Victor Constantin v Court in Bucharest (Romania)

The Appellant is aged 46 and is wanted for extradition to Romania. That is in conjunction with a conviction Extradition Arrest Warrant (the ExAW) which was issued on 7 September 2021 and certified on 24 May 2022, on which he was arrested on 11 July 2022 and then released on conditional bail. After an oral hearing at which he gave oral evidence and cross-examined, his extradition was ordered on 17 May 2023 by DJ Heptonstall (the Judge) at Westminster Magistrates’ Court (WMC), for reasons explained in a 27-page judgment (the Judgment). The Judgment includes a 5-page summary of the Appellant’s written and oral evidence. The Appellant’s written evidence was in the form of 3 proofs of evidence (“POE1” dated 17.11.22, “POE2” dated 21.11.22 and “PO3” dated 14.3.23).

The Appellant’s application for permission to appeal was refused on the papers by Wall J (13.10.23). At an oral hearing (7.12.23) Farbey J ordered that:

Farbey J went on to order:

The Judge made these “principal findings of fact”:

POE1 told the Judge that the Appellant had come to the UK in June 2016, “because I couldn’t stay in Romania with all the arguments and fights with the court and UNBR 1883 and the Supreme Court 2015 decision. I needed to work and earn money and because my bar licence was suspended.” He explained that he had joined UNBR 2004 (also known as “the Bota bar”) in 2008, whose fees were lower than “the main bar” (UNBR 1883); that he represented people between 2008 and 2015; and represented “a friend” in January to March 2016. He described UNBR 2004 as “rejected by the Supreme Court in 2015 as the court confirmed that to practise law in Romania you must take the enrolment procedure via UNBR 1883”. All of this was relevant to the Judge’s principal findings of fact (i) and (iii).

POE2 told the Judge that the Appellant “was expelled by the UNBR 2004 due to a disagreement with Mr Bota where I refused to pay him a donation of £1,000. I challenged my expulsion at the Appeal Court in Bucharest in 2012, the decision which I exhibit as VC/02. This decision suspended my expulsion. Mr Bota attempted to appeal to the Supreme Court but was unsuccessful. The new chair of UNBR 2004, Mr Nimerincu Viorel (chair from 3 January 2012) cancelled the decision of Mr Bota. I was therefore a member of UNBR 2004 between 2013-2016, during the period of the alleged criminal conduct”. VC/02 is headed Court of Appeal in Bucharest (772/2/2012) and dated 6.3.12. POE3 exhibited a letter dated 14.11.12, said now to have been obtained from the “archives” of UNBR 2004, confirming the decision withdrawing the UNBR 2004 suspension. All of this was relevant to the Judge’s principal finding of fact (ii).

The Appellant relied before the Judge on a report (October 2022) written by Dr Radu Chirita, a human rights professor and defence lawyer in Romania. Within the Chirita Report there are references – among other sources – to Romanian Law No.3 of 1948; Law 51/1991; Law 51/1995; and Law 255/2004.

In the Judgment, the Judge set out these 12 “core contentions” from the Chirita Report:

The ExAW includes the following description:

The ExAW includes a description of a judgment of the Fourth District Court in Bucharest No.1741 (10.7.20) in relation to “three material acts between August 2013 and June 2014”, committing the offences of Unlawful Practice of a Profession and Unlawfully Using Names and Robes. The July 2020 judgment imposed a fine (Lei 5,750), to operate concurrently to a previous custodial sentence (256 days). In the Judgment, the Judge found that these 2013 and 2014 offences “fail the criterion in s.65(3)(c)” of the Extradition Act 2003, as “only fines were imposed in relation to those matters”.

The ExAW included a description of a judgment of the Fourth District Court in Bucharest No. 2356/2019 (31.7.19) declared final by Decision 605/C (23.6.20). This was the judgment under which the custodial sentence (256 days) had arisen. It had been preceded by judgments of the Fourth District Court in Bucharest No. 108 (17.1.18) and No. 2356 (31.7.19). The July 2019 judgment replaced an unpaid fine (Lei 6,900) with 276 days custody. The June 2020 judgment reduced this to 256 days custody (because of a part-payment of Lei 500). The fine (Lei 6,900) and custody (256 days) had in turn arisen out of “two material acts between February 2015 and January 2016” committing the offences of Unlawful Practice of a Profession and Unlawfully Using Names and Robes.

As to the “two material acts between February 2015 and January 2016”, the ExAW included the following description:

I have set out the Judge’s principal findings of fact (§4 above). I have explained that the Judge found that the 2013 and 2014 offences failed the criterion in s.65(3)(c) (§10 above). Other findings of the Judge were that the Appellant was not a fugitive (linked to principal finding (vii)), but that he was aware of the proceedings and was deliberately absent from the trial (linked to principal findings (iv) and (v)).

