Conditions for extradition to Romania not fulfilled

Case no. 62/2022
Order made on 27 April 2023

The Prosecution Service
vs.
T

In December 2010, T was sentenced to imprisonment for 10 years for fraud by a criminal court in Romania. T was sentenced without being present at the trial. T appealed the judgment, but her appeal was rejected.

When a new Romanian penal code was introduced, T applied for a reduction of her sentence in 2014, and in August 2015, the court granted her request and reduced the sentence to imprisonment for six years. Against this background, the Romanian authorities issued a European arrest warrant in September 2015. In June 2016, the Romanian authorities submitted an extradition request to the Danish Public Prosecutor.

As T was convicted in 2010 without being present at the trial, the Public Prosecutor asked the Romanian authorities to state whether the conditions for extradition for enforcement of a sentence passed without the individual being present during the trial were fulfilled. In a letter sent to the Public Prosecutor in July 2016, the Romanian authorities replied that the conditions in Article 4a(d) of the Council Framework Decision on the European arrest warrant, which corresponds to Section 16(1)(4) of the Danish Extradition Act, were fulfilled.

By order of September 2021, referring, among other things, to the information from the Romanian authorities in the letter from July 2016, the District Court of Frederiksberg held that the conditions for extradition in Section 16(1)(4) of the Extradition Act were fulfilled, and that T should be extradited to Romania. The order was appealed to the High Court, which essentially affirmed the District Court’s order.

Following the High Court’s order – and before T could be extradited – T’s Romanian lawyer informed the Public Prosecutor that T had received a final rejection of her request for a reopening of her trial in Romania.

On this basis, and following additional correspondence with the Romanian authorities, the Public Prosecutor concluded that the conditions for extradition set out Section 16(1)(4) of the Extradition Act were not fulfilled, but that it considered based on further information from the Romanian authorities that the conditions of Section 16(1)(2) of the Extradition Act were fulfilled.

The case before the Supreme Court mainly concerned the conditions in 16(1)(2) of the Extradition Act.

The Supreme Court held that the issue of whether T could be extradited to Romania under Section 16(1)(2) of the Act should be assessed with reference to the judgment from December 2010, which, according to the case law of the EU Court of Justice, should be regarded as the decision in which the question of T’s guilt was finally decided after a genuine review of the case against her. According to the information available about the time leading up to the sentencing of T in December 2010, T was represented by a court-appointed defence counsel whom she had not chosen herself and who did not communicate with her.

Against that background, the Supreme Court ruled that it had not been demonstrated that the conditions for extraditing T to Romania were fulfilled, and the request was therefore denied.

The High Court had reached a different conclusion.