B e f o r e :
MR JUSTICE HEATHER WILLIAMS DBE
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BOGDAN OVIDIU CRISTIAN DIMIN
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Appellant
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- and -
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ALBA IULIA COURT OF LAW, ROMANIA
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Respondent
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MR M CLEJ (instructed by AM international Solicitors) appeared on behalf of the Appellant
MS L BRIESKOVA (instructed by the CPS Extradition Unit) appeared on behalf of the Respondent
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HTML VERSION OF JUDGMENT
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- MRS JUSTICE HEATHER WILLIAMS: This is an appeal against the judgment of District Judge Sternberg who ordered the appellant's extradition to Romania on 17 October 2022, in respect of a conviction warrant relating to a sentence of 16 months imprisonment, all of which remains to be served.
- Permission to appeal was given by Andrew Baker J on 10 March 2023. Today was the substantive hearing of the appeal. The grounds of the appeal are section 20 of the Extradition Act 2003 ("EA 2003") and Article 8 of the European Convention on Human Rights.
- The Article 8 grounds raises eight respects in which it is said that the District Judge's decision on that issue was wrong. The seventh of those eight points is based on part of a report by Professor Norel Neagu who, it is accepted, is an appropriate expert in Romanian law for these purposes. His report also covers and, indeed, is largely focussed, upon the section 20 issues, which I do not need to refer to for present purposes.
- Amongst other issues, the professor was asked to give his opinion on whether the requested person was entitled to early release, and he said this at page 18 of his report,
"According to Romanian law, early release can be given to any convicted person. Deprivation of liberty without a possibility of early release is not possible or legal in Romanian law. The conditions of early release focus on the convicted person's behaviour in prison, and not on his behaviour prior to his arrest.
The conditions for early release are: serving a percentage of the sentence, having good behaviour (thus being in an open or semi-open regime), fulfilling civil obligations from the sentence and being reformed and able to be reintegrated in society (which usually results from the facultative advice of the prison board when proposing the early release to the court).
In conclusion, RP is entitled to early release according to Romanian law."
5. In circumstances that I will come back to shortly, Professor Neagu gave oral evidence today via a CVP link from his home in Romania. When he was asked about this aspect of the case, he said the following - and this is just a short summary. For a 16 months sentence of imprisonment, the prospect of early release applies at the two-thirds stage of the sentence, unless the convicted person has done work in custody, in which case it may apply at the halfway point. If extradited, it was very likely that Mr Dimin would be in an open or semi-open regime. Fulfilling the civil obligations for the sentence meant that he (Mr Dimin) would have to repay the money he stole. As far as I am aware, that is not something which has been done up to this point. Professor Neagu accepted that the questions of being able to reform and being able to reintegrate into society would be discretionary ones for the Romanian court. Indeed, as the text of his report says, this would generally be based on the advice of the Prison Board. Professor Neagu was also asked about the significance, if any, of Mr Dimin's fugitive status (that being the finding of the District Judge), to which he said that the approach of the Romanian courts was variable; some judges would take this into consideration, and others would not necessarily do so.
- Unlike a number of other cases where early release issues have been raised as part of the grounds of appeal, the appellant did not seek a stay in the light of the Supreme Court's consideration of the significance of the prospect of early release in Andrysiewicz v Circuit Court in Lodz, Poland [2024] EWHC 1399 (Admin), which is being heard by the Supreme Court this month.
- When I raised the point with Mr Clej during the course of his oral submissions this morning, he positively said that a stay was not sought in this case. Indeed, he went further, volunteering that for present purposes, he was content to rely upon Swift J's approach in Andrysiewicz, namely that the prospect of early release will add little weight to a submission that extradition would be a disproportionate interference with Article 8 rights.
- This morning's hearing ran from approximately 10.40 am to 1.10 pm. It started slightly late because of issues with the CVP link. After initial housekeeping matters, Professor Neagu gave evidence for over an hour, and then I heard oral submissions from both counsel. I continued beyond 1.00 pm, because both counsel told me they were almost at the end of submissions, and that they would conclude in a few more minutes.
- After Mr Clej had made short reply submissions on the section 20 issue, he indicated he had nothing to add to his earlier submissions in relation to the Article 8 issue. As far as I was concerned, he was about to sit down, and I was about to indicate that I would reserve judgment. However, to my surprise, he then indicated at that very late stage that he was making an application that the court should stay these proceedings until after hand down of the Supreme Court's judgment in Andrysiewicz. I expressed surprise to Mr Clej, describing his submission as one that was made at the 11th hour, 59th minute and 59th second. No explanation, let alone an adequate explanation, was given by Mr Clej as to why this application was not made earlier, if these were appropriate circumstances for granting a stay. Nor, indeed, did he explain why he had advanced the specifically contrary view during the course of his submissions earlier that same morning.
