Chen v The Government of Romania

1. MR JUSTICE MITTING: On 6th April 1995, the appellant, a native of Guangdong, China, was convicted in his absence of the murder of Yu Xing Yu and the wounding of Zhai Jing Sheng on the night of 25th and 26th January 1992 in Bucharest by the Bucharest District Court. He was sentenced to 20 years' imprisonment and ordered to be deported on his release. His conviction and sentence became final (there being no appeal against either) on 6th September 1995.

2. A warrant for his arrest had been issued on 30th January 1992 but never executed. Precisely when and in what circumstances the appellant came to be in and to leave Romania are obscure. He says in his draft witness statement, made for the purpose of these proceedings, that he spent three short periods in Bucharest: two to three days, on arrival from the Peoples' Republic of China in 1989 (after which he went to live in Budapest, Hungary); two weeks in 1991 (to get a Romanian visa); and two to three days (to attempt, unsuccessfully, to collect his belongings, which he had left behind on his second visit) one month later. He denies committing the offences and denies all knowledge of the criminal proceedings in Bucharest until his arrest in Liverpool on a provisional warrant on 15th March 2005. He had come to the United Kingdom in 1999 and claimed asylum, unsuccessfully, as a member of the Fa Lung Gong. Meanwhile, he had married his girlfriend and she had given birth to his daughter in 2002.

3. On 18th March 2005, the Republic of Romania requested the extradition of the appellant to Romania. The request was certified by the Secretary of State on 24th April 2005. On 3rd December 2005, after a hearing at Bow Street Magistrates' Court, District Judge Wickham sent the case to the Secretary of State for his decision on whether the appellant should be extradited. On 31st January 2006 the Secretary of State ordered his extradition to Romania.

4. It is common ground that the appellant was convicted in his absence. Following upon the decision of this court in The Government of the Republic of Albania v Bleta [2005] EWHC 475 Admin, the Government of Romania conceded that he had not deliberately absented himself from his trial because there was no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial: see paragraph 48 of Bleta .

5. The appellant submitted to the District Judge that she should order his discharge on one or both of two grounds:

(1) His extradition was barred under section 79(1)(c) Extradition Act 2003 by the passage of time;

(2) Having been convicted in his absence without having deliberately absented himself from his trial, he would not be entitled to a retrial or, on appeal, to a review amounting to a retrial under section 85(5), which gave him the right to specify in section 85(8). The District Judge rejected those submissions.

6. The relevant statutory provisions are:

section 79(1)(c):

"(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 2 territory is barred by reason of...

(c) the passage of time..."

section 82:

"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

and section 85:

"(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 86.

(7) If the judge decides that question in the negative he must order the person's discharge.

(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights-

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had no sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

The wording of section 85(8) is identical to Article 6(3)(c) and (d) of the European Convention on Human Rights.

Section 85(5) and (8)

7. The District Judge's conclusion was, as to legal representation:

"I am satisfied that the right to legal representation S.85(8) is preserved. The defendant will have compulsory juridical assistance by virtue of the gravity of the accusations."

As to what she regarded as a more important issue under section 85(8)(a) to (b):

"Mr Baker argues that Article 405 para 2 of the Romanian Criminal Procedure Code gives a discretion to the Judge on a retrial to re-administer all the evidence administered during the first trial only 'if it finds it necessary' and that the fact of that discretion, whether it is actually exercised by the retrial Judge or not, breaches Article 6. The letter of Mr Radu (dated 11th October 2005) makes it clear that by Article 405 para 1 the procedure for the retrial will be governed by the rules settled for the trial in the first court of the accused (and I accept from the documents in the extradition request bundle that witnesses were interrogated); he further states that Dr Draghici's opinion on Article 405 is taken out of context and that Article 320 allows for the admissibility of fresh evidence and calling of witnesses at the defence request."

"I do not wish to give a judgment based on some contest between Mr Radu and Dr Draghici, least of all when neither of these parties have themselves given evidence or been cross-examined and many nuances of interpretation may be lost in translation. I am of the opinion that the reference to 'if he finds it necessary' is no more than a reference to the discretion given to any Judge to administer his or her court and manage his or her caseload as befits each individual case and that the defendant's right remains preserved."

