Iacob v Courthouse of Bacau (Romania)

On 15 October 2015 Senior District Judge Riddle ordered the extradition of Mr Dragos Iacob to Romania in response to a European Arrest Warrant (“EAW”) issued on the 8 July 2014 and certified by the National Crime Agency on 31 May 2015.

The EAW was a conviction EAW. It relates to three offences equivalent to the theft of fish from private waters contrary to Schedule 1 of the Theft Act. The offences were committed in the period 20 – 25 July 2010. The Appellant was present at the trial and was aware of the conviction. The full sentence remains to be served.

A fourth offence was included in the EAW. That offence was a robbery committed on 31 January 2012, in respect of which a suspended sentence was imposed on the Appellant on 10 July 2012. The District Judge found that that fourth offence was insufficiently particularised and accordingly the Appellant was discharged in relation to that offence.

On 3 May 2016 Mr Justice Ouseley granted permission to appeal on a single ground, namely, that the EAW was invalid for want of sufficient particulars under section 2(6) of the Extradition Act 2003 and accordingly should have be discharged. Permission to appeal in relation to article 8 ECHR was specifically refused by Ouseley J on the same date. No renewal application was lodged in relation to that ground prior to the present hearing. Ouseley J has made the following comment in respect of the Article 8 ground:

“The article 8 argument is hopeless whatever the basis of sentencing. These were serious thefts and could have been charged as such in the UK, and not just as fishing offences. The impact on family life could not possibly out-weight the public interest in extradition if the section 2 point is wrong. If the Appellant wants to renew this ground that will be dealt with at the appeal together with the substantive appeal if leave on article 8 is granted.”

At the commencement of this appeal, Ms Amelia Nice, who appeared on behalf of the Appellant, raised two preliminary matters. First she sought permission to advance an appeal on the basis of article 8 ECHR. Ms Amanda Bostock for the Defence opposed that application on the grounds of delay.

The basis of the application to revive the article 8 grounds is that the Appellant is now married, and his wife gave birth in December 2016. Ms Nice sought to argue that the change in the Appellant’s life as a result of the birth of his son extradition would now make extradition a disproportionate interference with his article 8 rights and those of his family.

Having heard arguments as to the delay in seeking to renew this ground, I gave the Appellant permission to advance the argument. The District Judge’s decision was made on 2 October 2015, at a time prior to the Appellant’s wife falling pregnant. Although there was regrettable delay on the part of the Appellant in raising the matter thereafter, it seems to me right to allow the argument to be run.

The Appellant’s second preliminary issue was an application to rely on expert evidence as to Romanian law. No application for permission had been made prior to the commencement of the appeal hearing and I saw no good reason for admitting that material. The evidence was far from decisive and the arguments addressed in it could as well be addressed on the basis of the material already available. In those circumstances that application was refused.

Section 2 of the Extradition Act 2003 provides as is material follows:

Section 26 of the Act entitles a requested person to appeal to the High Court against an order for his extradition. Section 27 sets out the court’s powers on such an appeal.

Central to this appeal are the terms of the EAW. It is necessary, therefore, to set out parts of that warrant at a little length.

The warrant was issued by the Bacau County Courthouse of Romania, Penal Department and reads as is material,

“EUROPEAN ARREST WARRANT No. 28 from 08-07-2014

The warrant hereby is issued by the Courthouse of Bacau the competent judicial authority.

Request arrest and surrender of the person listed below to the judicial authorities in order to make the execution of a custodial sentence.

a)

Information regarding the identity of the requested person:

Name: IACOB

Second Name: DRAGOS EUGEN

……………….

The decision on which the warrant is based:

1.

The arrest warrant of the judicial decision:

Type: The warrant for the execution of the prison sentence no. 1394/2014 from 27.05.2014, issued by the Courthouse of Bacau in the file no. 7752/180/2013,

2.

