The following is a guest post by Torquil Dick-Erikson. For the last 35 years Torquil has specialised as a legal journalist in comparative criminal procedure.
Alexander Adamescu is to be extradited from the UK to Romania, where he is wanted for prosecution on an accusation that he, together with his late father Dan Adamescu, bribed judges in Romania in 2013 in a case concerning a construction company. Mr Alexander Adamescu was living in England at the time of the alleged bribery.
He has asserted that the real reason was that his father controlled an opposition newspaper, Romania Libera, and that the accusations against them were politically motivated, by the then Romanian government. And that the Romanian prosecution service, working closely with the re-labelled but not-so-ex Securitate (Ceausescu’s secret police, analogous to Russia’s KGB), is using its judicial powers of violent coercion as a political battering-ram to bludgeon the opposition into silence. The prosecution service was headed by Ms Laura Kovesi – who has since been selected by Brussels as the EU’s supremo European Public Prosecutor.
Ms Kovesi wrote to the UK court hearing the extradition request, to deny these allegations.
Whether or not the Adamescus gave money to Romanian judges is not the point at issue here in Britain. Indeed Adamescu's father had good arguments to show he was not guilty, but the unfair trial he received did not allow him to argue the case properly.
This case is important because it shows the cavalier manner in which two UK courts disregarded the compelling evidence that his rights to a fair trial and to humane prison conditions will be at serious risk if he is extradited. They have manifested a posture of supine acceptance of whatever a foreign Prosecutor may say. This places anyone in Britain at risk of arbitrary arrest and lengthy detention abroad on the mere say-so of any EU Prosecutor.
Mr Adamescu argued that he would not be getting a fair trial and that the prison conditions in Romania were inhumane, so that his fundamental rights under the ECHR would be violated.
District Judge John Zani swept aside these objections and ruled that he should be extradited. The High Court upheld this decision, and denied Mr Adamescu permission to appeal to the Supreme Court.
The heart of the reasoning behind DJ Zani’s decision can be found in this para. of his judgement:
328: I return to one of the basic principles of extradition. It is a rebuttable presumption that requests are made in good faith and that, absent compelling evidence to the contrary, assertions made by or on behalf of requesting Judicial Authorities should be accepted by the requested State. The onus is on the defence to rebut the presumption with compelling evidence. I have not received such evidence in this case.(*)
We should note:
- There surely does exist “compelling evidence”, in the form of what amounts to a deathbed, witnessed, written statement from the requested person’s own father, that, on the same charge, handled by the same prosecution service, as his own, he did not receive a fair trial, was kept in horrendous prison conditions, and was refused necessary medical treatment. This occasioned his death in custody. This statement is not mentioned in the judgement, which completely ignores this compelling piece of evidence (**). I give some details of the statement below.
- Mr Zani clearly preferred to believe the assertions presented by Ms Laura Kovesi, and those of other Romanian authorities that after extradition Alexander Adamescu would be accommodated in fair and humane prison conditions, rather than those of Alexander’s father, the late Dan Adamescu.
- Mr Zani states in para. 328 that “it is a rebuttable presumption” that UK courts must in any case believe whatever assertions might be made by a “Judicial Authority” in a “requesting State” (he does not qualify this, but one must suppose he is referring only to EU states). However by sweeping aside, indeed under the carpet, thus wilfully airbrushing out of the picture, the powerful and compelling evidence of Alexander Adamescu’s late father, he shows that for him it is actually not a “rebuttable” presumption, but an irrefutable presumption – i.e. a dogma, an article of faith. He, a Judge in her Majesty’s Court, in effect is accepting the assertions of a foreign Prosecutor as Holy Writ.
- Moreover. Mr Zani’s statement in para. 328 effectively reverses the age-old principle in UK law of the Presumption of Innocence. He says here that the “onus is on the defence to rebut” with “compelling evidence” the assertions advanced by the “Judicial” Authority of the requesting State. In this case the assertions are advanced by the Romanian Prosecutor, Ms Laura Kovesi. For our British way of thinking a Prosecutor is not a “Judicial Authority”, but a mere party to a case, on a par with the Defence.
- Now the idea of a “European Warrant for Arrest” was first mooted in the EU’s Corpus Juris project for a single uniform embryo criminal code for all Europe in 1997, and it included the possibility for a European Public Prosecutor to “instruct” a national judge to issue a Warrant. When Lord Hope of Craighead was chairing the Lords’ Committee which examined (and ultimately rejected) Corpus Juris, he questioned Professor John Spencer QC of Cambridge University, the British co-author of the project, on this point. Professor Spencer admitted that the idea of a Prosecutor giving instructions to a judge was a “misunderstanding” arising from a mis-translation from the French original. He said “Certainly we meant coercive acts of all sorts to be subject to the authorisation, after weighing the matter up, of the judge in the national state” (HL62, Session 1998-99, 9th Report, Minutes of evidence, p. 8, para 36). Nevertheless one part of the Corpus Juris project that was accepted by the UK was the European Warrant for Arrest, and it was accepted, and incorporated into our Statute Book in the very form that its originator had disowned as a mis-translation.
