SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH. 

2015SCEDIN42

         E44/15

                                                                               Judgment by Sheriff T Welsh QC,

                                                                               Under the Extradition Act 2003                                                                                                                                                  

 

                                                                                                 In the Case of

 

                                                                                  The Lord Advocate, Crown

                                                                                  Office, Edinburgh, (on behalf of   

                                                                                  the Slovak Republic).                                                                            

                                                                                                                             (Applicant).                                                  

 

                                                                                                 Against

 

                                                                                  Pavol Merica, 39 Gallowshad Road, Forfar   

                                                                                  Angus, Scotland.

                                                                                                                             (Respondent)

 

                                                                    Act: Ms M Poppius, Crown Office, Edinburgh

                                                                    Alt: Mr Cairns, Capital Defence Lawyers, Edinburgh

 26^th May 2015

The Issue

[1] On 14^th May 2015, at a full extradition hearing, Pavol Mercia appeared before me on a European Arrest Warrant (EAW) dated 26^th June 2014. He is wanted by the Slovak Republic to serve a sentence of 8 months imprisonment, for the offence of ‘joy-riding’ in a car, on a forest road, in the cadaster of Liptovsky Jan, in northern Slovakia, on 23rd July 2004, when he was 22 years old and disqualified from driving. He was convicted of the offence in absentia on 2^nd September 2009. He is presently 33 years old. He has lived in Scotland since 2006. Now, 11 years later, when he has a partner, a home, a job, a young family and a settled life in Scotland, the Lord Advocate seeks a warrant on behalf of the Slovak Republic for his extradition to serve the 8 month sentence.

[2] I am asked to decide three questions: (1) whether and to what extent the passage of time constitutes a bar to his extradition, in terms of s14 of the Extradition Act 2003 (2) whether the precise terms of this EAW, comply with s20 of the 2003 Act, which protects the right to a fair trial, of persons convicted in absentia and returned by the UK to a requesting country and [3] whether given the whole circumstances of this case, extradition, if ordered, would be compatible with the respondent’s right to a family life within the meaning of the Human Rights Act 1998.

 

The Slovak Republic.

[3] In 1969, following the Soviet era, the former Czechoslovakia became a federation, comprising the Czech Republic and the Slovak Republic. In 1992 the Slovak Republic left that federation and declared itself an independent sovereign state. The Slovak Republic became a member of the Council of Europe on 30^th June 1993 and on 1st May 2004 it became a member of the European Union.  In such circumstances, The Slovak Republic, has been designated a category 1 territory in terms of section 1 of the Extradition Act 2003, and Part 1 of the Act accordingly applies. See the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003/3333 as amended by the Extradition Act 2003 (Amendment to Designations) Order 2005/365 (March 1, 2005).

 

 

The Evidence.

 

[4] At the full hearing I heard undisputed evidence on oath from the respondent and his partner. I made the following findings:

 

