Szegfu v Court of Pecs Hungary [2015] EWHC 1764 (Admin)

Flag_of_Hungary_svgOn 24 June 2015, the Divisional Court dismissed an appeal against the extradition of the Hungarian national, Norbert Szegfu. In its judgment, the Court considered the reach of section 26(5) of Extradition Act 2003 (EA 2003), and the Court’s new power to relax the seven-day notice period for extradition appeals, for the first time. The judgment is here.

Background

On 12 March 2015, District Judge Zani ordered the extradition of the appellant to Hungary, to serve 30 months’ imprisonment, pursuant to two ‘conviction’ European Arrest Warrants (EAWs).

On 15 April 2015, s. 26(5) EA 2003 entered into force. This allows the court to relax the seven-day appeal time limit imposed by s. 26(4) EA 2003, where the appellant has done ‘everything reasonably possible to ensure that notice of appeal was given as soon as it could be given’, in circumstances where notice is given after the end of the permitted period.

The appellant prepared his appeal, which was ready for service on 20 April 2015, and lodged the notice of appeal on 27 April 2015. This was served on the respondent judicial authority on 8 May 2015, that is, outside the seven-day time limit.

Appeal

Lord Justice Burnett and Mrs Justice Cox held, clarifying the scope of s. 26(5) EA 2003:

  • The burden of establishing that ‘everything reasonably possible’ was done, rests with the appellant. The court must be satisfied on the balance of probabilities.
  • Any question arising under the test will ordinarily be considered on the papers, applying Part 17.17(b)(i) of the Criminal Procedure Rules (CPR).
  • Applying Part 17.20 CPR, and the contents required in an appeal notice, in a straightforward case, it may be permissible for a short description to be included. However, it is expected that the appellant, or his solicitor, will provide a witness statement, supported by a statement of truth exhibiting relevant documentation. Given the nature of the test, it is necessary that the appellant gives a comprehensive explanation for the entire period of delay.
  • The merits of the underlying appeal have no bearing on the test. The focus is entirely on the reasons why the appeal is late.
  • The test encompasses the personal conduct of the appellant and delay generated by his legal advisors. Mucelli considered.

In the present case, the appeal was out of time:

  • Appeal rights were explained to the appellant.
  • The notice could not have been lodged before the 15 April 2015, when s. 26(5) EA 2003 entered force.
  • The Court would not ‘criticise’ the appellant for the five days following 15 April 2005, before the notice was drafted and ready to be lodged with supporting documentation.
  • Nevertheless, there was no satisfactory reason for the delay following 20 April 2015.

Judicial review and habeas corpus, as an alternative to the statutory appeals mechanism, and R (Navadunskis); R (Klimento) and Mucelli, considered. Appeal dismissed.

Relevant legislation

Sections 26(4) and (5) EA 2003:

26(4) Notice of an appeal under this section must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.

(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.

Prendi (aka Aleks Kola) v The Government of the Republic of Albania [2015] EWHC 1809 (Admin)

Flag_of_Albania_svgOn 24 June 2015, the High Court blocked the extradition of Aleks Kola, in relation to a robbery carried out in Albania in 2000. The Court found that the District Judge had erred, in admitting into evidence the content of an INTERPOL Red Notice that had not been authenticated under the Extradition Act 2003 (EA 2003). Accordingly, the appellant was not, on the balance of probabilities, the individual sought by the Albanian authorities. The judgment is here.

Background

On 13 December 2000, an individual named Leke Prendi was convicted in absentia by a District Court in Pukë and sentenced to 21 years’ imprisonment for murder, armed robbery and weapons offences, committed in Albania in 2000. On 7 February 2005, an INTERPOL Red Notice was issued for his arrest.

In November 2007, INTERPOL issued an “addendum/corrigendum” to the Red Notice. This contained the same photograph included in the original Red Notice and now included purported copies of the fingerprints of Mr Prendi.

Separately, Mr Kola was arrested in July 2013, on an unrelated allegation of common assault in the UK. His fingerprints matched those contained in the Red Notice issued for Mr Prendi, and he was arrested on a provisional warrant in relation to the offences in Albania.

On 17 October 2014, District Judge Coleman held, on the balance of probabilities, that the defendant before him was Mr Prendi. The case was remitted to the Secretary of State.

Appeal

Mr Prendi appealed, on the basis that he was not the person requested and should be discharged, pursuant to ss. 78(4) and (5) EA 2003. Mr Prendi further contended that he would be entitled to a re-trial under s. 85(5) EA 2003.

