This seminar reviewed the recent Supreme Court decision of Popoviciu v Romania, 8 November 2023, and in particular the impact this case may have on extradition cases raising Article 5 or Article 6.

Background
Mr Popoviciu’s extradition had been sought after being convicted in Romania of bribery and abuseofoffice offences. He argued that his trial in Romania had been flagrantly unfair and that the Romanian judge had an improper and corrupt relationship with a key prosecution witness. The High Court quashed the extradition order made by the District Judge. This was upheld by the Supreme Court.

The decision
The Supreme Court held that where a requested person argues that extradition would violate ECHR Article 5 because Article 6 rights had been breached during the trial which had led to conviction, it must be proved that the trial had been flagrantly unfair on the balance of probabilities, not merely that substantial grounds existed that there was a real risk the trial had been unfair.

Discussion
In reaching its decision, however, the Court recognised that the absence of an effective remedy by way of an appeal against a flagrantly unfair trial may itself constitute a breach of Article 5 and a ground upon which extradition could be refused.

The decision represents a change in the law with implications for future cases. In particular, it underlines the need for a clear and focussed litigation strategy.

Mr Popoviciu was represented by Edward Fitzgerald KC, Peter Caldwell and Graeme Hall, who discussed the case and its implications.

Edward Fitzgerald KC, Ben Cooper KC, Mary Westcott and Graeme Hall also represent the two Appellants in the Supreme Court cases of Bertino v Italy & Merticariu v Romania (hearings 28 and 29 November 2023) concerning convictions in absence.