1. Pavol Merica is a citizen of the Slovak Republic. He now lives in Forfar, in Scotland, with his Polish partner Natalia Kizewska and her two children aged 2 and 4.
2. He has lived in Scotland since 2006. He has not been in trouble with the authorities here.
3. He was born and brought up in Poprad at the foot of the Tatra Mountains, in Slovakia.
4. In July 2004 he was spoken to by the local Police about an incident of joy-riding in a local forest. He said he thought he was charged and appeared in court, in 2004. However, he heard no more about the case until the EAW was executed in Scotland on 2^nd April 2015. He believed the case was finished in 2004.
5. Between 2004 and 2006 he continued living in his family home in Poprad at a contactable address. He was unaware of any continuing proceedings against him at that time. He still retains a financial interest in that property and is obliged to make a yearly municipal return/declaration to the Poprad local authority specifying his address in Scotland.
6. Any mail he receives at the address in Poprad is forwarded to him by his grandmother, who lives in the city.
7. His mother now lives in Austria but uses the family home 4 times per year. He has been back to Poprad to visit family in 2007, 2009 and 2011 and stayed at the family home.
8. He has never been stopped at the Slovak Republic border or questioned by Slovak police about the joy-riding offence since 2004.
9. He has received no correspondence from authorities summoning him to court to answer the charges specified in the EAW.
10. He has always worked and now has a job as a delivery driver with a firm in Dundee. He met his partner Natalia Kizewska, 2 years ago. She has 2 children, aged 2 and 4. Their biological father, it was said, has an alcohol problem and has been in trouble with the police here in Scotland. He takes little to do with the lives of his children.
11. The respondent has become a father figure for the children. He supports them and his partner who does not work outside the family. He is the breadwinner.
12. The couple are committed to each other and see their lives together as a family, here in Scotland.
13. The family, would be adversely affected, if the respondent were to disappear, suddenly, from their lives for 8 months, to serve a sentence of imprisonment in Slovakia. He has not come to the attention of the authorities in Scotland.
14. The respondent is the person named in the EAW.
15. The offences specified in the EAW are extraditable offences.
16. The requested state has failed to supply a relevant timeline or clarification about the passage of time. The respondent is not a fugitive from justice.

 

[5] Ms Poppius for the Lord Advocate led no evidence. She relied upon the terms of the EAW. She stated that according to the EAW the respondent had been convicted, in his absence, on 2^nd September 2009.  She confirmed he is not a fugitive.

 

 

 

 

 

 

 

 

 

The Submissions on s.14 of the Act ‘The passage of Time’.

[6] After the evidence of the respondent, Mr Cairns invited me to hold that extradition in this case was barred by virtue of s14 of the 2003 Act that provides:

“A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have–

(a) committed the extradition offence (where he is accused of its commission), or

(b) become unlawfully at large (where he is alleged to have been convicted of it).”

He identified 2 relevant periods of time (1) from the commission of the offence on 23^rd July 2004 until the respondent was convicted in his absence on 2nd September 2009, a period of 5 years approximately and (2) the period from conviction on 2^nd September 2009 to the date of issue of the EAW on 26^th June 2014, a further period of about 5 years. He stated he had repeatedly sought clarification from the Crown Office and the Slovakian authorities as to what had happened during these periods. The requesting state, he said, has provided no clarification. On the other hand a great deal has changed in the life of the respondent. The respondent was available for due process in the Slovakian Republic for 2 years, until 2006, before he moved to Scotland. Here, he has created a new life for himself with new responsibilities, a good job and a young family to support. It would now be oppressive, given all the changes in his life, to order the return of the respondent, at the age of 33, to serve a prison sentence of 8 months for a relatively minor offence committed almost 10 years ago when he was 22. He relied on the cases of Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 and Gomes v Trinidad and Tobago [2009] 1 WLR 1038.

[6] Ms Poppius, for the Lord Advocate, confirmed that her department had asked the Slovakian authorities for clarification in the form of a ‘time-line’ to explain what had happened during the time between the commission of the offence in 2004 and conviction in 2009 and thereafter until the EAW was issued in 2014. However no answer has been forthcoming. Notwithstanding that, she submitted that it would be neither unjust nor oppressive for the respondent to be returned to the requesting state to serve the sentence.

 

The Submissions on s 20 of the Act and article 6 ‘The Right to a Fair Trial, guaranteed to a returned person, convicted in absentia’

[7] Mr Cairns argued that if the s.14 bar did not stop extradition then, separately, the EAW was defective because it did not comply with s.20(5) of the 2003 Act by stating clearly that if extradited to the Slovak Republic, the respondent is entitled to a retrial, in that state because he was convicted, there, in his absence. He said a clear guarantee of an unconditional right of retrial was absent from the face of the warrant and that what the respondent was offered in Box (d) of the EAW was the ‘right to file a motion for retrial within 6 months of the date when he learnt about the conviction’. That was quite a different thing, he argued. He said a motion could be filed and granted or refused. That qualified right he said was insufficient to satisfy the terms of the UK legislation that a person convicted in absentia must have the right to a retrial, if returned. He relied on the case of Bohm v Romanian Judicial Authority [2011] EWHC 2671

