondent in view of the statement made by Judge Popa in her recent letter. I am bound to say that I would have been inclined to resolve the ambiguity in the translation of the earlier information in favour of the requesting judicial authority, essentially for the reasons I have already given.
One should not forget that the EAW system is underpinned by trust and confidence in the judicial systems of the Member States of the European Union. In extradition cases, it is rarely appropriate to engage in an examination of the domestic laws of the requesting State. It is almost always sufficient to rely upon the statements and explanations of the judicial authorities of the country in question. Our courts need to be sensitive to the reality that the different legal traditions across Europe approach what appear to be common issues in a variety of ways. The way in which the various jurisdictions treat previous convictions and outstanding suspended sentences also varies. Another example of how the Romanian courts dealt with the circumstances of a different set of offending and a consecutive series of offences arose in Cretu v Local Court of Suceava, Romania  EWHC 353 (Admin) in particular, see paragraph 54.
The real concern of the respondent, as articulated on his behalf by Mr Seifert this morning, is that if surrendered pursuant to EAW 1 he may nonetheless be required to serve the additional sentence of 3 years for the later offending which was the subject matter of the second EAW alone. To my mind, that raises (at least potentially) questions of speciality, as to which see section 17 of the 2003 Act and Article 27 of the framework decision; but the issue of speciality has not been raised in this appeal and there is no reason to suppose that it could assist this respondent.
Mr Seifert approached the "ambiguity", as he called it, in the question of how long a sentence the Romanian authorities were likely to impose upon the respondent through the decision of the Supreme Court in Zakrzewski(supra). He developed a variation of the argument originally advanced to suggest that the first EAW was an abuse. He submits that it would have been better to have seen in the recent further information from Judge Popa a clear explanation of the amount of time for which the respondent was sought. He emphasised that to clear up the ambiguities or confusions which have arisen in this case, it would have been a straightforward matter for the Romanian authorities to withdraw both EAWs and issue another document, which was clear beyond doubt.
I hope I may be forgiven for not citing the detail of Lord Sumption's judgment in Zakrzewski. It is sufficient to observe that to succeed in an abuse argument, an appeal to suggested ambiguity in documents will not be sufficient. The information from Judge Popa has clarified that the respondent is wanted pursuant to EAW 1 to serve a sentence of 3 year's imprisonment. It is clear that the first EAW provides the particulars required by section 2(6)(b) of the 2003 Act. In in those circumstances I would allow the appeal. If my Lord agrees, I would make the following order in accordance with section 29 of the 2003 Act:
1) Quash the order discharging the respondent.
2) Remit the case to the District Judge.
3) Direct the District Judge to proceed as he would have been required to do if he had decided that the EAW complied with section 2 of the 2003 Act.
The papers before us indicate that the respondent has been on conditional bail. I would hear short submissions from counsel on the question of bail before deciding that issue.
MR JUSTICE MITTING: I agree that for the reasons that my Lord has given this appeal should be allowed.
LORD JUSTICE BURNETT: Yes, Ms Farrant.
MS FARRANT: I have no opposition to conditional bail continuing on the same terms as before. I do not have the detail of those terms, though.
LORD JUSTICE BURNETT: I do not suppose Mr Seifert has, either.
MR SEIFERT: My Lord, I can take instructions. Mr Sovaiala sits behind me.
LORD JUSTICE BURNETT: There will be a fourth part to the order. I just need to remind myself of section 29, give me a moment. It is that we will remand the respondent on bail subject to the same conditions as have been in place hitherto, pursuant to the order of the Westminster Magistrates' Court.
MR SEIFERT: Yes.
LORD JUSTICE BURNETT: Are there any other ancillary matters of any sort that we need to deal with?
MS FARRANT: No.
LORD JUSTICE BURNETT: Well, thank you both very much indeed for your assistance
Interesting to note that even top extradition lawyers do not always succeed at the High Court.