01 Dec 2023

Extradition Ruling Hints At Ways Around High Burden Of Proof

On Nov. 8, the U.K. Supreme Court handed down a judgment in the long-running extradition case of Popoviciu v. Curtea De Apel Bucharest (Romania), notwithstanding the withdrawal of the underlying European arrest warrant that ultimately disposed of the appeal with Gabriel Popoviciu’s discharge.

The judgment clarifies the applicable standard of proof in conviction cases when a requested person seeks to challenge extradition on the basis that they were denied a fair trial in flagrant violation of Article 6 of the European Convention of Human Rights, or ECHR.[1] As a result, their imprisonment in the requesting state based upon their conviction would amount to a flagrant violation of their Article 5 rights.[2]

The Supreme Court confirmed that — save in cases where evidence may have been obtained by torture — a requested person who has been convicted must prove any alleged flagrant violation of their Article 6 rights on the balance of probabilities. It will not be sufficient for them to show substantial grounds for believing that there is a real risk that their trial was flagrantly unfair.

Whilst at first blush this judgment warns of an uphill battle for convicted requested persons seeking to challenge extradition based on a past denial of justice, the Supreme Court’s reasoning reveals creative opportunities to test this boundary in the U.K. and Strasbourg alike.

Background

Romania sought the extradition of Popoviciu, who had been convicted of two offenses in June 2016: bribery and accessory to aggravated abuse of power. Popoviciu was sentenced to nine years’ imprisonment, which was later reduced to seven years’ imprisonment on appeal to Romania’s highest court.

On Aug. 3, 2017, the Bucharest Court of Appeal issued a European arrest warrant, seeking Popoviciu’s return from the U.K. Popoviciu’s case was sent to the secretary of state on July 12, 2019, by Judge John Andrew Zani in Westminster Magistrates Court and his extradition was subsequently ordered.

Popoviciu appealed to the High Court of Justice of England and Wales and was successful in applying to admit new evidence that shed light on the alleged corruption of Judge CorneliuBogdan Ion-Tudoran, who had convicted him in Romania. Specifically, Popoviciu alleged that Judge Tudoran had an undisclosed relationship with a prosecution witness in his case and was under investigation for various corruption-related offenses.

Taking account of this new evidence, the High Court overturned Judge Zani’s order for extradition in June 2021 in Popoviciu v. Curtea De Apel Bucuresti (Romania).

The court concluded that there were substantial grounds to believe there was a real risk that Popoviciu had suffered a complete denial of his rights under Article 6 of the ECHR by virtue of being convicted by a judge who could not be impartial. Therefore, his imprisonment in Romania would amount to a complete denial of his Article 5 rights.

Decision

On July 24, 2023, the U.K. Supreme Court dismissed an appeal brought by the Bucharest Court of Appeal following the withdrawal of the underlying European arrest warrant on July
13, 2023.

Nevertheless, on Nov. 8, 2023, the Supreme Court proceeded to hand down a judgment to clarify the test to be applied when a requested person is seeking to challenge extradition on the basis that their conviction was the result of a flagrantly unfair trial and, therefore, imprisonment in the requesting state would violate their Article 5 rights.

Addressing the certified point of law,[3] the Supreme Court unanimously concluded that it is not sufficient for a requested person in a conviction extradition case to establish that there
was a real risk that their trial was so flagrantly unfair as to deprive them of their Article 6 rights.

Subject to an established exception in cases where evidence used against the requested person may have been obtained by torture, a requested person who has already been convicted is required to meet the civil standard of proof and establish a flagrant violation of their Article 6 rights on the balance of probabilities. Such is a question of historical fact that must be proved, not a matter of assessing the likelihood of a denial of justice in the future.

In reaching this decision, the Supreme Court reviewed the exception to this rule established in the European Court of Human Rights, or ECtHR, case Othman v. U.K. in 2012.[4]

In that case, the Strasbourg court held that it is sufficient for a convicted requested person to establish a real risk that his trial was flagrantly unfair because of the admission of incriminating evidence obtained by torture, also known as the Othman principle.

The court reflected that torture is unique in attracting a moral objection, over and above concerns about ensuring a fair trial and, on that basis, refused to extend this exception to cases of alleged corruption and bias.

