Raul Lupsa v Timis Court, Romania

This is an appeal under section 26 of the Extradition Act 2003 (“the 2003 Act”) against the order of District Judge Curtis, sitting at Westminster Magistrates’ Court, dated 16 August 2024, ordering the extradition of the Appellant to Romania, pursuant to a conviction‑based European Arrest Warrant (“EAW”). The Appellant seeks to challenge that decision on the single ground for which permission was granted: namely that the District Judge erred in concluding under section 20 of the 2003 Act that he had deliberately absented himself from trial.

The appeal raises questions concerning the interpretation of deliberate absence under section 20 of the 2003 Act, in light of Bertino v Italy [2024] UKSC 9, Merticariu v Romania [2024] UKSC 10, and earlier authorities such as Cretu v Suceava [2016] EWHC 353 (Admin), and the CJEU’s ruling in Tupikas (C‑270/17 PPU). These cases consider, amongst other things, the extent to which the executing judicial authority must (or must not) interrogate the factual circumstances surrounding the foreign trial, the degree of knowledge required for deliberate absence, and the role of mutual trust in extradition.

The Appellant was arrested on 18 November 2023 in execution of an EAW issued on 12 August 2022 and certified by the National Crime Agency on 14 September 2023. He first appeared at Westminster Magistrates’ Court on 20 November 2023, declined to consent to extradition, and remains on conditional bail following a successful bail application on 24 November 2023.

The extradition hearing took place on 22 July 2024. Judgment was handed down on 16 August 2024, ordering extradition. The Appellant filed a notice of appeal within time. By order of Mrs Justice McGown on 15 April 2025, permission to appeal was refused. Permission was subsequently granted at an oral renewal hearing on 24 July 2025.

The EAW seeks the Appellant’s surrender to serve the outstanding portion of a five‑year sentence imposed on 14 March 2022 by the Timis County Court for supplying 20 MDMA tablets in Timisoara on 6 December 2019. These tablets are classified as “high risk drugs” for the purpose of Romanian criminal proceedings. The offence appears to have been committed with others. The Appellant’s appeal against conviction and sentence was dismissed on 7 July 2022, rendering the conviction final.

The appeal papers contain a statement, notarised in London and dated 7 May 2022, in which the Appellant accepted he had committed the offences and sought to appeal by a simplified procedure, agreeing to carry out community service. In a further document entitled “Statement of Grounds of Appeal” dated 26 May 2022, the Appellant asked to reopen his case so that he could enter a guilty plea and receive a discount to his sentence.

Box (d) of the EAW records that the Appellant was not personally present at the trial but was aware of the scheduled proceedings, had mandated a legal counsellor (appointed by the state) who defended him, and was not entitled to a retrial. Further information dated 7 December 2023 provides additional detail:

The District Judge set out, carefully and at some length, the evidence that the Appellant had given on contested issues of fact, including the following:

“31.

The RP was then cross-examined by Miss Beavon. He was initially asked about the extent of his knowledge of the proceedings. In his first proof he detailed how he was aware through his mother that the police were looking for him, she had provided them with his mobile number, he accepted that contact had been established via WhatsApp, he had subsequently provided an email address. It was put to him the final WhatsApp message on the 6th April 2021 timed at 10.23 from the prosecutor [ Diicot ] had included… “check your email and proceed according to the instructions, looking for your reply”. It was put to the RP that was the email to inform him he was an accused person and that it contained the summons to trial together with his rights and obligations including an obligation to notify of any change of address. The RP stated he had not changed his address and was living in the UK at the time. The RP confirmed he hadn’t told the authorities he had left Romania.

32.

It was put to the RP his court appointed lawyer had messaged him on the 18th January 2022 advising him of the outstanding trial, he denied he had been made aware by her although he said she had advised him of the “penultimate” hearing she had not the “last” one. He confirmed he hadn’t contacted her to prepare for the proceedings and hadn’t instructed her, he denied he was trying to avoid the proceedings.

33.

The RP confirmed after conviction [ within the time limit ] he had gone on to instruct his own lawyer and she had represented him at the appeal hearing. The documents provided by the JA he accepted indicated his guilt and that he had made representations to be dealt with leniently, he said he had hoped for a suspended sentence. He confirmed his parents had informed him the appeal had been unsuccessful he was aware there was a 5 yr sentence to serve but only while living in the UK.

34.

