News 20th Dec 2017

Romanian Extradition: Stasis Maintained

Gavin Irwin’s client was discharged by the Administrative Court as a result of the refusal of the Romanian authorities to guarantee the conditions of his detention in the event of his extradition. The fallout after the judgment in Grecu v Romania [2017] EWHC 1427 (Admin) continues.

The extradition proceedings involved two EAWs for convictions for Europe-wide, banking frauds executed by a Romanian Organised Crime Group.

The defence raised novel issues at first instance, including the fact that the Romanian Constitutional Court has recently given judgment in a case that affects a great number of convictions secured on evidence of intercepted communications. Unlike the courts in the United Kingdom, the Romanian courts permit the use of domestically intercepted communications – such material may lawfully be obtained and deployed by the police.

However, records of telephone intercepts cannot lawfully be obtained by the Romanian Intelligence Services and then passed on to the police for deployment in evidence. The role of Intelligence Services is restricted to intelligence gathering – relevant to national security issues – and their capabilities should not be harnessed, nor the fruits of their labours used, in the domestic criminal process without clear procedures involving at least an element of judicial authorisation or supervision. By 2016, the police had become heavily reliant on the RIS in that regard, despite there being no regulatory scheme nor any judicial oversight.

At first instance, the defence argued that Articles 5 and 6 of the Convention were engaged and that extradition should be refused on the basis that the requested person’s convictions had been unlawfully obtained (and in any event, in the absence of the unlawfully obtained evidence, there was no case for him to answer) but that there was no guarantee of a retrial or indeed any mechanism for review of his case in light of the decision of the Romanian Constitutional Court.

Ultimately, the Administrative Court did not come to consider that issue since the extradition appeal was determined by consent following the Romanian authority’s refusal to guarantee a minimum 3m2 of space to any detainee in semi-open prison conditions.

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