Lord Justice Aikens and Mr Justice Kenneth Parker held:

  • The District Judge was required to identify whether the person appearing before him was “the person whose extradition is requested” (s. 78(2) EA 2003). The burden of proof is on the requesting state. The standard is the balance of probabilities (ss. 78(4) and (5) EA 2003). The only link between the appellant and Mr Prendi were the facts contained in the Red Notice and the addendum/corrigendum.
  • A threshold question of law applied: in what circumstances may a document be admitted as evidence of the facts stated in it, in extradition proceedings in relation to a category 2 territory on an issue of identity (and ss. 78(3) and (4) EA 2003), when the document concerned has not been authenticated under s. 202(4) EA 2003?
  • The test applied by District Judge Coleman, of whether the Red Notice and the addendum/corrigendum was “a document from a reliable source” was not the correct test under ss. 77 and 202 EA 2003.
  • The test is whether a document, which has not been authenticated under s. 202(3) EA 2003, is admissible as evidence of the facts stated in it, according to the English rules of criminal evidence, applying s. 77(1) EA 2003. R(B) and Friesel applied; ex p Levin and Savvas considered.
  • In limited circumstances, s. 202(5) EA 2003 may be used to admit an unauthenticated statement which does not meet the rules of criminal evidence. The factors set out in ss. 84(3) and 86(3) EA 2003 may be relevant to this assessment.
  • In the present case, even if the INTERPOL National Central Bureau in Tirana was a “reliable source”, that does not prove that the sources of information contained in the Red Notice were reliable. District Judge Coleman erred in admitting the Red Notice as evidence at all.
  • If the Red Notice was correctly admitted as evidence of the facts stated in it, District Judge Coleman still had to consider the weight of those facts to the necessary standard. First, the photograph was not official. Secondly, the provenance of the fingerprints was not demonstrated. Thirdly, the appellant does not share the height of Mr Prendi. Fourthly, the birth date of the appellant was not verified.

Accordingly, the Albanian government has not proved, on the balance of probabilities, that the appellant is Mr Prendi. Appeal allowed.

General Karenzi Karake Fights Extradition to Spain

1080px-Flag_of_Rwanda.svgGeneral Karenzi Karake, the head of the Rwandan National Intelligence and Security Services (NISS), has vowed to fight extradition from the United Kingdom to Spain.

General Karake was arrested in London on 20 June 2015, pursuant to a European Arrest Warrant (EAW) issued by the Spanish authorities. He is accused of:

  • ordering massacres in Rwanda, following the 1994 Rwandan Genocide;
  • genocide, crimes against humanity and terrorism; and
  • ordering the killing of Spanish aid workers in 1997.

General Karake contends that the charges that he faces in Spain are politically motivated.

At a hearing before District Judge Purdy at Westminster Magistrates’ Court, on 25 June 2015, General Karake refused to consent to extradition, following which, a two-day extradition hearing was fixed to commence on 29 October 2015.

General Karake was granted bail, subject to the following conditions:

  • a £1m surety;
  • daily police reporting conditions;
  • restrictions on his residence, to a house owned by the Rwandan High Commission;
  • a curfew between 20:00 and 08:00; and
  • surrender of his passport.

District Judge Purdy, in a judgment reported by the press, said that the full extradition hearing would be “complex” and include “detailed evidence on diplomatic immunity and the agreement under which the UK consented” to General Karake’s entry into the UK.

It is reported that General Karake was originally in the UK to meet the head of MI6. Rwandan President Paul Kagame has condemned the arrest, accusing the UK of “arrogance and contempt”.

Zain Dean Fights Extradition to Taiwan

TaiwanZain Dean will challenge his extradition from Scotland to Taiwan on the basis of Taiwanese prison conditions, according to reports this week.

In July 2012, Mr Dean was convicted of manslaughter, driving under the influence of alcohol, and of committing a hit-and-run offence, in relation to the death of a man in Taipei in 2010. He was sentenced to four years’ imprisonment.

On August 2012, Mr Dean absconded to the United Kingdom, using the passport of a friend. He was arrested by Scottish police on 17 October 2013, after Taiwan signed a memorandum of understanding (MOU) with the UK authorities.

The Edinburgh Sheriff Court ordered Mr Dean’s extradition to Taiwan, to serve his sentence, on 11 June 2014. The Scottish Cabinet Secretary for Justice formally approved the request.

Mr Dean has appealed to the Court of Criminal Appeals in Edinburgh. On 24 June 2015, Court of Appeal judges Lady Paton, Lord Drummond Young and Lady Clark of Calton fixed a hearing to take place in September 2015.

In a written judgment, Lady Paton confirmed that the Court would continue to consider Mr Dean’s appeal, and his contention that he will be subjected to inhumane and degrading conditions in a Taiwanese prison, in breach of Article 3 of the European Convention on Human Rights.

The UK does not maintain a formal extradition arrangement with Taiwan, and the MOU used to formalise Mr Dean’s extradition required careful co-ordination between authorities in the UK and Taiwan.

The MOU is the first of its kind in existence between the two countries, and is particularly significant because the UK has hitherto not recognised Taiwan’s status as a territory for the purposes of extradition.

 

“Flash Crash” Trader Reveals His Defence to Extradition

Philippine-stock-market-boardNavinder Singh Sarao, the British day-trader sought by the United States’ authorities for his involvement in the 2010 US “flash crash”, has disclosed the basis on which he intends to contest extradition. Mr Sarao is facing 22 charges by the US Department of Justice, encompassing wire and commodities fraud, commodities manipulation and ‘spoofing’, totalling £25m. Each count carries a custodial sentence of between 10 and 25 years, or a fine up to $1m. The US complaint is here.