[8] Ms Poppius for her part accepted that the procedural right to retrial was essential, in conviction in absentia cases but asserted that the exercise of the right must be subject to relevant procedural mechanisms within the domestic law of the requesting state, to trigger it and she stated that the right to retrial was discernible from the face of the EAW. She relied on Nicolae Nastase aka Nicolae Soloman [2012] EWHC 3671 (Admin) at para 45. The fact that a convicted person needs to file a motion to access the right to retrial does not invalidate the right.

The Submissions on s.21 of the Act and article 8 ‘The Right to a Family Life’

[9] After the evidence of the respondent’s partner, Mr Cairns addressed me on the article 8 point. He was brief and asserted that in the circumstances, given the relatively minor nature of the index offence and the existence of genuine strong lasting family bonds here in Scotland it would be invidious to return the respondent to the Republic of Slovakia to serve such a short sentence.

[10] Ms Poppius opposed that suggestion and argued there was nothing out of the ordinary or remarkable about this case. There is a strong public policy interest in extradition being granted. Some hardship will be inevitable in returning any requested persons but it would only be in exceptional cases that return should be refused on article 8 grounds. This case was not exceptional.

Discussion and Decision.

S 14 and The Passage of Time

[11] To succeed in a passage of time case, the respondent must demonstrate his return will be unjust or oppressive, before extradition will be barred on this ground.  Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 explained what is meant by the terms unjust or oppressive, in the context of extradition requests:

 “‘Unjust’ I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, ‘oppressive’ as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair……As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. “

 

[12] I have no reason to suppose, from the material before me, that the respondent would not receive a fair trial in the Slovak Republic, after the passage of 11 years, for a relatively minor road traffic offence. There is a strong presumption, undisturbed in this case that he would. So, I am not persuaded it will be unjust to return him on that basis.

[13] However, in the circumstances of this case, the question is, would it be oppressive to require him to be extradited, given the passage of time which has elapsed and the significant changes to his life, which have occurred in:

 

1. the 5 years, between his conviction, in absentia in 2009 and the issue of the EAW in 2014;
2. the 10 years, between the index offence in 2004 and the issue of the EAW in 2014 and
3. the almost 11 years, that have passed between the index offence and the proof before me.

 

[14] The Lord Advocate accepts the respondent is not a fugitive from justice. Therefore the period of time to be taken into consideration for the purposes of the passage of time bar, in my opinion, should not exclude the 5 years between the offence in 2004 and the conviction in 2009. During that time the respondent was not deliberately avoiding the Slovakian authorities. He lived in Poprad for two years between 2004 and 2006 when he migrated to Scotland. During that period he would have been available locally to the requesting state, for prosecution, for the offence. Between 2006 and 2009 the respondent could have been contacted at his family’s home address in Poprad. His mail was forwarded to him in Scotland. In 2007 and 2009 the respondent visited Poprad from Scotland. He was not stopped, entering or leaving the jurisdiction. He was free to travel unhindered by inquiry to and from the requesting state. In my opinion, it would not be fair to exclude from computation in s 14 cases both periods mentioned s14(a) and (b) where the respondent is convicted in absentia.

[15] The absence of clarification from the authorities in the Slovak Republic and the absence of a time-line explaining what happened from the state’s perspective, during the passage of time, is problematic. The respondent on the other hand continued to live openly in his home town for 2 years after the alleged offence. He was working. He then decided to migrate within the EU. He resettled in Scotland, got a series of jobs, met a new partner and settled down with a new young family which depends upon him as the breadwinner and father figure. Then, out of the blue, this EAW is served on him. The requesting state has not clarified what happened from its perspective, despite repeated official requests from the appropriate authority here. Given the passage of times between the index event, the conviction, the issue of the EAW request and the proof, taken separately and together, against the background of the relatively minor nature of the offence as opposed to the very significant and material changes which have occurred in the respondent’s life, all of which, had the respondent been treated with ordinary promptitude by the requesting state, would not have come to pass before he was appropriately dealt with, then, in those circumstances I conclude it is, on balance, oppressive to return him now and I discharge the warrant on that ground.

