Merticariu v Judecatoria Arad, Romania [2024] UKSC 10

Mr Merticariu was convicted in absentia in Romania for burglary. A European Arrest Warrant sought his extradition. The Supreme Court held that section 20(5) of the Extradition Act 2003 requires an actual entitlement to a retrial, not merely a right to apply for one contingent on further findings by the requesting state.

Facts

Ionut-Bogdan Merticariu was convicted in Romania in his absence for a burglary committed in 2016. A European Arrest Warrant (EAW) was issued seeking his surrender to serve his sentence. The appellant was arrested in the UK in September 2019. The EAW indicated the appellant was not present at his trial but did not tick box 3.4 confirming a right to retrial. The issuing judicial authority provided only that the appellant could ‘request’ reopening of proceedings under Article 466 of the Romanian Code of Criminal Procedure.

Procedural History

District Judge Ezzat found the appellant was not convicted in his presence and had not deliberately absented himself from trial, but held he had a right to retrial under section 20(5) of the Extradition Act 2003 and ordered extradition. On appeal, Chamberlain J dismissed the appeal, considering himself bound by judicial comity to follow BP v Romania. The appellant appealed to the Supreme Court on a certified point of law.

Issues

The central issue was the proper construction of section 20(5) of the Extradition Act 2003: does it require an entitlement to a retrial, or is it sufficient that the requested person has a right to apply for a retrial contingent upon a finding by the requesting state’s court that the person was not deliberately absent?

Judgment

The Supreme Court unanimously allowed the appeal. Lord Stephens and Lord Burnett (with whom Lord Hodge, Lord Sales and Lord Burrows agreed) delivered the judgment.

We consider that the natural and ordinary meaning of the words in section 20(5) are plain. The judge must decide whether the requested person is ‘entitled’ to a retrial or (on appeal) to a review amounting to a retrial. Section 20(5) does not require the judge to decide a different question, namely whether the requested person is entitled to apply for a retrial.

The Court held that the answer to the question in section 20(5) cannot be ‘perhaps’ or ‘in certain circumstances’; an entitlement to a retrial cannot be contingent on the requesting state’s court making a factual finding about the person’s presence or deliberate absence from trial.

We agree that a requested person may have the right to a retrial even if the domestic law of the requesting state requires him to take ‘procedural steps’ to invoke the right. But if the entitlement to a retrial is contingent on a finding that the requested person was not deliberately absent from his trial, the proceedings leading to that finding would not naturally be referred to as a ‘procedural step’. Rather, those proceedings in the requesting state should be regarded as involving a decision on a substantive issue.

The Court also confirmed that this construction was consistent with the UK’s obligations under the Amended Framework Decision and Article 6 of the European Convention on Human Rights.

Application to Present Case

The issuing judicial authority did not tick box 3.4 confirming entitlement to retrial, and its further information stated only that the appellant could ‘request’ reopening of proceedings. This did not amount to evidence of an entitlement to a retrial. The Court concluded:

Accordingly, we consider that there is no evidence from the issuing judicial authority in the EAW or in the further information that the appellant would be entitled to a retrial on his surrender to Romania.

Implications

This judgment clarifies the requirements of section 20(5) of the Extradition Act 2003, overruling BP v Romania and correcting Zeqaj v Albania on this point. Issuing judicial authorities must now provide clear confirmation that a requested person has an unconditional right to a retrial (subject only to procedural steps), rather than merely a right to apply for one. The decision reinforces the protection of the right to be present at trial under Article 6 ECHR and ensures alignment with the Amended Framework Decision following its amendments in 2009.

Verdict: Appeal allowed. The appellant’s extradition order was quashed and his discharge was ordered pursuant to section 20(7) of the Extradition Act 2003.

Source: Merticariu v Judecatoria Arad, Romania [2024] UKSC 10