- In the well-known case of the Swedish Prosecution Service against Julian Assange, Dinah Rose QC, defending, raised this very point with the Supreme Court, which ruled that for the purposes of the European Arrest Warrant legislation, a continental “Prosecution Authority” must be accepted by UK courts as a “Judicial Authority”.
- This is surely a startling departure from a basic principle of British justice, that a judge must accept whatever assertions are made by a Prosecutor (and a foreign prosecutor, working to a different system from ours), and that the “onus is on the defence” to provide “compelling evidence” to the contrary.
- Possibly to be explained by the statement from the Home Office on Dec 1st last that there are “no plans for extradition to EU States to be made dependent on a UK court ruling that there is a prima facie case to answer”?
- We must conclude that underlying these somewhat bizarre statements is the principle of “Mutual confidence and recognition” by all EU states covered by the Framework Decision, as to the fairness and justice of each other’s judicial decisions, which has to be presumed by UK courts. This can only be meaningful if in reality each member State does ensure fair trials for each defendant and humane prison conditions.
- Dan Adamescu’s testimony rebuts quite compellingly any such presumption. In the case of Romania and in particular its treatment of Alexander’s father, unfairly tried and convicted on the self-same accusation, this presumption is shown clearly to be based on a false premise.
- Evidence from other extraditees that “Romania has not abided by assurances previously given to the UK authorities” is dismissed by Mr Zani who chooses to give greater weight to the denial by the Romanian “Judicial” (i.e. Prosecutory) Authority, doubtless in obeisance to the doctrine of “mutual confidence and recognition” which under current legislation is evidently thought by him to override all other considerations, especially since our Supreme Court ruled that an EU Prosecution Authority has Judicial status.
The High Court compounded and confirmed this view and the consequent injustice wrought by Mr Zani. It did mention the statement by Dan Adamescu, and here is how it somewhat airily dismissed it:
171. We do not see any force in [defence counsel] Mr Keith QC’s criticism that the District Judge [Zani] wrongly ignored “the obvious and direct comparator to the appellant’s position and likely treatment”, namely Mr Adamescu senior. We understand of course why the appellant is distressed by the belief that prison conditions led to his father’s death, but we do not accept the premise of Mr Keith’s submission. There are obvious reasons why Mr Adamescu Senior is not a direct comparator in this respect. By way of examples, Mr Adamescu Senior was not extradited and did not have the benefit of the assurances which are offered in the appellant’s case; and the detention centre at which Mr Adamescu was initially held has been refurbished since he was there.
172. We accept that the DJ might have dealt more fully than he did with the Article 3 issue. He was not however required to address every argument put forward on behalf of the appellant over a lengthy hearing. We are satisfied that on the basis of the evidence before him, and in particular in the light of the assurances given by the respondent, his decision was not wrong. […] (***)
These passages contain various gems:
- The fact that Dan Adamescu died in prison because of grievous fault on the part of the prison authorities and their refusal to allow him necessary and timely medical treatment is dismissively referred to as a mere “belief” on the part of his son, when in fact an examination of Dan’s statement shows that it is not just a belief but a fact, as can be verified by examining the text of the statement, which the High Court omitted to do.
- Dan’s statement does not actually say that it was “the prison conditions” as such which “led to his death” as the High Court somewhat hastily sums it up; his death was specifically due to the fact that the authorities refused to let Dan receive proper medical treatment for his very serious condition, even in the face of his willingness to pay for it himself.
- The High Court gives what it calls an “obvious [?!] reason” why Mr Adamescu Senior’s dreadful experience is “not a direct comparator”, in that he “was not extradited and did not have the benefit of the assurances which are offered in the appellant’s [Alexander Adamescu’s] case”.
- Hah! The implication of this line of reasoning is clear, though absurd: since Dan Adamescu was “not extradited” but arrested in Romania and thus unable to enjoy the “benefit of assurances”, which are in contrast to be enjoyed [?!] by his son, then it has to follow that the High Court is of the opinion that anyone who is arrested in Romania runs a high risk of undergoing the frightful treatment meted out to Dan Adamescu. This treatment is not examined by the High Court. Yet Dan’s description is not contested by the High Court, which, though not examining any of its details, takes it as read. The High Court appears to be quite unperturbed and ready to accept that the Romanian authorities may regularly flout the “humane prison conditions” requirement of the ECHR for those who are unfortunate enough to fall into their clutches in Romania. Alexander however, having had the “benefit” of being arrested in the UK is supposedly able to enjoy the “benefit of the assurances” provided by those same authorities.
- The High Court does not consider in this context the testimony of other extraditees, who had been extradited to Romania on “assurances” which they say were not honoured. This was to have been considered by the lower court, but was then not allowed since the Romanian authorities decided not to (or asserted they were unable to) provide the necessary video-conferencing facilities for them to be cross-examined in the UK court. This testimony as to the untruthfulness of similar “assurances” is thereby erased.