It was put to the RP that he had opened the email dated 4th November 2021 at 22.52 pm, he confirmed he had but was unable to open the attachment, it had landed in his spam folder, he accepted the email had been received but only to that extent. It was put to him that in his proof he had said he thought it had been a scam and had deleted it yet there were ongoing proceedings he was aware of , he had a court appointed lawyer, it looked like it was from the Romanian authorities and yet having opened the email he had done nothing further, no checks made to see if the email was legitimate in fact tellingly no further contact made with the authorities. He confirmed he knew it was from the authorities, but it was in his spam folder and he didn’t think it was genuine. In his second proof he had confirmed he had not changed his mobile number; it was the number given to the authorities.

35.

It was put to the RP that in his second proof he had confirmed he had not changed his mobile number, it was the number given to the authorities and yet during the authorities’ efforts to contact him a woman had answered stating she didn’t know the RP, was that it was put someone acting on his behalf, he said it wasn’t. It was finally, put to the RP that he had deleted the email containing the summons as an attempt to avoid proceedings which he denied, he confirmed there had been no attempt to contact the authorities thereafter.”

The District Judge’s conclusions in relation to the arguments raised under section 20 of the 2003 Act were:

“61.

I did not find the RP to be a convincing or believable witness, his evidence about his knowledge of proceedings simply didn’t add up. He had initially engaged with the JA, his mother [ who is a qualified doctor] had provided his mobile number to the authorities and contact had been established on several occasions, there is detail as to the communications within the evidence. The RP provided his email address that was similarly used for communication. The crucial email detailing his duties and attaching the minutes was opened as put to him in evidence. I did not believe him when he said he couldn’t open the attachment, quite apart from not believing him that the email had gone to his spam/junk folder it is a horrible coincidence for him that from that date onwards there was no communication from him, no attempt to check the voracity of that email There was no issue taken with the validity of the mobile number provided, it connected and he communicated on it, once the stage in proceedings had arrived that made him aware proceedings were commencing he put someone up [ a woman ] to suggest that number had nothing to do with him. As I stated [ante] I simply did not find his evidence believable, to my mind he took extreme steps to avoid the trial process, his acceptance in evidence that he had communicated with his state appointed lawyer pretrial only confirms in my mind he deliberately absented himself from the trial process. This is further supported by a timely appeal with his own instructed lawyer very shortly after the trial concluded as if he was waiting for that stage to be completed before acting.

62.

I am accordingly satisfied s20 is complied with as the JA submit, the RP deliberately absented himself from the trial in accordance with s 20 (4) I move on to consider s 21.”

The Appellant argues that the District Judge’s central conclusion, that he took “extreme steps to avoid the trial process”, was not supported by the evidence. He says that the District Judge failed to consider matters which are inconsistent with deliberate evasion, which include:

The Appellant’s evidence was that he never received any summonses, that emails sent by the authorities were filtered as spam or had attachments that could not be opened, and that he believed at the time that the email attaching the summons was a “scam”. He argues that the District Judge misunderstood the evidence since an email marked as “read” does not prove that its attachments were accessed or understood. His explanation, he argues, better fits the documentary record than the District Judge’s conclusion that he was intentionally avoiding proceedings.

The Appellant submits that the District Judge misinterpreted or overlooked evidence concerning his communications with the court and wrongly concluded that there was “no communication” after 2021. The email of 20 April 2022, it is said, shows otherwise.

The Appellant contends that the District Judge misdirected himself in law by applying a subjective assessment of credibility rather than the objective test to the criminal standard required by the Supreme Court in Bertino. Under Bertino:

He argues that there was no warning from the Romanian authorities that non-attendance could lead to trial in absence. The only stated consequence was a reference to the possible issue of a warrant; insufficient, he argues, to constitute the warning required by Bertino.

The Appellant submits that the District Judge failed to identify the correct legal question, namely whether the Respondent had proved beyond reasonable doubt that he had deliberately absented himself and instead embarked on an impressionistic evaluation of his actions and motives, contrary to authority.

In addition, the Appellant argues that the District Judge wrongly proceeded on the basis that he had mandated his state appointed Romanian lawyer to act for him at trial. There is, he submits, no evidence that he ever instructed this lawyer, and the Romanian further information does not assert that he had done so. His own evidence was that he received the first message from the lawyer only on 18 January 2022 and never had an opportunity to discuss the case. The District Judge’s rejection of his credibility does not, it is argued, fill this evidential gap.

Thus, it is argued, the Respondent cannot make good Box (d) of the EAW, which states that he gave a mandate to counsel.

In summary, therefore, the Appellant submits that:

Accordingly, the Appellant invites the Court to allow the appeal, quash the extradition order, and order his discharge.

The Respondent submits that the District Judge’s conclusions were properly open to him and are consistent with the findings already made by the Romanian courts. The Appellant knew of the charges, knew he would be brought to trial, and deliberately avoided service and contact with the authorities.