8. Section 85(5) requires the judge to decide whether a convicted person who has not deliberately absented himself from his trial would be entitled to a retrial et cetera in which he would have the rights specified in section 85(8). "Entitled" as a matter or ordinary language must mean "has the right under law". It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion. Free of authority, I would hold it is neither necessary nor right to examine what a requesting state does in practice. Its law will either provide clearly for the relevant entitlement or it will not.

9. The law of Romania is clear. As was accepted by Dr Mariana Mihai, an expert in Romanian law called by the appellant, and as stated by her colleague Alice Draghici in answer to question 5 in her written report dated 26th July 2005, Article 20 of the Romanian Constitution provides unequivocally that all treaties and conventions signed by Romania become part of the internal law of Romania which it is mandatory for Romanian courts to apply. Further, in the event of disagreement between a convention such as the European Convention on Human Rights and the Romanian Criminal Code, the convention prevails. Romania ratified the Convention on 20th June 1994. Accordingly, the terms of Article 6 are not only incorporated into Romanian law, but also prevail over any contrary provision of its Criminal Code or practice.

10. The requirements of Article 6 in a case in which a person has been tried in his absence are clear: he must be afforded a retrial, to which the requirements of Article 6 apply, unless he can be shown to have sought to escape trial or to have unequivocally waived his right to appear in court: see most recently Sejdovic v Italy , 1st March 2006, paragraph 105.

11. As Dr Mihai explained, Article 522 of the Criminal Code was passed into law to give effect to Article 6 in the case of extradited persons tried in their absence. It provides:

"(1) If the extradition of a person tried and condemned while absent is requested, the case may be retried by the court which solved the case in first instance, at the request of the condemned."

(2) The provisions of articles 405-408 apply accordingly."

12. In his submissions to us, Mr Fitzgerald QC demonstrated that the word "may" in Article 522(1) should probably be read as meaning "will be able to be".

13. In answer to question 7 of her written report of 24th May 2006, Dr Mihai said, unequivocally, that Article 522 entitled the returned fugitive to a retrial. In evidence, she resiled from that statement, citing four cases in which the High Court of Cassation and Justice in Bucharest treated Article 522 as conferring a discretion, not a right. Close examination of the facts of the cases shows that they are somewhat removed from those of this case.

14. Dr Mihai drew attention to Article 405 of the Romanian Criminal Code which provides:

"(1) Retrial of the case after provisional admission of an application for review ... shall be made according to the rules of procedure applicable for the trial in first instance.

(2) The court, if the court finds necessary, administers again the evidence which was administered during the first trial or during the procedures for provisional admission of the application for review."

She stated that it was highly unlikely that a reviewing court would conduct a retrial or rehearing which gave the appellant the rights guaranteed to him under Article 6. She also made criticism of the adequacy of state funded lawyers who would provide free legal assistance if the appellant did not obtain his own.

15. Mr Fitzgerald for the appellant contended that the questions which the judge is required to answer under section 85(5) and (8) should be answered not by reference to what Romanian law (Article 20 of the Constitution) guarantees, but by reference to what it achieves in practice. On the basis of Dr Mihai's evidence, he submits that the practice of Romanian courts falls significantly short of meeting the requirements of section 85(5) and (8). The relies upon part of the decision of this court in Bleta to support his proposition.

16. Bleta was convicted in his absence of the murder of a man in Albania. He fled the country but there was no evidence that he knew of, or had deliberately absented himself from, his trial. Before the District Judge, the Government of Albania conceded, and the judge found, that Bleta would not be entitled to a retrial or a review amounting to a retrial because the time limits for appeal had expired: see paragraph 12.

17. On appeal to the Divisional Court, the Republic of Albania contended, for the first time, that Article 147 provided for a right of appeal out of time to all parties to criminal proceedings "as long as they prove that they were not capable of observing the time period because of the accident or major forces": see paragraph 13. It also stated that the European Convention on Human Rights had become "part of the domestic legal system and are applied directly".

18. For the respondent, it was submitted that there was a lack of clarity and certainty about Albania's constitutional provisions and that the effect of Article 147 was far from clear: see paragraphs 23 and 24.