According to the opening note, Mr Sarao is expected to contend at his extradition hearing that:

  • he has been wrongly “scapegoated” for the flash crash;
  • his current imprisonment combined with the pressure to admit guilt created by a plea bargaining system constitutes an abuse of process;
  • he has close ties to the UK;
  • a substantial measure of his conduct occurred in the UK, and the UK is therefore the appropriate forum for dealing with the alleged conduct;
  • extradition would breach Article 3 of the European Convention on Human Rights by exposing him to a “grossly disproportionate sentence of imprisonment”; and
  • his conduct before April 2013 fails to meet dual criminality requirements.

A further bar on health grounds is “unparticularised”, pending receipt of a medical report.

Mr Sarao appeared at Westminster Magistrates’ Court on Thursday 18 June 2015, by video link, from Wandsworth prison. He has been in custody for the last 10 weeks, having been refused bail following a failure to meet his £5m bail security condition, due to a worldwide freezing order imposed on his assets. His two-day extradition hearing is due to commence on 24 September 2015.

Blaj & Ors v Court of Alesd, Romania & Ors [2015] EWHC 1710

untitledThe Administrative Court in Blaj & Others held that first, a ‘conviction’ European Arrest Warrant (EAW) is not invalid where it fails to give the date of conviction and sentence and second, conditions in Romanian prisons do not breach Article 3 of the European Convention on Human Rights (ECHR). Thirdly, in two appeals, extradition was not disproportionate under Article 8 of the ECHR. The judgment is available here.

Blaj & Others was a case of three appeals that were heard together:

  • The appellant in the first appeal, B, was convicted of the offence of death by dangerous driving.
  • The appellant in the second appeal, R, was convicted and sentenced to five years and six months’ imprisonment for grievous bodily harm.
  • The appellant in the third appeal, T, was convicted and sentenced to six years’ imprisonment for attempted murder.

The appellants contended:

  1. B: that his EAW did not provide the date of his conviction and sentence and was therefore invalid.
  2. B, R and T: that there were substantial grounds for believing that there was a real risk that they would be subjected to inhuman or degrading treatment or punishment because of the poor conditions in prisons across Romania. Assurances by Romanian authorities that persons deprived of liberty would provide space exceeding two meters squared (in a semi-open / open regime) or three meters squared (in a closed regime).
  3. B and T: extradition would be disproportionate under Article 8 of the ECHR.

Lord Justice Aikens and Mr Justice Simon dismissed the appeals:

  1. A ‘conviction’ warrant need not obtain the date on which the judgment or sentence has been passed. Only the facts and circumstances of conviction are required, to raise any potential bars to extradition. B’s EAW valid.
  2. Where a person is in a multi-occupancy cell, he has to “dispose” of a minimum of three squared meters of floor space and detainees should be able to move freely between furniture. The test is not three squared meters net of bed and furniture. The European Court of Human Rights (ECtHR) had not condemned Romanian national law setting a two meter square minimum net of bed and furniture and therefore did not breach Article 3 ECHR. T failed to show he would be sent to a prison that would not meet these standards. Regarding B, whether or not he would be detained in closed or semi-open condition, was Article 3 ECHR compliant. The assurance was Article 3 ECHR compliant and did not constitute fresh evidence. Florea [2014] EWHC 2528 (Admin) applied; Ananyev, Othman, and Florea [2014] EWHC 4367 (Admin) considered.
  3. The balancing exercise was carried out. The ‘pros’ and ‘cons’ weighed up carefully and all factors considered. With respect to T, the judge had carried out the appropriate balancing exercise. In both cases, the Article 8 ECHR decision was not wrong.

Kolodziej v Regional Court in Lublin (Poland) [2015] EWHC 1639 (Admin)

pllargeIn a decision of the Administrative Court, an appeal against orders for extradition to Poland on grounds of specialty, and oppression due to passage of time, and the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR) was dismissed. The judgment is here.

Mr Kolodziej was convicted and sentenced to two years and six months imprisonment for theft, criminal damage and burglary, in 2002 and 2003. He contended:

  1. Specialty was breached: an aggregation of his sentence for a prior extradited offence and other offences had occurred.
  2. Oppression due to passage of time.
  3. The consequences of his extradition on his wife and daughter violated Article 8 of the ECHR.

The Honourable Mr Justice Cranston held:

  1. The Regional Court in Lublin, the judicial authority, did not breach specialty provisions through the aggregation of sentences. The appellant had been convicted and sentenced on the current offences prior to his earlier extradition. Mr Kolodziej participated at his hearing and was represented, and exercised his specialty rights.
  2. Delay flowed from the appellant’s conduct. Mr Kolodziej failed to maintain contact with the authorities.
  3. Extradition did not have exceptionally serious consequences for his family outweighing the public interest. Celinski considered.