European Arrest Warrant

By Anand Doobay, Partner in the Fraud and Regulatory Department, Peters & Peters Solicitors

1. Human Rights

   1.1 Article 3

   Chyba v District Court in Strakonice, Czech Republic [2008] EWHC 3292 (Admin)

1. The appellant was serving a sentence in the Czech Republic, having been surrendered pursuant to a European arrest warrant. Subsequently, the District Judge gave his consent under section 55(6) for the appellant to serve another sentence following a request from the respondent authority.

2. The appellant submitted that the 'consent' violated his article 3 ECHR rights in the light of his circumstances in prison in the Czech Republic. The following factors were submitted in support of his claim:

   inadequate diet, which has caused a dramatic weight loss; prison overcrowding (fourteen people in a single cell with only two toilets for their use); only sporadic provision for proper exercise; inadequate medical treatment (he suffers from hepatitis and has not been given appropriate medication); severe punishment for infringing the rules and subjection to solitary confinement. 3. The Court held that pursuant to section 34 there was no right of appeal against a decision under section 55(6). However, had the appellant raised a credible case that article 3 might be violated, the Court would have been prepared to entertain an application for judicial review.

4. The Court referred to Kalashnikov v Russia1 as the leading authority on whether prison conditions violate Article 3. The Court there found that there had been a breach of Article 3 where the prison conditions included:

   severe overcrowding; shift-sleeping due to the overcrowding (aggravated by the constant lighting and television); lack of privacy in the use of a toilet in full view of other inmates and guards; lack of ventilation and passive smoking; infestation of cockroaches; contraction of a variety of skin diseases, fungal infections and exposure to the risk of contraction of tuberculosis and syphilis. 5. The Court also cited finding in Kalashnikov that treatment in prison was inhuman because, inter alia, it was premeditated; it was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering; and it was degrading because it was such as to arouse in the victims a feeling of fear, anguish and inferiority capable of humiliating and debasing them.

6. In the instant case, the Court found that appellant's contentions were unsupported by any evidence and were contradicted by the responses received from the respondent.

7. The Court also relied on an extract from a report to the Czech Government carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in March, April and June 2006. Although the report did not include the prison where the appellant was detained, it made it clear that the Committee found nothing that could remotely approach any breach of article 3.

8. Thus the appellant failed to rebut the presumption that, as Category 1 territory, the Czech Republic must be taken to act in good faith and it would not violate the appellant's rights in accordance with its international obligations.

   Kalniets v District Court of Ogre, Latvia [2009] EWHC 534 (Admin) 9. The appellant appealed against the decision of the District Judge to order his extradition.

10. The appellant sought to adduce fresh evidence as to prison conditions in Latvia on appeal.

11. The Court dismissed the appeal.

12. The court applied the section 29(4)(a) interpretation in Hungary v Fenyvesi to section 27(4), namely evidence that was "not available at the extradition hearing" meant evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained, and that if it was at the party's disposal, or could have been so obtained, it was available.2

13. The appellant did not meet the criteria as no witness statement was advanced to explain why the fresh evidence was not put before the District Judge and the suggestion that it might have been the fault of the appellant's previous lawyers was only speculative.

14. In considering the fresh evidence de bene esse, the Court held that it did not meet the test in ex parte Ullah3 of showing "strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment". The 2004 Report of the Committee for Prevention of Torture was found to be too old to reflect the risk posed by Latvian prison conditions in 2009.

    Baranauskas v Lithuania [2009] EWHC 1859 (Admin) 15. Similarly to Kalniets the Court dismissed the appeal because the Report relied on by the applicant was published in 2004 which was found to be too old to be reliable evidence of the current conditions.

16. In addition, in this case the Ministry of Justice in Lithuania had guaranteed that "in case of surrender of [the appellant] to Lithuania he will be treated with full respect to his human rights during execution of the sentence in correctional institutions of Lithuania".4

    1.2 Article 6

    Atkinson v Cyprus [2009] EWHC 1579 (Admin)

17. The appellants were charged in Cyprus with criminal offences but acquitted following a trial and subsequently left Cyprus. Following an appeal by the prosecution they were found guilty of manslaughter and sentenced to three years' imprisonment. The District Judge ordered their extradition. The Court dismissed the appeal.

18. The Court found that, the appellants had deliberately absented themselves from their trial. The Supreme Court hearing was part of the trial process in Cyprus because the acquittal by the first instance court was not final. Any inaccurate information given by a legal adviser would not prevent that individual's decision to absent himself from a trial from being deliberate.

19. The article 6 argument failed because it was premised on the assumption that the appellants' trial under section 20(3) was the hearing before the Supreme Court where there was no right to call evidence or to examine or cross-examine witnesses.

20. However, the appellants had a full article 6 compliant hearing before the first instance court in Cyprus. This was sufficient to find no breach of the article because the Supreme Court only considered whether the findings of fact made by the first instance court ought, as a matter of law, to have resulted in a conviction. The appellants could play no part in that process, other than through their legal representatives who could make representations on the issue before the Supreme Court.

    Symeou v Greece [2009] EWHC 897 (Admin) 21. The respondent public prosecutor of the requesting state had sought the extradition of the appellant to face a charge equivalent to manslaughter arising out of an assault in a Greek nightclub in July 2007. The appellant appealed against the decision of the District Judge ordering his extradition to Greece.

22. The appellant made three submissions. First, his extradition would be an abuse of process because of (i) the way the Greek police had investigated the offence (it was contended the police, through violence and intimidation, had obtained statements from two of the appellant's friends which wrongly incriminated him and that the police also manufactured or manipulated other statements from British nationals who had been in the night club at the time, which incriminated the appellant, and that these would be admissible against him at trial) and (ii) a defect in its domestic procedure invalidated the Greek domestic warrant and therefore also the EAW.

23. Secondly, the passage of time made it unjust or oppressive to extradite him.5

24. Thirdly, that extradition would breach articles 6 and 8 ECHR because of the risk that evidence would be admitted which had been obtained by coercion, and because the offence could be tried in the UK.

25. The Court dismissed the appeal on all grounds.

26. The Court held that the abuse of process argument failed because the abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state. The residual jurisdiction concerns abuse of the extradition process by the prosecuting authority. The defective domestic warrant argument also failed because the Court held that issues relating to the criminal law of the requesting state are outside the district judge's...