19. On the basis of that, self-evidently imperfect material, the court concluded in paragraph 26:

"However, having made all allowances I properly can, I am unable to conclude that, upon examination of the Albanian provisions and the explanations given for them, I am satisfied that the Respondent would be entitled to the required re-trial or (on appeal) review amounting to a re-trial in Albania. I do not doubt the good faith in which the 'guarantee' was given but I see considerable force in the submissions of Mr Pearse Wheatley. There are in my judgment too many open ends and insufficient clarity to be able to conclude that the information supplied belatedly and by instalments, following the concession before the judge, provides a sufficient assurance that the Respondent would receive in Albania the re-trial, or review amounting to re-trial, which the 2003 Act requires if extradition is to be ordered. I do not find signatures of the European Convention on Human Rights , or the UN Covenants, in themselves amount to sufficient assurance in the circumstances."

20. The position in this case is different. There is no ambiguity about the Romanian constitution: it not only incorporates Article 6 but provides that it shall not prevail over any provision of the Criminal Code. Nothing in Bleta precludes the conclusion that, in a clear case such as this, the court should look first and last at the law of the requesting state. I would hold that it is wrong to do otherwise.

21. Accordingly, albeit for different reasons, I would uphold the decision of the District Judge on this issue.

22. I have not overlooked Peci v Switzerland , a decision of this court on 5th November 1999, in which a combination of three factors was held to satisfy the "interest of justice" test in section 6(2) Extradition Act 1989: the incorporation of article 6 into Swiss law; the invariable exercise by a judge of the discretion vested solely in him to order a retrial: and an undertaking by the executive authorities of the requesting state that that is what would occur. That was a decision under a differently worded provision. It may well be that if that situation were to recur under the 2003 Act, a similar answer would be given. It does not arise for decision now.

Section 79(1)(c) and 82

23. The District Judge dealt with this point shortly, accepting the submission of the Government of Romania:

"As this defendant's trial has already taken place submissions can only be made on the basis of oppression. I am referred to Kakis v Republic of Cyprus (1978) 1 WLR 777 and the Lord Diplock definition of oppressive -- 'as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period taken into consideration.'"

24. In the case of a person convicted in his absence who has not voluntarily absented himself from his trial, this approach is over-simple. Section 85(5) requires the judge to discharge him unless satisfied that he is entitled to be retried etcetera with the minimum rights specified in section 85(8). The impact of the passage of time on the justice of his retrial, therefore, must necessarily be considered. The starting point is the speech of Lord Diplock in Kakis v Republic of Cyprus [1978] 1 WLR 777 at 782-3:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of this defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.

"As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect: or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude."

25. This formulation requires two issues to be considered:

(i) Whether or not the appellant fled Romania, concealed his whereabouts and identity or evaded arrest, in which case any prejudice brought to him by delay should not avail him. This is not precisely the same question as that already conceded by the Government of Romania as to his voluntary absence from trial .

(ii) The effect of the fairness of his retrial et cetera caused by the passage of time. Mr Fitzgerald has identified a number of factors which he submits must be considered:

(a) It may not be possible to trace the only eye witness and identifying witness against him, Zhai Jing Sheng;

(b) The appellant may have difficulty in remembering and establishing his whereabouts on the relevant date, to set up an alibi in relation to the murder;

(c) The appellant may have difficulty in tracing witnesses in support of his alibi who can remember where he was and what he was doing at the relevant time.

(d) Documents, such as a stamped passport, may have gone missing.

26. These issues were not explored in front of the District Judge. They should have been. The District Judge's conclusion that it was not necessary to go into these questions was, in my opinion, an error of law.

27. Mr Hardy submits that it was an immaterial error because no evidence was adduced before the District Judge about those matters. It seems that none was. Nevertheless, a clear submission was made to her that the passage of time would be bound to have an adverse effect upon the fairness of any retrial because of factors such as these. The issue was before her. It was of a kind which does not necessarily require evidence to argue or to substantiate it. It was an issue which she should have considered.

28. Accordingly, I would remit the question to the District Judge for her to decide again the question of whether or not extradition is barred by reason of the passage of time and to answer that question by deciding whether or not it would be unjust, and not merely oppressive, to extradite him by reason of the passage of time. That issue should be decided on the evidence adduced and the submissions made by both parties at the remitted hearing.

29. I add finally, for completeness, the answer to the written submissions made by the appellant personally that the District Judge did not consider whether the Government of Romania had made out a prima facie case under section 86(1). It was not required to do so, because Romania is a state designated by the Secretary of State for the purposes of section 86(7).

30. For those reasons, I would remit this case to the District Judge for her to answer the question that I have identified.

