Kotic v District Court of Bydgoszcz, Poland [2015] EWHC 2907 (Admin)

2000px-flag_of_poland_1928-1980-svgOn 15 July 2015, in a decision reported in November 2015, the Queen’s Bench Division of the High Court allowed an appeal, in part, against an order for extradition, pursuant to a ‘conviction’ European Arrest Warrant (EAW), issued by Poland to the United Kingdom to Poland, concerning Wojciech Kotic.

Mr Kotic was convicted in Poland of two offences. For the first offence, the High Court held that the dual criminality test had not been satisfied, and a discharge was ordered. However, the High Court dismissed Mr Kotic’s appeal with respect to the second offence. Mr Kotic had appealed in relation to the second offence on dual criminality grounds, and under Article 8 of the European Convention on Human Rights (ECHR).

The judgment is available here (paywall).

First Instance Decision of District Judge Ikram, 15 April 2015

On 9 April 2014, a ‘conviction’ EAW was issued for Mr Kotic’s arrest. This was certified by the UK National Crime Agency on 28 July 2014. The EAW particularised the two offences of which Mr Kotic was convicted in Poland.

With respect to the first offence, the EAW stated that Mr Kotic was convicted of “availing the renewable credit on his personal account”, in the period between 29 February 2000 and 31 March 2000, “with the purpose to obtain material benefits”, obtaining “money under false pretences”.

With respect to the second offence, the EAW stated that Mr Kotic was convicted of having, in the same period but with respect of a separate bank account and bank card: “made 93 withdrawals from automated teller machines (ATMs) and payments at shops and at fuel stations, obtaining under false pretences money in the total amount of 23.563,29 zloty”. Both offences were described as “continuing offences” during the period concerned.

For these two offences, Mr Kotic was sentenced to one year and six months’ imprisonment. On 15 April 2015, District Judge Tan Ikram ordered the extradition of Mr Kotic to Poland, in respect of both offences.

Mr Kotic appealed on two grounds:

  1. The offences for which sentence for Mr Kotic’s extradition had been sought did not constitute extradition offences because they had not met the ‘dual criminality’ test.
  2. There would be a disproportionate interference with his rights under Article 8 ECHR and the rights of his partner and children.

Permission to appeal was granted by Ouseley J on 19 May 2015, on the first ground. He refused permission to appeal on the Article 8 ECHR issue, “save if an appeal on the dual criminality issue were to be allowed in respect of one, but not both, of the charges.” (para 4 of the judgment).

Decision of the Queen’s Bench Division, 15 July 2015

Lord Justice Aikens and Mrs Justice Nicola Davies, sitting at the Queen’s Bench Division of the High Court, held:

  1. The difficulty with the first offence, for dual criminality purposes, is that the wording makes it clear that Mr Kotic availed himself of “the renewable credit on his personal account number”. It is possible that he persuaded a cashier that he had a renewable credit facility when, in fact, that facility had been exhausted. However, this was not established beyond reasonable doubt on the wording of the terms of the EAW. Accordingly, the dual criminality test was not made out, to the criminal standard.

With respect to the second offence, there was nothing in the offence that indicated any kind of credit facility available. Moreover, the wording of the offence stated that Mr Kotic had “no available funds” on the account that is identified. The wording of that offence goes on to state that Mr Kotic managed to make 93 withdrawals and made purposed payments, “obtaining under false pretences money”. The wording “obtaining under false pretences money” is equivalent to obtaining dishonestly. The words “false pretences” must mean that Mr Kotic was doing something which he knew to be false and that he was pretending that he was entitled to obtain this money or whatever it was that he obtained at the shops or the fuel stations. The inescapable inference from those words was that Mr Kotic was dishonest, and that the 93 withdrawals would constitute the offence of theft for the purposes of an English offence.