Commentary

The Supreme Court’s judgment is by no means surprising. In confirming that a convicted requested person must meet the civil standard of proof when seeking to rely on a past fact, the court held the line with both U.K. and Strasbourg jurisprudence. Is a challenge to extradition in these circumstances therefore fruitless?

While an extension of the Othman principle is yet to be endorsed by Strasbourg, the court in Othman did not exclude the possibility that ill-treatment falling short of torture may attract similar considerations to justify a departure from the general rule that a convicted requested person must prove on the balance of probabilities a flagrant violation of their Article 6 rights.

In particular, the difficulties in proving that evidence was derived from torture, which is often practiced in secret at the endorsement of a criminal justice system that is complicit in
its concealment, as well as the implications of such systematic failings in undermining the reliability of convictions, appear equally applicable to alleged corruption, bias and bribery, especially where such conduct pervades the highest courts in the requesting state.

For reasons unclear, the Supreme Court did not address these practical risks by dismissing as totally inappropriate[5] the suggested extension of the Othman principle to other violations of Article 6. However, in recounting the relevant considerations in Othman v. U.K., one might reasonably feel encouraged to push the open door and bring a challenge before the Strasbourg court.

Meanwhile, the Supreme Court in this instant case appeared to sanction a backdoor approach. It acknowledged that compliance with the principles established in the 1989 ECtHR case Soering v. U.K.[6] may require an extradition court to consider whether there is a real risk that a convicted requested person will be denied an effective means of challenging the fairness of their trial and lawfulness of their detention if returned to the requesting state.

The applicable test in these circumstances, where an extraditing state may bear responsibility for exposing a requested person to future treatment that would breach the ECHR, is the lower threshold of establishing a real risk.

Thus, a convicted requested person who alleges systematic corruption in the criminal justice system of the requesting state may effectively succeed in challenging extradition upon establishing a real risk of such failings.

In this respect, a recent case before the Strasbourg court may signpost a new approach towards states that adopt a defensive attitude to human rights issues with little transparency therein. The need for specific and individualized evidence of alleged human rights violations is a long-standing principle of Strasbourg jurisprudence and often a practical barrier to challenging extradition.

However, in the 2022 ECtHR case Liu v. Poland,[7] the Strasbourg court held that a general situation of violence in China, established by statistical data and reports issued by the United Nations, government bodies and nongovernmental organizations, was itself sufficient to establish a real risk that the requested person would face ill-treatment in violation of Article 3[8] if he were extradited there.

In circumstances where efforts to obtain credible information from the Chinese government were futile, the requested person was relieved from establishing a real risk that he, as an individual, would face ill-treatment, notwithstanding China’s assurance that his human rights would be respected.

This remarkable relaxation of the specificity requirement may make this case an outlier, or else be limited in application to China. However, for the reasons explored above, the court’s justification for relieving the requested person’s burden of proof in respect of alleged Article 3 violations — inter alia, due to difficulties in proving breaches of Article 3 where the violations are systematic and entrenched — appears equally applicable to alleged systematic corruption in breach of Article 6.

In these ways, a convicted requested person may still face an uphill battle in challenging their extradition based on a past denial of justice, but the road ahead is by no means a dead end.

______________________________________________________________________________

[1] Article 6 provides that everyone is entitled to a fair trial by an independent and impartial tribunal in the determination of their civil rights and obligations or of any criminal charge against them.

[2] Article 5 affords everyone a right to liberty, which shall only be deprived in accordance with the law. It provides that everyone who is deprived of their liberty is entitled to take proceedings to decide the lawfulness of their detention.

[3] The point of law certified by the High Court was: “In a conviction extradition case, is it sufficient for the requested person to show substantial grounds for believing that there is a real risk that his trial was so flagrantly unfair as to deprive him of the essence of his Article 6 rights, and therefore a real risk that his imprisonment in the requesting state will violate his Article 5 rights?”

[4] Othman v UK (2012) (Application no. 8139/09).

[5] Popoviciu v Curtea De Apel Bucharest (Romania) [2023] UKSC 39, at [73].

[6] Soering v UK (1989) (Application no.14038/88).

[7] Liu v Poland (2022) (Application no. 37610/18).

[8] Article 3 provides that no one shall be subjected to torture or inhumane or degrading treatment or punishment.

The article was published originally in Law360 on the 1st December 2023.

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