Final and enforceable judgment:

Criminal sentence no. 1193 from 23-04-2014 pronounced by the Courthouse of Bacau, final on 27.05.2014 by lack of appeal, on the basis of which it was disposed:

…

I. On the basis of article 396, paragraph 1, 2 from the New code of Penal Procedure condemns the defendant for the offense stipulated by 48 New Penal Code related to article 64 letter I from GEO no. 23/2008 by applying the article 36 New Penal Code and by applying the article 5. New Penal Code to the fine penalty amounting to 1000 lei (100 days-fine multiplied by 10 lei day-fine).

…

II. On the basis of article 396, paragraph 1,2 from the New Penal Procedure condemns the same defendant for the offence foreseen by article 65 paragraph 1 letter a from GEO no. 23/2008 by applying the paragraph 36 New Penal Code and by applying the article 5 New Penal Code to the punishment of one year of prison.

….

II.1. On the basis of article 85 Penal Code, cancels the conditional suspension of the execution of two years of prison applied to the defendant Iacob Dragos-Eugen through the penal sentence no. 140/10-07-2012 pronounced by the Courthouse of Adjud in the file no.913/2012, final by the lack of appeal on 24-07-2012.

III. On the basis of article 396 paragraph 1,2 New Code of Penal Procedure condemns the same defendant for the offense of qualified theft foreseen by article 228 paragraph 1 related to article 229 paragraph 1 letter b New Penal Code by applying the article 36 New Penal Code and by applying the article 5 New Penal Code to the punishment of one year and six months of prison.

…

III.1. On the basis of article 85 Penal Code, cancels the conditional suspension of the execution of two years of prison applied to the defendant Iacob Dragos-Eugen through the penal sentence no. 140/10-07-2012 pronounced by the Courthouse of Adjud in the file no. 913/2012, final by the lack of appeal on 24-07-2012.

On the basis of article 33 letter a related to article 34 paragraph 1 letter e merges the punishments from point I., II.1 and III.1 and applies to the defendant Iacob Dragos-Eugen the biggest punishment of two years of prison to which adds an increase of 6 months of prison.

…

Punishment to execute: the main punishment of 2 years and 6 months of prison, the complementary punishment of prohibition of exercising the rights foreseen by article 66, paragraph 1, letter a,b,h,k from the New Penal Code and the prohibition of fishing right for a period of three years and the additional punishment of the prohibition of exercising the rights foreseen by article 66 paragraph 1, letter a, b, h, k from the New Penal Code and the prohibition of fishing right.

Punishment to execute: 2 years and 6 months of prison……..

………

2.

Duration of punishment or of the applied custodial security measure: 2 years and 6 months imprisonment.

3.

Punishment remained to be performed: 2 years and 6 months imprisonment…….

………..

The offense (the offenses):

The hereby warrant is referring to a total of: 4 offenses

Description of the circumstances in which it / they committed the act/acts, including the moment (date and time), place and degree of participation in this/these of the followed person:

It held that: within the period from 20-25 July 2010 (three offences), he helped the defendant Chitoi Vasile, to poach fish with monofilament nets and electrical device supplied by an electric power source, the monofilament net belonging to the defendant Chitou Vasile, without having an authorization of ownership and use of the tools for commercial fish, taking away in this way a part of the fishes from the lakes S.C.Gan Fis S.R.L. Bacau, working point Orbeni, meaning 500 kilo of fish.

Thus:

During July 2010 the co-defendant Chitoi Vasile asked him to pick him from the lake Beresti because he (Chitoi Vasile) had a bag with fish and he couldn’t transport it to his domicile. Next evening (22-07-2010) they went together to Orbeni where they thrown the fish nets in the water, the defendant Chitoi Vasile telling him that was not the first time he was fishing there. They got around 60 kilos of fish which was taken by the defendant Chitoi Vasile. The next day IACOB Dragos Eugen received from his friend 300 lei.

They came back the next evening (23-07-2010) they installed in the lake the monofilament net and one thread net, linked to one another and the next morning they noticed that the monofilament net was clinged to the trees roots, broke that’s why they abandoned it there while the thread net catched around 25 kilos of fish which was valorised by the defendant Chitoi Vasile, the defendant Iacob Dragos Eugen receiving 30 lei.

