Supreme Court rules that extradition is precluded where a requesting state offers no effective means for challenging a trial that may well have been flagrantly unfair: Edward Fitzgerald KC, Peter Caldwell and Graeme Hall appear for the requested person
In 2021, the High Court discharged Mr Popoviciu from a Romanian extradition request because the evidence demonstrated that there were substantial grounds for believing that Mr Popoviciu’s trial judge in Romania had an “improper, corrupt and criminal” relationship with the complainant and chief prosecution witness. In turn, the High Court found that there was a real risk that Mr Popoviciu had “suffered an extreme example of a lack of judicial impartiality”, contrary to Article 6 ECHR. Mr Popoviciu had to be discharged as to return a person to serve a sentence based on a trial that “may well have been” flagrantly unfair exposed him to a real risk of flagrantly arbitrary detention, contrary to Article 5 ECHR.
On 8 November 2023, the Supreme Court ruled that it was not enough for Mr Popoviciu to demonstrate that his trial and conviction “may well have been” based on a flagrant denial of justice. Rather, he needed to demonstrate – on the balance of probabilities – that the trial was flagrantly unfair in order to make good the proposition that extradition exposed him to real risk of flagrantly arbitrary detention.
Importantly, the Supreme Court further held that because there is evidence that Mr Popoviciu’s Romanian trial may well have been flagrantly unfair, Article 5 ECHR demands that he is entitled to an “effective means of challenging the legality of his detention” in Romania. The Supreme Court would have remitted the case to the High Court “with a direction that it consider the availability to [Mr Popoviciu], if returned to Romania, of an effective legal procedure which would enable him to make his case concerning the fairness of the Romanian proceedings and the legality of his detention”.
However, as the Romanian authorities had withdrawn the extradition request following the appeal hearing, Romania’s appeal was dismissed.
The Supreme Court’s judgment can be found here.