  1. Because the appeal was allowed with respect to the first offence, this triggered the permission Ousely J gave with respect to Article 8 ECHR. The findings of District Judge Ikram were not challenged: Mr Kotic was a fugitive when he left Poland; the offences were serious; he has strong family connections in the UK but does not contribute financially to his youngest child, who is a minor; and there was no “culpable delay” on the part of the judicial authority. The judge, in a decision that pre-dated the Celinski judgment, nonetheless balanced factors on either side. The decision with respect to dual criminality did not change this balance; the second offence was a serious one, which was described as “continuing offences”, carried out over 6 months, involving a large number of withdrawals from ATMs and payments to shops and fuel stations.

Appeal dismissed in respect of Article 8 ECHR. Discharge ordered with respect to the first offence. Extradition order to remain in force with respect to the second offence.

FIFA Update: Eugenio Figueredo is Extradited to Uruguay not the United States

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On 12 November 2015, it was reported that Eugenio Figueredo, the former Vice President of the South American Football Confederation (CONMEBOL), and former Vice President of FIFA, had agreed to extradition to his home country of Uruguay. The Swiss Federal Office of Justice press report is here.

 

On 24 December 2015, Mr Figueredo was extradited to Uruguay. A report is here.

Background

On 13 October 2015, the Uruguayan embassy in Bern, Switzerland, submitted a formal extradition request to the Swiss Federal Office of Justice (FOJ) for Mr Figueredo. The Uruguayan embassy provided further information to the FOJ on 3 November 2015.

Mr Figueredo is alleged to have received bribes worth millions of dollars from a Uruguayan sports marketing company in connection with the sale of marketing rights to the Copa América tournaments in 2015, 2016, 2019 and 2023. He is also alleged to have acquired US citizenship fraudulently by submitting forged medical reports in 2005 and 2006.

FOJ Approve Extradition Request, 12 November 2015

On 12 November 2015, the FOJ approved Mr Figueredo’s simplified extradition to Uruguay, albeit subject to the resolution of priority between the Uruguayan and the equally valid US request. The FOJ stated that:

“It will be for the US authorities to state whether or not they agree to Uruguay being given priority. If the US authorities do not agree, the issue will be decided by the FOJ.”

The FOJ had previously approved Mr Figueredo’s extradition to the US, on 17 September 2015. Mr Figueredo lodged an appeal against the ruling with the Federal Criminal Court. However, it would appear that this was unsuccessful.

Extradition, 24 December 2015

Mr Figueredo was extradited to Uruguay on 24 December 2015. He is currently being held in detention while he awaits trial at an unspecified date, rather than house arrest, despite his lawyer’s request for the latter.

US Prosecutors to Seek Extradition for Cancer Drug Customs Conspiracy

800px-Flag_of_the_United_States.svgOn 10 November 2015, it was reported that prosecutors in the United States are planning to request that the Canadian and British governments extradite officials of the online pharmacy, CanadaDrugs.com, in connection with the alleged smuggling of $78 million worth of mislabelled, unapproved and counterfeit cancer drugs into the US to sell to doctors. The report is here.

According to the report, fourteen companies and individuals from Canada, the United Kingdom, and Barbados, and the US are accused of participating in the alleged conspiracy that involved falsifying customs declarations and shipments from the UK.

CanadaDrugs.com Ltd., the internet pharmacy based in Winnipeg, Canada, and its CEO, Kristjan Thorkelson, are accused of leading the conspiracy, aided by a subsidiary in the UK, River East Supplies Ltd., and two subsidiaries in Barbados, Rockley Ventures Ltd. and Global Drug Supply Ltd.

The medicines named in the criminal indictment are mainly drugs that treat cancer or the effects of chemotherapy. Nearly all of the drugs are legal in the US when sold by manufacturers and marketers approved by the Food and Drug Administration (FDA).

US officials will seek assistance through extradition treaties to detain Mr Thorkelson, other officers working for CanadaDrugs Ltd., and their representatives in the UK, Assistant U.S. Attorney Chad Spraker stated in a court filing.

“The United States anticipates that service through the foreign governments will take place before the proposed initial appearance date during the week of January 11, 2016,” Mr Spraker stated.