As Chitoi Vasile’s boat was broken in the third evening (24/25-07-2010) they took the boat of the defendant Dragos Eugen Iacob. Chitoi Vasile had with him an electrical device for catching fish and the defendant Iacob Dragos Eugen helped him to poach fish with the electrical device supplied by a power supplier, without having an authorization to own or to use for fishing the devices for commercial fish, taking from the lakes of S.C. Gan Fich SRL Bacau, working point Orbeni.

Meanwhile, through the penal sentence no. 140/10-07-2012 pronounced by the Courthouse Adjud in the file no, 913/2012, final by lack of appeak at 24-07-2012 was condemned to prison sentence for 2 years with conditional suspension for the fact that in the evening of 31-01-2012, following an understanding with the defendants Mazilu Boby Petrica and Ghiurca Cosmin Petrut, he transported these ones with his Dacia 1310 in Adjud town in order to commit the offences……

(my emphasis throughout).

Senior District Judge Howard Riddle gave judgment in this case on 2 October 2015. The relevant part of his judgment for the section 2 argument was as follows:

At the hearing I concentrated mainly on the s2 point raised by the lawyer at the first hearing. Mr Iacob himself did not argue it, but I thought it necessary to do so on his behalf.

There are four offences. A cumulative sentence of 2 years and 6 months has been imposed to cover all four. These are conviction offences and the defendant has been provided with enough information to enable him to know what he has been convicted of and sentenced for. He was present at the trial and clearly understands the nature of the offences, as he told me about them. Section 2(6) requires, for a conviction warrant: particulars of identity; of the conviction; of any other warrant; of the sentence that may be imposed; and of the sentence that has been imposed.

For three of the offences the details provided are clear, giving facts and legal sections. However, for the fourth there are inadequate particulars of the conviction to enable me to establish, from the warrant alone, whether this is an extradition offence. That is fatal as far as that offence is concerned. It cannot be corrected by extraneous information, even though here we know from the defendant what the conviction involved…

This brings us to s10, extradition offence, which was not advance by the defendant or his lawyer, when he had one. Mr Madurai suggests the remaining three offences are theft or the separate offence under Schedule 1 of the Theft Act of taking fish from water which is private property. Looking at the warrant as a whole it is clear that the lakes in question belong to SC Gan Fich SRL Bacau. The Romanian authorities refer to poaching and using unauthorised devices, which may also be offences here. I am satisfied the three sets of conduct would amount here to the Schedule 1 offence, and possible other offences.

One of the offences, that under article 64, is not imprisonable. However I accept Mr Madurai’s argument based on Pilecki [2008] UKHL that it is sufficient that the aggregated sentence was for four months or greater. Also Brodziak and others [2013] EWHC 3394 decided, after examining earlier cases that “neither s2 (6 (c)) nor s65(3)(c) creates an obstacle to extradition in circumstances where the warrant refers to a single sentence imposed for multiple offences that include one or more non- extradition offences”. In those circumstances the fact that one offence is discharged is not a ground for refusing extradition.

Decision

Offence four, classified as robbery is discharged. Otherwise there is no bar to extradition, and no human rights argument prevails. I must order that Mr Iacob be extradited to Romania………..”

On behalf of the Appellant, Ms Nice observed that he was sought by Romania in order to serve a “merged” sentence of 2 years and 6 months imprisonment. She argued that the EAW was invalid because it failed to set out the required particulars; the merged sentence appears to have been made up of the four separate sentences set out in the warrant. She said that it is unclear from the information in the EAW for what the final sentence of 2 years 6 months was imposed and that, applying the reasoning in Edutanu v Romania [2016] EWHC 124 (Admin), the EAW is consequentially invalid.

Ms Nice argued that the conclusion of the District Judge was that the 2 years 6 months sentence was imposed for all 4 offences. She said that on a fair reading of the warrant it is impossible to know whether the last 6 months, applied on the basis of article 33 of the Romanian penal code (and underlined in the passage cited above), “comes from an increase in the sentence for the EAW offences or an additional sentence added as a result of the robbery or indeed another offence not otherwise referred to or particularised in the warrant”.