The Judge found that the 2015 and 2016 offences were extradition offences in terms of s.65(3)(b), which requires that “the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom”. This was a finding by reference to the Legal Services Act 2007, for the following detailed reasons in the Judgment. First as to Offence 1:

This was the Judge’s Article 8 proportionality evaluation (§§55-57):

At the forefront of his submissions to me, the Appellant has made and maintained a number of what I will call “fundamental points” about the European Convention on Human Rights. These were, in essence, as follows:

I am unable to accept these points. I will explain why. I will start with Articles 6(3)(c) and Article 11. The Appellant says – based on Article 6(3)(c) – that there is an inalienable human right of any individual who is a litigant in legal proceedings to instruct any other individual to be their representative in any legal proceedings in any court. He says that this inalienable human right belongs to the litigant and also to the other person who is the chosen representative. He says – based on Article 11 – that no person can be required to join any association, or any particular association, to give legal assistance for a fee in legal proceedings. No state action can curtail these fundamental rights.

The logic of this is far reaching, as the Appellant confirmed. The Appellant says he has an inalienable human right – under Article 6 and/or Article 11 – to agree, for a fee, to act as a representative giving legal assistance for any individual who wished him to do so, in any court (within an ECHR state). He told me, straightforwardly, that if he – or anyone else – were to operate within the precincts of, say, the Royal Courts of Justice in London (or any other court in the Council of Europe) – including wearing a lawyer’s robes – he could agree to assist any litigant for a fee, and any measure which impeded this, including any refusal by any Court to hear him addressing that Court, would breach his ECHR rights as well as the rights of the litigant. Any legislation, rule or judicial ruling which precluded these inalienable rights, or criminalised such conduct, would be a violation of Article 6. Any legislation, rule or judicial ruling which required – as a precondition – that the individual giving legal assistance belong to a bar or other association would be a violation of Article 11.

This is not a position which can be derived from Article 6 or Article 11. If it were, the provisions of the 2007 Act which the Judge discussed (§14 above) would be incompatible with the ECHR. Public interest regulation of rights to conduct proceedings and rights of audience, including regulatory authorities and regulated associations, are very well-established for good and legitimate reason.

Article 6(3)(c) is a minimum human right of a criminal defendant. It is their right to defend themselves in a criminal prosecution, through “legal assistance” of their “own choosing”. Even in that setting, the Appellant has cited no authority or commentary in support of this being absolute. Absent any support, I would reject that contention. In fact, the European Court of Human Rights publishes a Guide on Article 6 (right to a fair trial: criminal limb), available online and updated on 31.12.20. This explains (§458) that the right of everyone charged with a criminal offence to be defended by counsel of their own choosing is “not absolute” and can be overridden for “relevant and sufficient grounds” which are “necessary in the interests of justice”. There are hyperlinked references to relevant cases.

Article 11 is a qualified right. The Appellant cited no authority or commentary in support of the contention that it precludes obligations which pursue aims of public regulation. Absent any support, I would reject that contention. In fact, the European Court of Human Rights publishes a Guide on Article 11, also available online and updated on 31.12.20. This explains (§§124-126), under a heading “public law institutions, professional bodies and compulsory membership”, the permissibility of “professional associations” with statutory objects to “regulate and promote the professions whilst exercising important public-law functions for the protection of the public”, including “bar associations”. The hyperlinked citations even include Bota v. Romania. This is the case described in the Chirita Report (§8 point (xii) above), where Mr Bota brought the unsuccessful claim in the ECtHR, arguing that a requirement to be a member of the Romanian Lawyers’ Union to be able to practise as a lawyer violated Article 11 freedom of association.

Pausing there, the Appellant’s Article 6 and 11 arguments face a second problem. In extradition proceedings, the question is whether the extradition would be incompatible with ECHR rights. That is not a roving responsibility to enquire into any human rights question having any connection with the case. Suppose there is a conviction ExAW and the requested person says “my trial violated my Article 6 rights to a fair hearing”. They would have to establish that the trial was “flagrantly unfair” and “not merely that it contravened Article 6”. Cases where this has been explained include Elashmawy v Italy [2015] EWHC 28 (Admin) at §38. Each ECHR state is responsible for the acts of its own public authorities. The starting point is that it is for the state judicial authorities to secure ECHR-compatibility. That responsibility will have been on the Supreme Court in Romania when it decided the 2015 case.

There is another problem. Farbey J’s grant of permission to appeal was expressly restricted, in her order and her reasons, as to what was and what was not being given permission. The Appellant’s Article 8 point invokes “in accordance with the law” as a component of Article 8. But that is not a back-door route to rely on other legal points which have been, or could have been, ventilated. Farbey J was clear that it is the “proportionality” limb of Article 8 which has permission to appeal, and nothing else.