[16] I derive some support from a not dissimilar case involving the Slovak Republic decided in 2013, Marek Potocky v District Court In Michalovce, Slovakia [2013] EWHC 2052 (Admin) which stated:

“There has been a substantial passage of time. Albeit that some of the delay can be explained, there are periods when the Judicial Authority seems to have dragged its feet. The issue for me is whether that is oppressive under section 14 of the 2003 Act and the well-known authorities like Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 and Gomes v Government of Trinidad and Tobago [2009] UKHL 21; [2009] WLR 1038. I am persuaded that it would be oppressive given the delay since 1997 when this appellant allegedly committed the offence. The Slovakian authorities knew about him from 2005 because of the passport application at the embassy in London. At that point, the embassy would no doubt have obtained his local address. Thus notwithstanding that we have no firm evidence whether the appellant did make the applications for amnesty in 2006 and 2008, one arm of the Slovakian state must have known about him because the passport was refused on the basis that he had a conviction. So by 2012 the Slovak authorities had known about him for some 6 years before they issued the warrant. That, of course, is some 15 years after the offence took place. To my mind, this is a case of culpable delay: see Government of United States of America v Tollman [2008] EWHC 184 (Admin); [2008] 3 All ER 150, [91]. No suitable explanation has been provided for it. In any event, the appellant has, at least since that time, been living in Wales, working in a restaurant, living openly in this country. He cannot be regarded as a fugitive. He was in contact with the authorities, as I say, since 2005. There will be an impact on his partner and children. Ms Davidson contends that it is a run-of-the-mill case. In one sense it is, but in another sense it is different. This offending was allegedly committed when the appellant was only 20 years old. He is being pursued for it some 16 years afterwards. Taking these factors in the round, it seems to me that extradition in this case will cause hardship. It therefore meets the test of oppression laid down in the authorities. In any event, it seems to me that under Article 8 it would be disproportionate for extradition to occur in the circumstances of this case. On that basis, I allow the appeal and quash the extradition order.”

 

 

S 20 and the Right to a Fair Trial Guarantee if returned, in absentia cases.

[17] Section 20 of the 2003 Act was originally based, on Article 5.1 of the Council

Framework Decision of 13 June 2002 (2002/584/HA). That Article was deleted with effect from 28 March 2008 by Article 2.2 of Council Framework Decision of 26 February 2009 (2009/299/JHA).  The 2003 Act was not subsequently amended as it remained, as originally enacted, capable of transposing into UK law, the necessary procedural right to a retrial of persons subject to extradition but convicted in absentia, which the enhanced formulation in Article 2.2 Council Framework Decision of 26 February 2009 (2009/299/JHA) was introduced to clarify.  

[18] The respondent was convicted in absentia. He was ignorant of the process against him and did not deliberately absent himself. In these circumstances he can only be returned if he is guaranteed a retrial or an appeal amounting to the same thing. Mr Cairns relies on Bohm v Romanian Judicial Authority [2011] EWHC 2671 (admin). The effect of that case is summed up by Mr Justice Lloyd Jones in Viorel Beretki v Harghita Law Court Romania [2012] EWHC 336 (Admin). “It turns on the effect of section 20(5) , which provides that if the Judge decides that a person was convicted in his absence and that he did not deliberately absent himself from the trial, then the court must consider whether there is an entitlement to a retrial, or on appeal to a review amounting to a retrial. That is a mandatory requirement. If there is no such entitlement then there is a bar to extradition. That is what occurred in Bohm”.