In response, Ms Bostock contends that the sentence imposed can readily be understood if considered closely. She says that there is a break down in the warrant of the sentences imposed for each offence. She says it is clear that the sentence imposed for the theft offences was 2 years and 6 months (1 year added to 1 year 6 months), and that 2 years concurrent was imposed in respect of the merged fine and activated suspended sentence. As she put it in her skeleton argument “It is the greater of the penalties that is served and therefore the sentence of 2 years and 6 months was imposed and is the period for which return is sought”.

Ms Bostock summarises her case thus

“putsimply, the EAW does explain the period of imprisonment which relates to each offence. There is no mystery period of imprisonment which could be the result of an unknown or un-particularised offence. The position, whilst complex, is clearly set out for every offence which forms a part of the request and accordingly the EAW is valid”.

It was agreed by both parties that central to the resolution of this appeal was the proper application of the principles identified by the Divisional Court in Edutanu. That case concerned four appeals against extradition decisions in which the court was required to consider the requirements of section 2(6)(b) of the 2003 Act for European Arrest Warrants to contain “particulars of conviction”. Romania was the requesting state in each case. The warrant stated that sentences for other offences had been “merged” into the offences for which the requested person’s return was sought. The issue was the extent to which the conviction warrants had to give particulars of the merged offences in order to be valid, with particular emphasis on the significance of Box E in EAWs..

Beatson LJ, with whom Cranston J agreed, analyzed the issues in this way.

“97 The starting point must be the words of the statute. Section 2(5) of the 2003 Act refers to the person in respect of whom the warrant has been issued and whose extradition is sought as (a) one who has been convicted of an offence specified in the warrant and (b) one where the warrant has been issued with a view to his extradition for the purpose of being sentenced for the offence (which is not relevant in the cases before us) or of serving a sentence of imprisonment imposed “in respect of” the offence.

98 It is clear from section 2(6)(c), (d) and (e) and it is implicit in section 2(6)(b) that the particulars referred to must be particulars of the conviction “in respect of” which the warrant was issued and extradition is sought. What, however, is the significance of the use in section 2(5)(b) and section 2(6) of the phrase “in respect of” the offence rather than “for” the offence. Although it may be a pointer to understanding these provisions as having a broader ambit and including some or all of the different ways in which other offences may become “merged” in the offence in respect of which extradition is sought, in my judgment the basic position is that “the” offence in section 2(5)(b) is the offence in respect of which extradition is requested. I thus accept Mr Knowles's submission that box (e) of the EAW which deals with the offence or offences to which the warrant relates is important. I do not, however, consider it conclusive as to what the total sentence reflects.

99 It is also relevant to observe that Article 8(g) of the Framework Decision requires a requesting state to put into the EAW “if possible, other consequences of the offence” but Article 8 does not require a description of the circumstances giving rise to those consequences…

104 With that introduction, I have concluded that the significant aspects of the decisions summarised in section III of this judgment are as follows. First, in Echimov's case, despite stating in section 1 of box (e) that the EAW related in total to one offence, in section 2 of that box information is given about two offences only one of which is particularised. It was thus apparent that extradition was being sought in relation to two separate offences. The consequence was that the EAW did not comply with what I have described as the “basic position”; that “the” offence in section 2(5)(b) is the offence or offences for which extradition is sought and in respect of which by section 2(6)(b) it is a mandatory requirement that particulars be given. I do not consider that Echimov's case is justified solely because the unparticularised offences were dealt with in box (e). It may be easier to conclude that extradition is being requested for offences for which the mandatory requirements of section 2 have not been met where all the material is found in box (e), but EAW as a whole has to be considered and other parts of it may show that the requested person was sought to serve a sentence for an unparticularised offence so that the EAW is not valid…

108 Mr Knowles is correct to submit that Arranz's case shows that the fact that an offence which has been merged with the offence which is the subject of the request for extradition and dealt with in box (e) has not been particularised is not in itself fatal to the validity of the EAW. Mr Jones and Mr Wolstenholme correctly argue that account must be taken of the fact that there was no way that Arranz would serve more than the 30 years for the two offences particularised in the EAW which is the maximum permitted under Article 30 of the Spanish Criminal Code. ..