The Respondent argues that the Appellant’s post-conviction attempt to reopen proceedings was aimed solely at obtaining a sentencing benefit rather than indicating any lack of knowledge of the proceedings which led to his conviction. Applying Merticariu and Bertino, the Respondent contends that the EAW contains the necessary statements required by Article 4a of the Framework Decision.

The Respondent submits that the District Judge was correct to conclude that the requirements of section 20 of the 2003 Act were satisfied and that the Appellant deliberately absented himself from his trial. Reliance is placed on the contents of the EAW and the further information provided on 7 December 2023, which set out a clear chronology of the Appellant’s engagement with the Romanian authorities.

The Respondent submits that the District Judge was plainly entitled to conclude that the Appellant deliberately absented himself. The Judicial Authority had made extensive efforts to notify him: WhatsApp messaging, email service, contact through his mother, summonses to his address and phone, and service of minutes informing him of his rights and obligations. The Appellant opened the summons email, responded to earlier communications, failed to update his address, ceased communication abruptly, and allowed the phone call (to his number) to be diverted to a person who denied knowing him.

The Respondent further submits that the Appellant was represented by a court appointed lawyer at first instance and subsequently instructed his own lawyer for the appeal, which he pursued promptly after conviction. The Appellant’s notarial statement filed in those appeal proceedings, in which he admitted the offence and requested that he be sentenced under the simplified procedure, demonstrates awareness of the proceedings and contradicts the case advanced and rejected by the District Judge at the extradition hearing. On this basis, the Respondent contends that the Appellant’s conduct, engagement followed by total disengagement when trial approached, amounted to deliberate avoidance rather than inadvertence or misunderstanding. It submits that this was a classic case of evasion falling within the exceptional category recognised in Bertino, where an explicit warning is not required.

Section 27 of the 2003 Act provides that on an appeal against an extradition order under section 26, the appeal may be allowed if the conditions in section 27(3) are satisfied. The conditions are that the appropriate judge ought to have decided a question before them at the extradition hearing differently and that if they had decided the question in that way, they would have been required to order the person’s discharge.

Section 20 of the 2003 Act requires the Court to determine:

Following the United Kingdom’s withdrawal from the European Union, extradition between the UK and EU Member States is now governed by Part Three of the Trade and Cooperation Agreement (“TCA”) which is referred to on the face of the present EAW. However, it was not suggested in argument that this produced a different approach to the material questions of interpretation which had previously been considered in cases to which the Articles of the Council Framework Decision and the Amended Framework Decision applied.

In Cretu at [35] & [36], the Divisional Court held that Article 4a’s requirements, if set out in the EAW, normally resolve the s.20 issue:

“34 In my judgment, when read in the light of article 4a section 20 of the 2003 Act, by applying a Pupino conforming interpretation, should be interpreted as follows: (i) ‘‘Trial’’ in section 20(3) of the 2003 Act must be read as meaning ‘‘trial which resulted in the decision’’ in conformity with article 4a(1)(a)(i). That suggests an event with a ‘‘scheduled date and place’’ and is not referring to a general prosecution process, Mitting J was right to foreshadow this in Bicioc’s case. (ii) An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a(1)(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 of the Convention. (iii) An accused who has instructed (‘‘mandated’’) a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however he may have become aware of it. (iv) The question whether an accused is entitled to a retrial or a review amounting to a retrial for the purposes of section 20(5), is to be determined by reference to article 4a(1)(d). (v) Whilst, by virtue of section 206 of the 2003 Act, it remains for the requesting state to satisfy the court conducting the extradition hearing in the United Kingdom to the criminal standard that one (or more) of the four exceptions found in article 4a applies, the burden of proof will be discharged to the requisite standard if the information required by article 4a is set out in the EAW

35 It will not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. The issue at the extradition hearing will be whether the EAW contains the necessary statement. Article 4a is drafted to require surrender if the EAW states that the person, in accordance with the procedural law of the issuing member state, falls within one of the four exceptions. It does not contemplate that the executing state will conduct an independent investigation into those matters. That is not surprising. The EAW system is based on mutual trust and confidence. Article 1 of the 2009 Framework Decision identifies improvement in mutual recognition of judicial decisions as one of its aims. It also contemplates surrender occurring very shortly after an EAW is issued and certified. To explore all the underlying facts would generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision. Article 4a provides additional procedural safeguards for a requested person beyond the provision it replaced in the original version of the Framework Decision, but it does not call for one member state in any given case to explore the minutiae of what has occurred in the requesting member state or to receive evidence about whether the statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of the proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the Convention. It might require the court in one state to rule on the meaning of the law in the other state. It would entail an examination of factual matters in this jurisdiction, on which the foreign court had already come to conclusions”

Merticariu confirms that the executing court ordinarily relies on the statements in the EAW. Where Box (d) provides the Article 4a assurances, the court should not undertake a detailed evidential inquiry unless the warrant is ambiguous, contradictory, or suggestive of abuse:

“24.

