Romania sought Gabriel Popoviciu’s surrender to serve a sentence imposed after conviction. He alleged that his trial had been flagrantly unfair. The Supreme Court distinguished proof of something that had already happened from a prediction of what might happen on return. By the time it delivered its reasons, Romania had withdrawn the warrant.
The conviction and the extradition proceedings
Romania sought Mr Gabriel Popoviciu’s surrender under a European arrest warrant issued on 3 August 2017, so that he could serve a sentence imposed after conviction. He was one of 11 accused tried in the Bucharest Court of Appeal by Judge Tudoran. The allegations included an unlawful transfer of land known as Baneasa Farm and bribery. Becali Gheorge, a complainant, was an important prosecution witness. In 2016 Judge Tudoran convicted the accused and sentenced Mr Popoviciu to nine years’ imprisonment. Romania’s High Court of Cassation and Justice upheld the conviction and reduced the sentence to seven years.
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A district judge ordered extradition in 2019. On appeal the High Court admitted fresh evidence concerning alleged undisclosed relationships involving the trial judge. It regarded the allegations as credible but did not find them proved on the balance of probabilities. The central question was whether the possibility identified by the High Court was enough to refuse extradition.
The High Court thought it sufficient that there were substantial grounds for believing there was a real risk of a flagrant denial of justice. It quashed the extradition order but certified a question about which standard of proof applied to a trial already concluded.
The standard of proof
Lord Lloyd-Jones, with whom Lord Hodge, Lord Kitchin, Lord Hamblen and Lord Stephens agreed, held that the High Court had misdirected itself. Whether something has already happened is decided on the balance of probabilities. If it is not proved, it is treated as not having happened. A prediction about the future is different, and even a chance of less than half may be relevant.
An extraditing state may be responsible under the European Convention on Human Rights where surrender would directly expose a person to prohibited treatment abroad. For the rights to liberty and a fair trial, that responsibility arises only in the exceptional case of a flagrant denial of justice: a breach so fundamental that it destroys the essence of the right, not an ordinary irregularity. Where extradition is sought so that someone can be tried, the court looks forward and asks about real risk. This was a conviction case, so the complaint was that a flagrant denial had already occurred. That had to be proved. The Court agreed with that approach in Lezon and Kaderli.
There is an established exception where evidence may have been obtained by torture. In Othman, a real risk was enough because torture is uniquely grave, is practised in secret and is especially difficult to prove, and because its admission is itself a flagrant denial of justice. Lord Lloyd-Jones refused to extend the exception to allegations of judicial corruption or bias. Othman distinguished torture evidence from defects in the trial process or in the composition of the court. A standard that varied with the gravity of every allegation had no basis in authority and would be unworkable. The High Court’s approach had also been influenced by the Irish decision in Rostas, which had misread Othman.
Mr Popoviciu therefore had to prove that the allegations of bias and corruption were true. The finding that they might well be true did not meet that standard.
The response, further evidence and a possible remedy
The prosecutors’ brief response did not fill the gap. It was not an admission. Holroyde LJ had considered it and drawn only weak inferences. He was entitled to conclude that the allegations remained unproved, and the Supreme Court would not have interfered with that evaluation.
The Supreme Court also considered further statements offered on appeal. The witnesses had been known to the respondent’s representatives in time to obtain evidence earlier. The additional material was of limited significance alongside the evidence already heard. The Court would neither have admitted it nor remitted the corruption allegations for reconsideration.
A separate issue looked forward rather than back. The statement that a friendly relationship would not justify review made it arguable that, if returned, Mr Popoviciu might have no effective means of challenging the lawfulness of his detention because of the alleged unfairness of the trial. The parties agreed that this question turned on real risk. The Romanian authority accepted that article 5(4) requires a mechanism capable of examining new issues about the lawfulness of detention after conviction. Conflicting expert evidence about Romanian review procedures and the Constitution could not be resolved without cross-examination. Neither an application to the Strasbourg court nor the limited review in the English warrant proceedings would relieve Romania of its own obligation. Had the warrant remained in force, the Court would have remitted only this issue.
Why judgment was given after withdrawal
On 13 July 2023 the Court was told that the warrant had been withdrawn. An order of 24 July 2023 therefore dismissed the appeal under section 43(4) of the Extradition Act 2003. The Court nevertheless delivered judgment on 8 November 2023 so that the certified question and the associated issues would not go unanswered.
Verdict: The warrant was withdrawn and the appeal was dismissed in July 2023. In its November reasons the Supreme Court held that the High Court had used the wrong standard for the complaint about the completed trial. Had the warrant remained in force, the only issue it would have remitted was the availability of an effective procedure to challenge detention in Romania.
Source: Popoviciu v Curtea De Apel Bucharest (Romania) [2023] UKSC 39