- The cherry on the cake is when they say “the detention centre at which Mr Adamescu was initially held has been refurbished [sic] since he was there.” They give no details … perhaps the hole in the ground in the corner of the room which was used as a lavatory has now been made somehow more … er, user-friendly? Or perhaps a wire-netting barrier has been provided to stop the rats from entering the cell through the drains?
- In para. 172 the High Court admits that DJ Zani did not deal as fully with the issue as he might have done. But then they write. “He was not however required to address every argument put forward on behalf of the appellant over a lengthy hearing.” So in effect they say that Zani was entitled to ignore, at his arbitrary choice, any arguments by the defence. The strong implication here is that these omissions were justified because the hearing was …“lengthy”! In effect no other reason is put forward to justify Zani’s refusal to consider a piece of crucial and compelling evidence.
- In para. 172 the High Court also writes, “We are satisfied that on the basis of the evidence before him, and in particular in the light of the assurances given by the respondent, his decision was not wrong.” Three remarks are in order here:
- Judge Zani did not decide on the basis of the evidence before him, since he wilfully ignored the compelling evidence of Dan Adamescu’s deathbed statement.
- The High Court judges do not feel confident enough to say “his decision was RIGHT”. This must be because they surely realise they are treading on thin ice, so they merely say “his decision was … not wrong.”
- They give the game away when they say “in particular in the light of the assurances given by the respondent”(ie the requesting State). In effect a British Court is turning itself into a rubber-stamp for a Romanian Prosecutor’s demand. Professor Spencer’s intention, as he announced it to Lord Hope, that “Certainly we meant coercive acts of all sorts to be subject to the authorisation, after weighing the matter up, of the judge in the national state” is here effectively belied.
Mr Zani and the High Court judges would doubtless argue, in justification, that the law is as laid down in the Extradition Act 2003, and their job was merely to apply it.
Surely there is therefore a strong case for Parliament to amend that part of the TCA which continues to maintain the terms of the Extradition Act 2003 in this regard? The principle of “Mutual confidence and recognition”, certainly as expressed by Mr Zani, has scant basis in the case of Romania. Indeed, arguably, similar reasons can be found in the case of other EU member states which are governed by variants of the Napoleonic-inquisitorial system of criminal justice and procedure, so very different from, indeed alien to, ours. The principle of a-priori “mutual confidence and recognition” should be repealed, and the special preferential treatment for “Category 1”, ie EU states, abolished.
Let us now lift the carpet, look at some details of Dan Adamescu’s statement, and see just what Judge Zani had swept under it.
So we ask – what about Dan's assertions as to the fact that he did not get a fair trial? Was there any discussion of these in Mr Zani’s court or in the High Court, and were any detailed counter-statements or arguments produced? I refer in particular to the facts about his trials in Romania, as he wrote,
- that his lawyer was not allowed to cross-examine the only prosecution witness,
- that he and his lawyer were constantly interrupted by the judge, and
- that the prosecution witness did not even turn up for any hearing in the Appeal Court which nevertheless confirmed his conviction ?
None of these items regarding the trial procedure used in Romania are addressed or considered by the High Court, let alone by Judge Zani in the lower court. They would appear outrageous in a UK context. Yet they have been passed in silence.
Likewise Dan’s description of how he and three other prisoners (Romanian judges accused of taking bribes) were cooped up in a small insufficiently ventilated cell with one tap that provided hot water for only two hours every week; and as for a lavatory they had to make do with a hole in the floor in the same room, over which he had to squat, and how, with age, infirmity and lack of exercise weakening his leg muscles, he often collapsed into his own excrement.
Both humane prison conditions and a fair trial are considered "fundamental human rights" even by the ECHR, and if there be substantial grounds to fear they would be violated, this provides valid reasons, even under the Extradition Act 2003, for a UK court to refuse to execute an extradition request. It appears that the “assurances” provided by the Romanian authorities regarded only the prison conditions, and not the unfair procedures used during Dan’s trial, for which not even questionable “assurances” were provided.
It should consequently be obvious that by denying these rights in favour of “assurances” from the Romanian Prosecution service, both Mr Zani and the High Court failed to deliver justice.
The legal proceedings now appear to have been exhausted, and the Romanian government has applied pressure on the UK through the British Ambassador, to expedite the execution of this extradition.
Some way must be found to stop this. If not, it would indeed be a sad and sorry page in the annals of British justice. Parliament must surely act to change the law and remove the quite unwarranted presumption that there are always valid grounds for “mutual confidence and recognition” with EU member states.
(*) Ref. Judgement by DJ John Zani: https://www.matrixlaw.co.uk/wp-content/uploads/2018/04/13.04.18.pdf
(**) Ref. Dan Adamescu’s statement, he signed each page, witnessed by his own lawyer. Shortly after signing it he entered a coma and later died: https://www.friendsofalexanderadamescu.org/wp-content/uploads/Dan-Adamescus-witness-statement-1.zip & https://www.friendsofalexanderadamescu.org/wp-content/uploads/Dan-Adamescus-witness-statement-2.zip
(***) Ref. High Court judgement: https://www.bailii.org/ew/cases/EWHC/Admin/2020/2709.html