31. LORD JUSTICE MAURICE KAY: I agree with Mr Justice Mitting's analysis and conclusion in relation to section 82 and the passage of time. I did initially wonder whether, if there is to be a remission in relation to that, there ought also to be one in relation to section 85 on the basis that something may emerge at the remitted hearing in relation to section 82 which could have significance for the section 85 issue. However, I am now persuaded by my Lord's rigorous analysis that the answer to the section 85 issue is freestanding and as he has demonstrated.

32. It follows that I too would allow the appeal to the extent indicated by my Lord. The matter will be remitted to the District Judge under section 104(1)(b) to decide again the part of the issue under section 82 to which he has referred and upon the basis of submissions and any evidence that was called by the parties.

33. Mr Fitzgerald, Ms Dobbin, it may assist the associate if you agree an order in this as it is a remission with us in terms of reference for the District judge.

34. MR FITZGERALD QC: Yes, my Lord. There is just one matter in relation to the dismissal of the appeal as the effect of the order is to dismiss -- not to allow the appeal but to remit a matter. So there is a decision against which, in theory, we have the right to go further. My Lord, the issue then arises whether there is a point of law of public importance. I would respectfully submit that there is and can I just try to formulate it and indicate to your Lordships the course I invite you to take?

35. The issue of public importance relates, obviously, to the reasoning in relation to section 85(8) and we submit it is as follows: whether the test under section 85(8) in the Extradition Act requires the court to be satisfied that the person would actually be accorded the safeguards enumerated in subsection (a) and (b) in the requesting state or, whether it suffices that the rights are recognised by the European Court's jurisprudence and that the European Convention is incorporated into domestic law and that, under the constitution of the requesting country, it is stated to prevail over inconsistent provisions of domestic law. So that is really just, as it were, setting out, I think, the question of actual enjoyment of the safeguards as opposed to the incorporation and what the European Court's case will settle.

36. My Lord, I would respectfully submit that that is a point of law of public importance, whatever your Lordships' course or order is taken in relation to leave and that, clearly, it is of great importance in the sense that, whilst I accept that there may be factual distinctions in Bleta , the approach of the court in Bleta had been to say, "let us look at what the actual position is". But whether or not that is the right interpretation in Bleta , the question of "what are the safeguards actually calling?" may be of great importance because, in most European countries now, the Convention is incorporated and in most it is said, in the constitution or in the case law, to prevail. If your Lordships' decision on this point is correct, it obviously will mean that that is the position in relation to many countries and it will shorten extradition proceedings in relation to these matters. But we submit that there is at least a powerful argument to the contrary that the real question is: "would you enjoy those rights or would you actually be accorded those safeguards in the requesting stake?" And obviously, not wishing to reargue the point, I just submit that there is a powerful argument to the contrary and that it would be fair for their Lordships to consider whether they regard that as the point they should resolve finally. Because obviously, once it is resolved finally, it is of very considerable significance and so, my Lord, I would ask your Lordships to certify the point now. Whether the correct course -- I think we then look at the time limits. We would at least have to seek leave immediately on that point and then the House of Lords would then have to consider whether to hear that point or to postpone it until after the hearing of it.

37. LORD JUSTICE MAURICE KAY: Among the many time limits in the 2003 Act, is there one governing the time in which the District Judge must act on the remittal?

38. MR FITZGERALD QC: Not that I know of but I -- there are time limits for the House of Lords consideration but -- well, I think we would have to look at section 104 of which -- section 103. Section 104(1)(b) directs the judge to decide a question or questions which he decided at the extradition hearing. I am just looking at section 104(7):

"If the judge comes to the same decision as he did at the extradition hearing..."

It does not seem to set down there a provision on which time the judge has to come to that decision. My Lord, I cannot see laid down there a provision as to how soon on a remittal back on a requested person's appeal the District Judge has to reach the decision.

39. LORD JUSTICE MAURICE KAY: Well, it is usually a time limit as to when a hearing must start rather than when it must conclude.

40. MR FITZGERALD QC: Yes. That is the two month period, yes. My Lord, there does not seem to be any provision as to when the resumed hearing, if I can call it that, has to -- unless my learned friend points one out. Were there to be one, I imagine that, even if the Magistrate resumed the hearing, if their Lordship's house thought there was a point involved, there are really two decisions here. There is one, a self contained one, to remit on the oppression point -- we refer to the injustice of the oppressive point, that is to say the section 82 point -- and the other is not to allow the appeal on a more fundamental point under section 85, so that the Magistrate actually could probably continue to decide the point.