Second, paragraph (1) of article 4a contemplates that the exceptions in article 4a(1)(a)-(d) will be established by statements in the EAW itself. Paragraph (1) does not envisage a general evidential inquiry into those matters, and it does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statement in the EAW is accurate. The requesting judicial authority is expected to convey the relevant information in the EAW itself, including information relating to absence from trial and the possibility of retrial, which is necessary to determine whether the executing judicial authority has the power to refuse to execute the warrant under article 4a. If the information set out by the requesting judicial authority in the EAW meets the requirements of article 4a that will provide the evidence upon which the executing judicial authority will act. If a requested person is surrendered on what turns out to be a mistaken factual assertion contained in the EAW relating to article 4a, then they will have the protections afforded by domestic, EU and Convention law in that jurisdiction: Cretu at paras 4, 24, 32, 35, 36 and 42.

In Bertino, the Supreme Court held that “deliberately absented himself” in section 20(3) of the 2003 Act must be interpreted consistently with Article 6 of the European Convention on Human Rights (“ECHR”) and Article 4a of the Framework Decision. A person is deliberately absent only if he has “unequivocally waived his right to be present,” and such waiver must ordinarily be: “knowing, voluntary, and intelligent.”

Whilst waiver will “usually require the defendant to be warned in one way or another” that non-attendance may result in a trial in his absence, the Supreme Court emphasised that a warning is not always essential [58]:

“As we have already indicated, in Sejdovic at para 99 (see para 38 above), on which Miss Malcolm KC relied, the court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg Court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in absence. It may be that the key to the question is in the examples given in Sejdovic at para 99. The court recognised the possibility that the facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option

The Court referred [39] to the decision of the Luxembourg Court in Criminal Proceedings against IR (Case C-569/20) EU:C:2022:401 (judgment 19 May 2022) as explaining the requirements which were to be met if there was to be a finding of implied waiver:

“It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that the person may . . . be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time by means of the document referred to in paragraph 41 of the present judgement is thus covered by article 8(2) of the Directive.”

Waiver may therefore be unequivocal where the circumstances reveal:

The core principles set out by the Supreme Court in Bertino cover the same ground and may be similarly distilled:

The District Judge, in my view, accurately summarised the legal test under section 20 and, in substance, applied the principles set out in Bertino. His reference to the Appellant having taken “extreme steps” to avoid the trial process was clearly invoking the language of Bertino (at paragraph 58). He asked whether the Appellant was aware of the proceedings and deliberately chose not to engage. His reasoning was firmly rooted in objective evidence, not speculation. He heard evidence from the Appellant and was entitled to reach a conclusion as to whether or not he accepted the Appellant’s explanation as to why, for example, having received an email (which was not in dispute) he claimed he had not opened and read the attachment. That is not to be characterised as using an adverse credibility finding to fill an evidential vacuum; the evidence that the email had been sent, received and opened was before the District Judge.

The requirements and principles set out in Bertino were, as in any extradition case, to be applied to a factual matrix. The facts of the present case are in stark contrast to those in Bertino.

In Bertino, the defendant did not know a prosecution had been initiated, had not been informed of any charges, and had no knowledge of the date or place of trial, making it impossible to infer deliberate absence. By contrast, in the present case:

These facts place the Appellant firmly within the category of actual awareness, far removed from Bertino, where the defendant only knew of an old police investigation but not of any prosecution. The Appellant thus had significantly more knowledge than the defendant in Bertino.

In Bertino the Supreme Court held that only extreme behaviour, such as evading arrest, publicly rejecting summonses, or deliberately placing oneself beyond the jurisdiction, can substitute for a formal warning. In this case the District Judge found:

The District Judge expressly rejected the Appellant’s explanation that he thought the email was a scam. He found the Appellant “not a convincing or believable witness”, noting the implausibility of opening an email and then taking no steps to verify it in circumstances where he knew of the investigation. He also found the post-conviction appeal inconsistent with ignorance of the proceedings.

