Extradition Appeal Allowed on Article 5 Grounds

On 26 February 2025, Mr Justice Dove allowed an appeal against an order for extradition to Romania on the grounds that extradition would be incompatible with the Appellant’s rights under Article 5 of the Convention.

In Romania the Appellant had argued before the High Court of Cassation and Justice (HCCJ) that his convictions for money laundering and participating in an organised criminal group were barred on limitation grounds and should be annulled.  The HCCJ held that although his appeal had merit, the Court did not have jurisdiction to annul the convictions and so referred the question of the Court’s own jurisdiction to the Constitutional Court of Romania.

In the extradition proceedings it was argued that it would be a breach of Article 5 of the European Convention on Human Rights, (which prohibits arbitrary detention), to extradite the Appellant to Romania to serve a prison sentence for a conviction that ought to be annulled, but where there was no effective means of doing so.

Mr Justice Dove approved a three-stage test proposed counsel for the Appellant:

Firstly, had a new issue arisen in the Appellant’s case and, if so, when did it arise? 

Secondly, if there was a new issue bearing upon the legality of him serving his sentence in Romania, was there a remedy by which it is possible for the Appellant to test the new issue which has arisen? 

Thirdly, was any remedy which might be identified an effective remedy for the purpose of Article 5(4)?

The High Court found that the decisions of the Courts in Romania did raise a new issue as to the legality of the Appellant’s detention, which had arisen after the domestic appeal.  Dove J concluded that the reference to the Constitutional Court, in particular having regard to the time that process was likely to take, could not be an effective remedy, and allowed the appeal. 

The decision applied the grounds of challenge identified in Popoviciu and confirms Article 5 to be a viable basis for challenging extradition in conviction cases.

The judgment is available here

Peter Caldwell represented the Appellant, instructed by Elena Jacobs at Coomber Rich Ltd