- Ms Brieskova for the respondent objected to the application for a stay. The questions for me, as identified by Hill J in the case of Marcisz v the Regional Court in Bielsko - Biala Republic of Poland [2024] EWHC 2441 (Admin), were identified by reference to the judgment of Irwin J, as he then was, in Czach v Poland [2016] EWHC 1993 (Admin). At paragraph 24, Irwin J distilled the following test for the granting of a stay from the authorities that he reviewed,
"24. Every case must be dealt with as expeditiously as possible and a case should only be stayed pending an appeal in another case if it is clear that the pending appeal is likely to be decisive or determinative in the instant case. A rigorous approach must be taken to the grant of a stay in this context."
- As Hill J said at paragraph 13, Irwin J in that case then went on to give a practical guidance, which included the following at paragraph 27,
"27. The question of a stay should then be considered by a judge alongside the application for permission. The question is whether the outcome of any appeal…is likely to be decisive…If such a different outcome is likely to be decisive or determinative in a given case, then it may be appropriate to conclude the interests of justice require a stay. If not, not."
- Accordingly, I need to consider whether the pending appeal before the Supreme Court is likely to be decisive or determinative of the Article 8 issue in this case. If I conclude that it is, in any event, I then need to consider whether it would be in the interest of justice to grant a stay.
- I do not consider that the outcome of Andrysiewicz in the Supreme Court is likely to prove decisive in the present case, for the following reasons -
1. As I have alluded to, the early release point is just one of eight points that are raised in relation to Article 8, and it is not a point that was given particular prominence in either the written or the oral arguments.
2. It was not though sufficiently significant to raise the question of a stay at all until this very, very late stage in the day.
3. I am concerned with the Romanian and not the Polish early release provisions.
4. As is shown by Professor Neagu's evidence, the decision as to whether or not to grant early release is a discretionary one. For the reasons I have already summarised in respect of his evidence, there are a number of "ifs", "buts" and imponderables at this stage as to whether early release would be granted. Each of them would need to pan out in the appellant's favour for early release to be granted to him.
- Accordingly, this is a case where on the available facts and evidence, the court cannot form a clear view as to the prospects of early release. Whatever weight the Supreme Court decides may be attached to the prospect of early release in an appropriate case, it will remain the position that in any event the court cannot form a clear view of the prospects in this case.
- Accordingly, I refuse the application for a stay.
- For completeness, I indicate that there are also compelling reasons why it would not be in the interest of justice to grant a stay.
- The case is relatively old. Much of the delay in the appeal being heard was taken up with the appellant's legal teams' understanding that the consent of the Romanian authorities was required for Professor Neagu to give evidence from Romania via CVP. It was only earlier this month that the appellant's legal team changed their position and indicated, with supporting material, that that was not, in fact, necessary.
- Another reason why this matter has taken a long time to be heard and, indeed, was one of the reasons why I adjourned this matter in July 2024, was to give the appellant's lawyers an opportunity to, as it were, get their tackle in order. Although reliance was placed in the skeleton argument for the hearing upon points arising from Professor Neagu's report, at that stage no application had been made to amend the grounds of appeal and no draft amended grounds of appeal had been provided; and no application had been made to rely on the contents of Professor Neagu's report as fresh evidence. It was also suggested on behalf of the appellant that further time was needed to ask Professor Neagu to respond to further information provided by the Judicial Authority in July 2024. However, in the event, nothing further was provided from Professor Neagu in relation to such matters.
- As is well-known, and as Irwin J stressed in the passage in Czach v Poland cited by Hill J in Marcisz, extradition cases are to be dealt with as expeditiously as possible. Regrettably, that has not been the approach of the appellant's legal team in this case.
- I have indicated to counsel that if it be the case that the Supreme Court hands down its judgment in Andrysiewicz before I am able to give my reserved judgment in this matter, then I will, of course, give the parties an opportunity to make written submissions on the Supreme Court's decision, if it appears material for them to do so. However, as I also indicated to counsel, what I am not prepared to do is at this very late stage in the proceedings is to grant an open-ended stay of the matter, with no knowledge as to how long it is likely to be before the Supreme Court hands down judgment. As I have explained, this is already an old case and it is one where I have heard the full appeal today. I have heard full submissions from counsel and I have heard Professor Neagu's oral evidence, which – whilst I have not had the chance to check the exact timings – lasted for at least an hour. The case is ready for determination.
- If a serious application was to be made for a stay, it should have been made, at the very latest, at the start of this hearing and really much earlier than that. Had I been aware at the start of the hearing that an application for a stay was made, I would, of course, have determined it before embarking upon hearing oral evidence, because, apart from anything else, it is important that the court makes a decision while matters such as the oral evidence remains relatively fresh in the mind.
- Lastly, as I have already indicated, I bear in mind that this application was made exceptionally late in the day, and with no good reason identified as to why it was not made earlier. Therefore, for all these additional reasons, as well as the point not being decisive in this case, I refuse the application for a stay.
