Breaches of Article 6 in Extradition ‘conviction’ cases must be proved ‘on the balance of probabilities’

Background

The case concerns the correct standard of proof to be applied in extradition ‘conviction’ cases where the Requested Person alleges his trial to have been so flagrantly unfair as to amount to a beach of their Article 6 rights, and therefore that there is a real risk that their imprisonment will violate their Article 5 rights.  The Supreme Court found the Divisional Court to have misdirected itself and to have applied the incorrect standard of proof when it decided the case. The Supreme Court determined that a Requested Person must prove on the balance of probabilities that the trial was flagrantly unfair, rather than, as accepted by the Divisional Court, that there were substantial grounds for believing that there was a real risk of breach, subject to an exception for cases involving evidence obtained by torture.

Sian Priory, Barrister at 5 St Andrew’s Hill, writes for Lexis Nexis.

What are the practical implications of this case? 

When advancing arguments of a similar nature, practioners will need to be alive to the higher standard of proof. Where the alleged breach of Article 6 stems from assertions or suspicions of bias and corruption, as in the instant case, this may well be evidentially difficult to achieve. Indeed, this issue was ventilated by the Respondent who advanced that the same difficulties in proving bias and corruption were present as for proving the use of torture in the context of Article 6 cases, and ought to attract the same exception to the higher standard of proof. The Supreme Court was not persuaded by this line of argument and found that this would be “totally inappropriate”, identifying torture as something more than merely difficult to prove, but morally offensive and a peremptory norm of customary international law enjoying the status of jus cogens.  

What was the background? 

In 2016, Gabriel Popoviciu was convicted in the Bucharest Court of Appeal of offences relating to a conspiracy to transfer a plot of land from state ownership to a private company in which he had an interest and was sentenced to 7 years’ imprisonment. He was represented and present for most of the trial. On 3 August 2017, a European Arrest Warrant was issued by the Bucharest Court of Appeal seeking the return of Mr Popoviciu to serve his sentence. On 12 July 2019, Westminster Magistrates’ Court ordered his extradition.

Mr Popoviciu then appealed to the High Court and it was at this stage that he raised evidence of a suspected improper relationship between the Judge who had presided over his trial in Romania and one of the key prosecution witnesses. The respondent made seven applications to adduce fresh evidence on appeal, some of which were successful. Having found that, on the evidence admitted, there were substantial grounds for believing that there was a real risk of Mr Popoviciu’s trial had been so flagrantly unfair that his right to Liberty (Article 5) would be breached, the High Court discharged Mr Popoviciu and quashed the extradition order. The High Court further certified a point of law of general public importance: 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?’

The Romanian authorities appealed the decision to the Supreme Court, however, the warrant was withdrawn soon after the case was heard before the Supreme Court. The Court was notified but continued to publish their decision in order to answer the certified question posed by the Divisional Court. 

What did the court decide? 

At the heart of the Supreme Court’s decision is the settled notion that the law of England and Wales distinguishes between proof of a fact that has occurred and assessment of the likelihood of the occurrence of the fact in the future. Long-established in the context of damages for personal injury (see Mallett v McMonagle [1970] AC 166) the principle emerged in the extradition discourse in R v Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 WLR 987 and would go on to be formulated by the Strasbourg Court in Soering v United Kingdom where the Court found that a Contracting State may violate Article 6 by returning a fugitive:

“where the fugitive has suffered or risks suffering a flagrant denial of a fair trial right in the requesting country”

(Soering para 113).

In Popoviciu the Supreme Court recognised that the Strasbourg Court clearly sought to establish a distinction between proof of an historical event which has occurred and an assessment of the risk of occurrence of such an event in the future [58]. It follows in the Supreme Court’s decision that as conviction cases necessarily relate to past events, allegations of conduct amounting to breaches of Article 6 must be proved, rather than the risk of that conduct having taken place being established, and as per the evolution of the principle in the Strasbourg and domestic courts, the appropriate standard to be applied is proof on the balance of probabilities.

The Supreme Court further determined that, but for the withdrawal of the warrant by the Romanian authorities, the case would have been remitted back to the High Court to determine the question of whether there would be an effective remedy for Mr Popoviciu to challenge the lawfulness of his detention in Romanian if extradition were effected, as required by Article 5(4) of the Convention [104]-[105]. The parties’ respective experts disagreed on this issue and so the matter would have been remitted for the experts to be cross examined.