Merticariu v Judecatoria Arad, Romania [2024] UKSC 10 (06 March 2024)
Citation:Merticariu v Judecatoria Arad, Romania [2024] UKSC 10 (06 March 2024)
Rule of thumb: If you are not informed of a criminal trial date because you are in a foreign country, & you are convicted in absence, is this an absolute right to a re-trial or does the Judge have discretion? Yes, this is an absolute right to a re-trial. Any statutory provision giving a Judge discretion to decide whether they grant a re-trial or not is not compliant with Article 6 – this scenario must result in a re-trial.
Background facts: This case invoked the subjects of procedure & the Right to a Fair Trial, ECHR.
The basic facts of this case were that Mr Merticaru, a Romanian citizen, was accused of burglary & convicted of absence in Romania. Mr Merticaru was not informed of the trial. The Romanian authorities sought to extradite Mr Merticaru back to Romania. Mr Merticaru argued that he only had the right to apply for a re-trial in Romania, but, it was not guaranteed that even if he proved he was not informed that he could get a re-trial.
Court held: The UKSC upheld the arguments & affirmed that the Romanian statute only granting the right to apply for this was not compliant with Article 6. If a person can prove factually that they were not provided with notice of the trial, this must result in a re-trial, and does not lie within the discretion of a Judge.
Ratio-decidendi:
'1… The key issue in this appeal is, when all is said and done, a very short point concerning the proper construction of section 20(5) of the Extradition Act 2003 ("the 2003 Act"). Section 20(5) imposes a duty on the judge at an extradition hearing to decide whether a requested person, convicted in their absence, would be entitled after extradition to a retrial (or on appeal to a review amounting to a retrial) in the requesting state. The appellant submits that there must be an entitlement to a retrial in the requesting state, which is not dependent on any contingency, except for purely procedural matters such as making an application in the manner and in the time prescribed in the requesting state. By contrast, the respondent submits that it is sufficient for there to be a right to apply for a retrial to a court in the requesting state even if the success of that application is contingent on the court in the requesting state finding that the requested person was not present at, or was not deliberately absent from, their trial….
58… It is suggested that these problems would be overcome, if the true construction of section 20(5) guaranteed not the granting of, but the right to apply for, a retrial. We reject those submissions. First, subject only to completion of procedural steps, there is an obligation on the requesting member state to begin the retrial or appeal if the issuing judicial authority, whether a judge, a court or a prosecuting authority, ticks box 3.4 in point (d) of the EAW and thereby secures the surrender of the requested person under article 4a(1)(d): see para 29 above. The Amended Framework Decision is structured on the basis that a retrial or appeal will begin based on information provided by the issuing judicial authority in box 3.4 in point (d) of the EAW. So, equally if the issuing judicial authority provides further information pursuant to article 15, subject only to completion of procedural steps, there is no reason why the court in the requesting state is not obliged to begin a retrial or an appeal. Second, before the executing judicial authority in the UK decides whether the requested person would be entitled to a retrial, it must first have decided that the requested person was not convicted in his presence and had not deliberately absented himself from his trial’.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.