This problem about the scope of the appeal is fatal to the Appellant’s Article 5(1)(a) point, his Article 7(1) point. It is also fatal to the various other submissions made by the Appellant, about what he says is the true legal position in Romania. He has variously argued that: (1) the Romanian Parliament abolished UNBR 1883 in 1948; (2) the Romanian Parliament abolished the State in 1991; (3) the Romanian Parliament abolished every court (but not tribunals or the court of appeal) in 2004; and (4) Law No. 51/1995 does not exist as a law. These are plainly outside the scope of this appeal. But, I should make clear, I can find no legal merit in any of the points to which I have referred. Nor, I add, are they supported by the key points in the Chirita report (§8 above).

Although it too is outside the scope of the appeal, I will deal separately with the argument that an ExAW must specify a relevant breach of an ECHR right by the requested person. Again, no source of law or commentary was provided by the Appellant in support of this. The ECHR is not a set of criminal or extradition offences by private individuals. The ECHR is a set of human rights to be protected by state authorities. State protection certainly requires having, and enforcing, criminal law. So, for example, having and enforcing a crime of murder is one important way of protecting Article 2 (the right to life). What are needed, in an accusation extradition case, are particulars as to “any provision of the law of the category 1 territory under which the conduct is alleged to be an offence (reflected in s.2(4)(c) of the 2003 Act). In a conviction extradition case, there must be details of the conviction and any sentence (reflected in s.2(6) of the 2003 Act). In this case, the relevant provisions of Romanian criminal law were, in any event, identified (§9 above). Extradition proceedings involve controls as to whether the offence is an extradition offence (s.65), and the Judge applied those tests (§§13-14 above). The Appellant at one stage argued that there is a minimum 12 month custodial sentence; but the Judge correctly identified the 4 months minimum, in this as a conviction ExAW case (s.65(3)(c)).

Before I turn to the issue within the scope of the appeal, I will record that the Appellant made a number of further points. He told me he does not recognise the authority of WMC. He says he should have been asked whether he did recognise the authority of that Court. He also told me that he never agreed for his Counsel (Mr Smith) to represent him at WMC. He also told me he does not accept the lawfulness of the electronic tag and pre-release security which were conditions of his bail. These points, and advancing them, do not assist him on this appeal and I will put them to one side. I will turn to the issue on which permission to appeal was granted.

The Appellant came to the UK in the context of difficulties in seeking to continue to practise in Romania as a lawyer. He was not a fugitive. He has developed roots in the UK. He brought his family here. He still supports his 15 and 9 year old children after their mother returned to Romania following his divorce from their mother, his ex-wife. They rely on that income. They would wish to come back to the UK at some stage in the future, with him here. The Appellant has committed no offences in Romania other than the ones to which the ExAW relates. He has no offences in the UK. He has been industrious here. He embarked on studies and entered into significant student debt. He has a substantial worthwhile life in the UK. The Judge specifically identified all of these points, within the Article 8 evaluation. The question is whether that evaluation was wrong as to its outcome, because relevant features should have been weighed so significantly differently.

The points which underpinned the grant of permission to appeal (§2 above) in essence relate to the nature and seriousness of matters for which extradition is being sought, in the context of Article 8. The offences were originally considered worthy of a fine. But it was a fine imposed within a legal framework whereby default could trigger custody, as it did. The Appellant was found by the Judge to be “far from a rogue lawyer”, and part of the conduct for which his extradition is sought took place before the 1995 Supreme Court judgment. There is then the possible characterisation of him as a conscientious objector to regulation of the Romanian bar seen as undue government “interference” with “independence” of the Bar. That characterisation was not, however, substantiated at the hearing of the appeal. The “independence” which the Appellant continues to protest is what I have taken time to explain, seen in his “fundamental” ECHR points. He says he – and anyone else – ought to be able to act for clients, giving legal assistance. That would be armed with his 2002 diploma in law, or for that matter without it. It would be as a member of UNBR 2004, or for that matter without belonging or being subject to any bar association or regulatory organisation. His ‘principled position’ is that he does not, in truth, recognise any ‘interference’. He does not recognise the Strasbourg Court’s rejection of Mr Bota’s Article 11 claim. He does not recognise the Romanian Supreme Court’s 2015 judgment. He had an opportunity to make his points to the Romanian courts. He has continued to try to have the conviction and sentence reopened (refused on 13.9.21) and the sentence commuted back to a fine (refused on 6.2.23). He was in a position to argue, and to evidence, that his December 2011 suspension had been overturned in 2012, which the Judge accepted in his favour as a principal finding of fact (§§4, 6 above).