109 That, however, does not get them home. First, the proposition (see [93] above) that where a sentence relates to another conviction in any way the conviction must be particularised is inconsistent with Arranz . Secondly, and somewhat inconsistently with that proposition, Mr Jones … that an EAW which sets out a number of distinct sentences for which extradition is sought but particularises the convictions in relation to some offences and not others is not necessarily invalid. It appears that he thus draws a distinction between distinct sentences and merged sentences for a number of convictions. …After all, the Pilecki , Kuchera and Brodziak line of cases show that single composite sentences do not render the EAW entirely invalid and can in certain circumstance in effect be disaggregated in the way I have described.

…

113 The discussion above shows that where it appears from the terms of an EAW read as a whole that the IJA is seeking a return that would mean the requested person will serve a longer sentence than the sentences for the offences for which extradition is sought and that the total sentence is in respect of offences which have not been particularised rather than only aggravating those which have been particularised it will not be valid. … particular care must be taken in ascertaining the meaning of the EAW in such cases. The fact that the EAW refers to a total sentence to be served that is longer than the sentence for the particularised offences is a strong pointer to construing the sentence as “originating from” and being for the unparticularised conduct. ... Care also has to be taken where there is a possibility that a requested person will serve a disaggregated shorter sentence in respect of an unparticularised offence…”

I draw the following conclusions relevant to the present case from that analysis;

With that analysis, and those principles, in mind I turn to the warrant in the present case. Paragraph (I) in box B relates to an offence under article 64 of the Romanian New Penal Code for which a fine of 100 lei was imposed. The section of the warrant which sets out the “applicable statutory provisions-applicable code” explains that article 64 relates to the use of certain fishing equipment.

Paragraph (II) refers to an offence under article 65 of the New Penal Code for which a punishment of 1 year’s imprisonment was imposed. Article 65 relates to electrical fishing. A sub-paragraph of that section of the warrant, numbered (II.1) explains that article 85 of the penal code, which is set out in detail at the end of the warrant, has the effect of cancelling the conditional suspension of a period of imprisonment imposed by a different court, “the Courthouse of Adjut” in July 2012, so that that sentence becomes operable.

Paragraph (III) of the warrant indicates that a sentence of 1 year and 6 months imprisonment was imposed for the offence of theft contrary to article 228 of the penal code. The subparagraph to that provision, namely paragraph (III.1) explains the operation of article 85 in respect of this offence.

Thus the effect of those provisions of the warrant is to impose 1 year’s imprisonment for electrical fishing and 18 months imprisonment for theft.

The EAW then goes on to explain that the effect of articles 33(a) and 34(1)(e) of the penal code was to merge the fine specified under paragraph (I) and the two orders which cancelled the conditional suspension of previous sentences. That meant the defendant would be liable to serve the 2 years previously suspended. However, because the sentence for the electrical fishing and the theft totals 2 years and 6 months, the sentences are merged and activation of the suspended sentence adds nothing to the total. Accordingly as the emboldened text beginning “punishment to execute” explains, the net effect is to impose punishment of “2 years and 6 months in prison”.

As noted above, in paragraph 99 of his judgment in Edutanu, Beatson LJ pointed out that article 8G of the Framework Decision requires the requesting state to put into the EAW “if possible, other consequences of the offence”, but article 8 does not require a description of the circumstances giving rise to those consequences. As Ms Bostock correctly submits in her skeleton argument “much of the description in Box B (2) of the EAW is complying with that framework requirement.” It details the additional impact of the sentence, and explains that the sentences of immediate imprisonment imposed caused the activation of the sentence which had been previously suspended.

In my judgment, it is plain that the Romanian authorities are seeking a return which would mean that the Appellant will serve a sentence of 2 years 6 months, precisely the sentence imposed for the offences for which extradition is sought.

I reject the submission of Ms Nice that it is unclear whether the additional 6 months (added to the 2 years) comes from an increase in the sentence for the EAW offence or an additional sentence added as a result of the robbery or indeed another offence not otherwise referred to or particularised in the warrant. The 6 months served to make up the sentence to 2 years and 6 months which was the sentence imposed for the extraditable offences. There is no basis on which it can fairly be said that the 6 months might relate solely to the robbery offence which was discharged by the District Judge. On the contrary it is plain that the 2 years 6 months was imposed in respect of the theft and the electrical fishing offences.