41. LORD JUSTICE MAURICE KAY: I am not sure of the wisdom of that.

42. MR FITZGERALD QC: No, I admit --

43. LORD JUSTICE MAURICE KAY: If in fact you are right and we are wrong, well, then the initial hesitation to which I referred in my very brief judgment would have some effect, or might.

44. MR FITZGERALD QC: Well, my Lord, it is simply -- obviously we have to divide up the issue of "is there a point of law of public importance?" We say, "yes, there is", and then should leave be given and, obviously, I submit that that would be desirable too but I accept that that is governed by a wider discretion in your Lordships.

45. MR JUSTICE MITTING: Does this formulation encapsulate your proposition: "Are the requirements of section 85(5) and (8) satisfied if it is demonstrated that the law of the requesting state entitles the appellant to the rights specified in section 85(5) and (8) or must it also be demonstrated that such rights are effectively afforded to him in practice?"

46. MR FITZGERALD QC: My Lord, I think that is probably more concise and I do not imagine that their Lordship's house is in the end going to be -- I think that is the point but I do not think that it would be worth me pursuing the point about incorporation of the European Convention, although that, I suspect, is the concept of law that we are concerned with. But no, my Lord, I think -- in the end I have to say that it is now actual enjoyment rather than theoretical entitlement and, if I am wrong about that, then it would apply generally. In other words, even if one did not have the European Convention, it would be, if the correct answer under the constitution should be X then the fact that the real position is not that, would also be wholly --

47. MR JUSTICE MITTING: The position could arise under American federal or state law, for example. There the Convention would be irrelevant.

48. MR FITZGERALD QC: Yes, where the same test would -- yes. I accept that, my Lord, if one said that state law will mean this is what he gets but that eventually under the Constitution he might, if the Supreme Court looked at it again, the other thing -- my Lord, I think that is another example.

49. LORD JUSTICE MAURICE KAY: Well, we understand your submission. Ms Dobbin, do you want to say anything?

50. MS DOBBIN: My Lords, if I can respond in the very briefest of terms. We respectfully submit that no question of public importance arises upon the facts of this case: first on the basis of your Lordships' ruling that the Convention has primacy as a matter of European law and, secondly, because of the facts of this case, there was no compelling evidence that the Convention was, as it were, materially disregarded and that there was, as it were, no practical regard given to Article 6 rights.

51. My Lords, as regards the second issue that arises as to the management of this case, because the time was so short between the hearing and this ruling I was not able to give detailed considerations to what might happen as regards to this eventuality. If your Lordships would like us to think about it further, of course, my learned friend has 14 days to apply to this court with the certified question and we could respond, if he does that, giving proper consideration to what might be done practically. But, certainly, there is no provision for it in the 2003 Act.

52. LORD JUSTICE MAURICE KAY: OK, thank you. (Pause)

53. Well, Mr Fitzgerald, we shall certify in the form drafted by my Lord. We shall refuse permission and leave it to their Lordships to decide. It occurs to us that, in deciding, their Lordships may be assisted by a transcript of Dr Mihai's evidence. For perfectly sensible reasons, we have not set it out in detail or in extenso in the judgments here.

54. MR FITZGERALD QC: My Lord, I would be very obliged for that.

55. LORD JUSTICE MAURICE KAY: So we will direct a transcript of evidence be prepared expeditiously and, in view of the fact that this is a 2003 Act case, we direct a transcript of the judgments in this case be prepared expeditiously and leave you to the tender mercies of SW1.

56. MR FITZGERALD QC: My Lord, I am obliged. Do I need to trouble you with my legal add taxation?

57. LORD JUSTICE MAURICE KAY: If you do, you have it.

58. MR FITZGERALD QC: Thank you, my Lord. Then do you wish us to draw up the order? It is pretty clear, I think.

59. LORD JUSTICE MAURICE KAY: Well, my Lord can give the associate the draft question, as he has written it, and in those circumstances -- I think it would still assist the District Judge if you were to do a draft order. Can you do that today?

60. MR FITZGERALD QC: My Lord, yes.

61. LORD JUSTICE MAURICE KAY: Thank you both very much.