I have seen and read all the translated judgments of the Romanian courts. He encountered a Mr Apostolescu at a court in February 2015. The Appellant was wearing lawyer’s robes. He drafted two documents for a fee and filed a power of attorney, but he did not attend a hearing. He encountered a Mr Serban at a court in January 2016. Again, he was wearing lawyer’s robes. He drafted a civil application for a fee and filed a power of attorney, but again he did not attend a hearing. That January 2016 incident was after the Romanian Supreme Court had given its ruling, and – in the words of POE1 – it “confirmed that to practise law in Romania you must take the enrolment procedure via UNBR 1883”. The Appellant did not – then or when sentenced or now – accept the legitimacy of that ruling or of the criminal Law which has been held to be enforceable. The Bucharest Fourth District Court (17.1.18) and Court of Appeal (8.5.18) considered it significant that the Appellant “did not go to court to represent and assist the parties”, which would have meant “the judge could find out that [his] activity was not lawful”. They thought it significant that the material acts committed in January 2016 “were carried out after the publication in the Official Gazette of [the Supreme Court] Decision No 15/2015 of 21 September 2015”.

A recognised feature of the Article 8 proportionality assessment, discussed in authorities to which the Judge referred, concerns the relative seriousness of the matters in respect of which extradition is being sought. However, as the Judge recognised, and as Farbey J made clear, having regard for Article 8 purposes to the relative seriousness of the offending in a conviction ExAW is not a forum for debating or revisiting questions of “guilt or innocence”. In my judgment, the Judge dealt fully and fairly with all the features of this case as relevant to Article 8 proportionality. He found in the Appellant’s favour – in the principal findings of fact – that the Appellant had joined a Bar Association, that there had been a degree of uncertainty prior to 12 September 2015, and that the Appellant was very far from being a rogue lawyer. But as the Judge also convincingly pointed out, the offending is “unattractive” and, importantly, the Appellant had continued to hold himself out and act as a lawyer even after the final determination by the Romanian Supreme Court in 2015. The relevant custodial sentence of 256 days was characterised by the Judge as significant although not particularly long. The Judge rightly recognised that it had originally been a fine. He also rightly emphasised that the extradition Court should assume that that sentence reflects the gravity of the offending in all the circumstances as seen by the requesting state court with all necessary knowledge; and should not seek to superimpose its own sentencing regime.

In circumstances of the Appellant’s full knowledge of the proceedings in Romania, and where there is no period of time unaccounted for – still less attributable to – any lack of appetite on the part of the Romanian authorities, the Judge was right to say that the extent to which the passage of time diminished the public interest in extradition was significantly tempered by the Appellant’s knowledge of the investigations and proceedings. It was also right, in that context, that the building of private and family life in the UK by the Appellant took place, knowing that he was at risk.

The Judge recognised all the features capable of weighing against extradition, including the private and family life implications of the 7 years in the UK, now 8 years. There is the Appellant’s good character and lack of offending. There is his industrious life, and studies, here; and what the Judge described as the substantial worthwhile life in the UK. There are the significant impacts of extradition for the Appellant and for the family (albeit in Romania) who rely on him for continued financial support; and the implications for his children coming to the UK in future, with him here. It was right to recognise, as the Judge did, that the family life was derived through financial support rather than the emotional and practical elements of living together in a stable household.

There were and are, as the Judge rightly recognised, the weighty public interests in upholding extradition requests and treaty obligations, ensuring that there are no safe havens from accountability under criminal justice systems making those requests and with whom the UK has those treaty obligations. There is the principle of mutual confidence and respect shown by the English extradition courts for the decisions of the Romanian judicial authorities. The Judge found that the public interest considerations in favour of extradition decisively outweighed all of the factors capable cumulatively of weighing against extradition. He said this was not a finely balanced case, but one in which the clear weight of factors falls favour of extradition. In my judgment, that conclusion and that outcome were not wrong. No relevant feature or features should have been weighed differently; still less significantly differently. Even applying a substitutionary approach and retaking the decision, I would find it to be correct. In these circumstances and for these reasons, I will dismiss the appeal.

I explained at the hearing and at the end of the draft judgment that, having circulated it as a confidential draft (18.6.24), I will be able to deal here with any consequential matter arising. Mr Swain submits that I should order that the Appellant’s appeal is dismissed pursuant to s.27(1)(b) of the 2003 Act. That is plainly correct, and I will make that Order. The Appellant has sent a series of emails. So far as matters properly consequential on the judgment, some of the emails clearly ask to be permitted to appeal to the Supreme Court (formerly the House of Lords). I have considered this, but there is no point of law of general public importance involved in my decision – it is a case-specific Article 8 evaluation applying well-established principles – and so I will refuse certification (s.32(4)(a) of the 2003 Act) and dismiss the associated application for leave to appeal (s.32(4)(b)).