Appeal judges refuse extradition

Businessman who suffered “flagrantly unfair” trial in Romania is freed

Since 2004, the European arrest warrant has allowed fast-track extradition between members of the European Union. Mutual recognition is based on the understanding that each EU state can trust the judicial processes of every other member state. But, as we saw last week, there are exceptions.

Gabriel Popoviciu

Gabriel Popoviciu, 61, a businessman, was convicted of bribery and abuse of power in his native Romania in 2016. The case related to the sale of land for the development of the Băneasa shopping centre in Bucharest. Popoviciu was sentenced to nine years’ imprisonment, reduced to seven years on appeal. In 2017 he was arrested in England and a district judge ordered his return to Romania. Last Friday, after hearing fresh evidence, the High Court ordered his release.

Edward Fitzgerald QC, for Popoviciu, argued that his client would suffer a “flagrant denial of justice” if sent back to serve his sentence in Romania. That has been defined by the European Court of Human Rights as “a breach of the principles of fair trial guaranteed by article 6 [of the human rights convention] which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article”.

If Popoviciu’s trial had been flagrantly unfair, then sending him back to serve the sentence passed would breach article 5, the right to liberty.

So the question for Lord Justice Holroyde, sitting in the High Court with Mr Justice Jay, was whether Popoviciu had “shown substantial grounds for believing there is a real risk that his imprisonment in Romania would involve a flagrant violation of his article 5 rights and, if so, whether the [Romanian court] has sufficiently answered that concern”.

His trial was conducted in Bucharest by Judge Ion-Tudoran Corneliu-Bogdan (“Tudoran” for short). After complaints against the judge, Tudoran was investigated for alleged abuse of his office. In June 2019, he asked for permission to retire with effect from October. After press reports about his unexplained wealth, he said he wanted to retire sooner, in August, forfeiting some of his pension rights. He was allowed to retire in September 2019 but a prosecutor was unable to interview Tudoran in October because, by then, the former judge was in a psychiatric hospital. Further attempts to investigate Tudoran proved unsuccessful but, despite that, Popoviciu was unable to get his conviction set aside in Romania.

At the appeal hearing in London, Popoviciu claimed that Tudoran had, for many years, “conducted himself in a wholly unjudicial manner, and has been guilty of corrupt acts” — in particular when dealing with two men called Pirvu and Becali. “A key feature of the relationship alleged between Judge Tudoran and Becali is the soliciting of bribes,” said Holroyde. “Another key feature is the participation of the two men in illegal gambling.”

Despite the fact that some of the defence evidence was unconvincing, Holroyde found

credible evidence of at least the following allegations against Judge Tudoran: he had a long-standing relationship with Pirvu, in the course of which he had improperly and corruptly assisted Pirvu in legal matters; he also had a relationship over a number of years with Pirvu’s friend Becali, in the course of which he had again provided improper and corrupt assistance with legal matters; he had participated in illegal gambling sessions with both those men; and he had received one bribe and solicited another.

The judge said:

I cannot conclude on the balance of probabilities that these allegations are true; but in all the circumstances of this very unusual case, I accept that they may well be.

Moreover, the Romanian court had “plainly failed to put forward any evidence or information which dispels these concerns”. An investigation would have been expected, said Holroyde. “I also agree with Mr Fitzgerald that it is a surprising aspect of the Romanian criminal justice system if the late discovery of an undisclosed friendly relationship between a trial judge and an important prosecution witness ‘would not constitute a reason to review a final decision’.”

Holroyde concluded:

It is important to note that it is a particular, and unusual, feature of this case that the evidence does not show merely a relationship of friendship between judge and witness. It provides substantial grounds for believing that the relationship was also one which involved improper, corrupt and criminal conduct by a serving judge.

The evidence shows a real risk that the appellant suffered an extreme example of a lack of judicial impartiality, such that there can be no question as to consequences for the fairness of the trial. If there was such a relationship, Judge Tudoran clearly should not have presided over a trial in which Becali was the complainant and an important prosecution witness; but he did not recuse himself, and there was no disclosure to the parties even of the fact that the two men knew one another.

Comment

It’s easy to say that if this is the standard of justice in a country that has been an EU member since 2007, the UK is better off without the European arrest warrant. On the other hand Popoviciu’s extradition (strictly speaking, “surrender”) was ordered before the UK left the EU and the appeal result would have been the same regardless of Brexit.

That said, nobody could be sure that the appeal judges would find in Popoviciu’s favour: one question that troubled them was whether simple breaches of article 6 could be added together to produce a flagrant breach.

The real lesson of this case is a more chastening one: you don’t have to travel far to find judicial behaviour that would be unthinkable in the United Kingdom. It should also be unthinkable in the European Union.

Update 25 July 2023: Fitzgerald’s chambers have announced that Popoviciu has won his battle against extradition to Romania, following a hearing in May.

They said the UK Supreme Court had discharged him and would deliver its judgment on the appeal in due course.