Thus to succeed on this ground the respondent must demonstrate that if returned he would not be entitled to a retrial or on appeal to a review amounting to a retrial. The respondent points to the EAW which states he has a right ‘to file a motion’ to secure a retrial. It is said that is not an unequivocal right to a retrial. In my opinion, a procedural step antecedent to effecting access to a guaranteed right of retrial, is not a bar to extradition, as had already been decided in respect of an extradition involving Italy:

“45 The existence of procedural steps does not remove the entitlement to a retrial. Rather, the Italian authorities must be permitted to regulate their own proceedings by imposition of their own rules. Section 20 may create entitlements, but procedural rules set parameters within which such rights are exercisable.” Lady Justice Rafferty in Nicolae Nastase aka Nicolae Soloman v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin).  Thus, I am  not prepared to hold that the respondent should be discharged in terms of s20(7) for want of a fair trial guarantee should he have to be returned, in this extradition process.

 

 

 

S 21 and The Right to a Family Life

[19] The principles governing the court's approach in article 8 cases are now well-known. They were clearly established in Norris v Government of the USA [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic of Genoa [2012] UKSC 25:

“1) In considering Article 8 issues the question is always whether the interference with the private or family lives of the extraditee and other members of his family is outweighed by the public interest in extradition;

2) There is a constant and weighty public interest in extradition, that people accused of crime should be brought to trial, that people convicted of crimes should serve their sentences, that the United Kingdom should honour its Treaty obligations to other countries and that there should be no safe havens to which either can flee in the belief that they will not be sent back;

3) That public interest will always carry great weight, but the weight to be attached to it in each particular case will vary according to the nature and seriousness of the crime involved;

4) Delay since the crime was committed may both diminish the weight to be attached to the public interest in extradition and increase the impact upon private and family life;

5) Hence it is likely that the public interest in extradition will outweigh the Article 8 rights of the extraditee and his family, unless the consequences of the interference with family life will be exceptionally severe.”

 

[Formulated by Mrs Justice Cox in Aleksejevs v Daugavpils Court, Republic of Latvia [2014] EWHC 3101]. Had the present case not involved a significant issue in terms of s 14 which, in my view, is determinative, I would not have been persuaded, on a balance that the specific facts established here, involved such exceptional hardship, as to outweigh the clear public interest in allowing extradition. Typically, extradition and hardship go together, cheek by jowl. Therefore, case law indicates it will only be in exceptional circumstances that private right will trump the public interest in extradition.

[20] It may be said there is no substantial difference between the s 14 and the s 21 cases. I disagree. It is exactly because the facts prayed in aid of the article 8 case have come to pass, by reason of the unjustified and unexplained passage of time, that return after the passage of that time, is, in my view, oppressive and the s 14 case succeeds.

[21] However, I do not think it necessarily follows that the same facts in themselves, are such, that on a balance of equities, when measured against the public interest in extradition, (rather than examined in contrast to state inactivity) they can be said to outweigh the legitimate and justified public interest in favour of extradition. Logically, two different exercises involving the judicial assessment of the same facts are engaged but, in my opinion, they are not exercises which, necessarily, produce the same result. In the absence of a passage of time argument, I would conclude that any hardship caused, would be caused by the respondent going to prison, losing his job and thereby bringing straitened circumstances upon his family, none of which are exceptional, in the context of extradition. That hardship would not flow from a breach of his right to a family life as such, if he is legitimately imprisoned even 11 years after the index offence, for a relatively minor offence. Therefore, I would not be prepared to hold, independently of s 14, that extradition is incompatible with the respondent’s Convention rights, in terms of s 21(2) of the 2003 Act and discharge him on the basis of a breach of his article 8 right to a family life, whether considered individually in his own right, or, if looked at, from the perspective of the article 8 rights of his de facto family. In my opinion, the facts established in this case, add weight to and anchor the s 14 case, in a way they cannot in respect of the s 21 case, if examined in isolation and displaced from the context of s 14.