The District Judge’s adverse credibility findings were unimpeachable: they were reasoned, supported by evidence, and well within his fact-finding discretion. Applying Bertino, the question is whether the Appellant unequivocally, knowingly and intelligently waived his right to be present. A formal warning is usually required, but not invariably. In cases of deliberate evasion, where a person knows proceedings are active and then purposefully avoids contact, waiver may be inferred. The Appellant’s conduct corresponds to those exceptional circumstances. He knew of the investigation, was aware proceedings had commenced, received summons information, and then disengaged until after conviction. In such circumstances, a warning is not indispensable. The Appellant’s conduct made the consequences of non‑attendance reasonably foreseeable. He knowingly placed himself beyond the reach of justice. This is precisely the kind of fact pattern envisaged in Sejdovic and discussed in Bertino where waiver can be inferred and regarded as unequivocal.

The Appellant’s submission that the District Judge ignored his email of 20 April 2022 is simply not made out. That email formed part of the material before the court and was expressly reflected in the evidence relied upon, including the fact that the appellant said he had discovered the proceedings via the Romanian Courts Portal and thereafter sought an adjournment and pursued an appeal. The District Judge was therefore aware of, and implicitly considered, the substance of the email. His conclusion was not that the email could be ignored, but that it did not undermine the broader evidential picture, including the Appellant’s earlier engagement with the authorities, his provision of contact details, his communication with his court appointed lawyer, and his prompt post-conviction appeal. The complaint is thus not one of oversight, but of disagreement with the weight the judge was entitled to give to that material. In any event the original trial concluded on 14 March 2022. The observations made by the District Judge are, in context, about the lack of communication with the court prior to trial and following the email opened by the Appellant on 4 November 2021. Thus, at paragraph 61 the District Judge comments:

“I did not believe him when he said he couldn’t open the attachment, quite apart from not believing him that the email had gone to his spam/junk folder it is a horrible coincidence for him that from that date onwards there was no communication from him, no attempt to check the voracity of that email.”

This was also the way in which the Appellant appears to have approached the chronology of events as recorded at paragraph 35 of the District Judge’s judgment:

“It was finally, put to the RP that he had deleted the email containing the summons as an attempt to avoid proceedings which he denied, he confirmed there had been no attempt to contact the authorities thereafter.” (My emphasis)

Mr Henley further submitted on behalf of the Appellant that there was no evidence from which the District Judge could properly conclude, contrary to the Appellant’s own evidence, that the Court appointed lawyer had been mandated by the Appellant to represent him at trial. In so far as the Respondent argued that this was established on the face of the warrant Mr Henley argued that the EAW was deficient.

Box (d)(3.2) of the EAW is ticked and says;

“being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial and was indeed defended by that counsellor at the trial.”

Where item 3.2 has been ticked Box (d)(4) then says:

“please provide relevant information regarding the manner in which the relevant condition has been satisfied”

The information provided in response is:

“The defendant LUPSA RAUL was represented by the publicly assigned lawyer Guga Cristina, from the Timis Lawyers Bar, at the trial of the case in the first instance, and this publicly assigned lawyer filed the appeal for the defendant.

The defendant LUPSA RAUL hired his chosen lawyer, Iedu Adina Gabriela, to represent him in the appeal proceedings before Timisoara Court of Appeal. The defendant’s chosen lawyer has filed for the trial date of 26th May 2022 the grounds of appeal and a statement in which he admits the committed deeds, agrees that the trial should be managed in a simplified procedure and agrees to perform unpaid community service.”

Mr Henley submitted that mere contact with, or passive representation by, a state appointed lawyer did not amount to a knowing and intelligent waiver of the Appellant’s right to be present; accordingly, the statements in Box (d)(3.2) and Box (d)(4) could not properly found a conclusion that he had deliberately absented himself or that he was not entitled to a retrial. He pointed out that the information given in Box (d)(4) makes no reference to a mandate being given in relation to the initial trial but accepted that the reference to the Appellant hiring his chosen lawyer for appeal did amount to a mandate. I should add that although the District Judge conducted an analysis of whether the relevant date for the purpose of section 20 was the date of the trial or the appeal, citing the decision of the CJEU in Tupikas, he concluded that this made no difference on the facts.

The Appellant’s submission on the issue of mandate fails, in my view, for three related reasons.

In short, the Appellant’s complaint seeks to relitigate the correctness of the Romanian court’s classification of his status in the proceedings. That is not the function of the executing court, and there is no ambiguity or inconsistency in Box (d) that would justify going behind the EAW. Romanian law has also determined that the Appellant did not qualify for a retrial. Under Merticariu, the High Court must respect that conclusion in the absence of ambiguity.

I conclude that the District Judge was not in error in finding that the Appellant deliberately absented himself from his trial. He should not have decided that question differently. The requirements of section 20 of the 2003 Act were properly satisfied. Accordingly, the appeal is dismissed, and the extradition order confirmed.