On that basis I reject the principal ground of appeal advanced by the Appellant. I see no merit in the appeal based on section 10. In my judgment no proper concerns arise here about the protection of specialty rights. As Ms Bostock submitted, each offence can properly be linked to a period of imprisonment. There is nothing to indicate that the Romanian judicial authorities would have any difficulty in disaggregating the sentence to reflect the District Judge’s discharge of the sentence of the robbery and there is nothing to displace the presumption that Romania will act in accordance with its international obligations.

The Judge dealt with Article 8 as follows:

“The evidence…relevant to article 8 was uncontroversial and I accept it. Mr Iacob came to this country on 19^th April 2014 and has since worked as a labourer/handyman for his brother-in-law Mr Popescu. He is a hard worker, and reliable. The defendant is unmarried but lives with his girlfriend Christine. They are both healthy, and have no children.

As far as article 8 is concerned, the evidence does not come close to amounting to a reason not to extradite. The factors against extradition are that since coming here in 2014 he has had a job, is hardworking, has a girlfriend, a sister and a brother-in-law here. I was not told, but assume he is of good character in this country.

Against that he was at the hearing, knows of (and is aggrieved by) his sentence, and nevertheless came to this country last year. Poaching on this scale is a serious offence, or at the very least not a minor offence, and there is a significant sentence to serve. Mr Iacob wants to attend his appeal, if permission to appeal is granted. Our international obligations, and our respect for the judicial systems of our EU colleagues, outweigh the comparatively recent private and family life Mr Iacob has built here. The article 8 argument fails……

There was no dispute as to governing principles to be adopted when the court is required to consider the application of Article 8 ECHR under section 21 of the 2003 Act. Those principles, which are set out in Norris v United States [2010] UKSC 9, R. (on the application of HH) v Westminster City Magistrates' Court [2012] UKSC 25 and Polish Judicial Authorities v Adam Celinski [2015] EWHC 1274 (Admin), are too well known to require repetition here.

Ms Nice’s submission on Article 8 concentrated on the consequence of the fact that, since the extradition hearing, the Appellant has married and his wife is now expecting their first child. She argues that that change in the life of the family is such that extradition would now have a far greater impact than his simply being absent for a period of time. She reminds me that the interests of the child are a primary consideration in the Article 8 balancing exercise. She says that it is “not unreasonable to conclude” that the Appellant’s absence will impact upon the child. She emphasises that because the Appellant’s partner has no income, it is almost inevitable that she will have to leave their current accommodation “to face an uncertain future”. She says that the Appellant will experience stress and anxiety about how his wife and son are managing whilst he is detention. On the other side of the equation, Ms Nice argues that, whilst not trivial, the theft of fish was not the most serious of offending. She says that the financial gain made by the Appellant was modest.

In response, Ms Bostock argues that it is apparent that the decision to have a child must have been deliberate. She refers to the witness statement of the Appellant’s partner who says at paragraph 6 “We could not continue to put our lives on hold we wanted to continue our lives together and grow as a family. That is why we decided to have a baby.” That decision, Ms Bostock says, was made in full knowledge of the outstanding extradition order then under appeal and the likely consequences.

As I pointed out above, Ouseley J described the Article 8 argument in this case as hopeless. Whilst Ms Bostock makes a fair point as regards the Appellant and his wife knowing of the extradition proceedings when they decided to have a child, that was not the fault of the child. I have to have regard to the Article 8 rights of the child as much as to those of its parents.

Nonetheless, this was not a trivial offence and the sentence, which reflects the seriousness with which the offence is viewed in Romania, is significant. In those circumstances, the weight to be given to the international obligations of the United Kingdom and the respect to be accorded to the judicial systems of other EU nations, in my judgment, comfortably out-weighs the Article 8 rights of all members of the family on the facts of this case.

In those circumstances, this appeal must fail.