Scottish court blocks extradition of man to UAE on Article 3 & 6 concerns

A Scottish court has blocked the extradition of a 64-year old man wanted by the UAE where he has been sentenced in absentia to 12 months imprisonment for allegedly embezzling $345,000. Garnet Black is said to have taken the money from the bank account of M&M Militzer & Münch LLC, an international logistics company based in Dubai, where he worked as managing director. He says the allegations, made by his former son-in-law, are false and intended to pressure his daughter to return to the UAE, after she fled the son-in-law with their child due to his alleged violence and abuse.

In his ruling, Sheriff Tom Walsh QC found that the UAE had not satisfied the statutory pre-requisite to extradition that it demonstrate free legal aid would be guaranteed to Mr Black if extradited. In addition, Sheriff Walsh found that there was a real risk Mr Black’s Article 3 right against inhuman treatment and Article 6 right to a fair trial may be violated, but rejected the argument that his article 5 right to freedom was at risk of violation.

Key to these findings was that, if extradited, Mr Black was likely to be housed in “the squalid, unhygienic, and overcrowded conditions of Bur Dubai Police Station”, without adequate medical provision, and the significant degree of influence his son-in-law was likely to have over local police as a high-ranking Emirati. In addition, there was no guarantee that Mr Black would be in physical condition to defend himself, and would struggle to do so in any event as a non-Arabic speaker without the guarantee of free legal representation.

Konecny loses appeal against extradition to the Czech Republic

Mr Konecny appealed against his extradition from the UK to the Czech Republic on a conviction EAW.  He had been convicted in his absence in 2008 of three fraud offences and sentenced to 8 years’ imprisonment. The Administrative Court dismissed his appeal, in Konecny v District Court Czech Republic [2017] EWHC 2360 (Admin).

Passage of time

It was agreed that Mr Konency was not a fugitive and was unaware of his conviction and sentence in the Czech Republic until his arrest in 2017.  He submitted that the ‘passage of time’ the court should consider under s14(b) EA 2003 started running from the date of the commission of the first offence, namely November 2004.  He also submitted that extradition would be unjust due to passage of time because it appeared that the Czech authorities had lost documents that demonstrated his innocence.

The court held that the operative date was when the appellant became unlawfully at large, which was an objective state to which his knowledge was irrelevant: “Accordingly, in my judgment, the fact that the Appellant was unaware of his conviction and sentence in the Czech Republic until 2017 is irrelevant to the question of when he became unlawfully at large. In accordance with Wiszniewski he became unlawfully at large upon the date when a lawful sentence was imposed upon him in respect of his convictions for fraud. The date when that sentence was imposed was 12 May 2008.

The court also held that extradition would not be unjust because “I am entitled to infer and do infer that the evidence presented to the court justified the convictions. Upon his return to the Czech Republic the Appellant can exercise his right to have a re-trial if so advised and I must assume or infer that such a trial will be fair within Article 6 ECHR. That being so the production of the Appellant’s documents will, if he is correct, result in his acquittal. If they are not adduced in evidence the reason for that state of affairs will be examined critically and the Appellant’s right to a fair trial respected.”

Neither did the effects of extradition reach the high bar necessary to show oppression.  The effects of delay were best dealt with under Article 8.

Article 8 ECHR

The District Judge was entitled to treat the Czech authorities’ description of Mr Konecny as a “particularly dangerous recidivist” as a factor in favour of extradition despite his good character and employment in the UK since 2007.  The lengthy sentence and right to a retrial also favoured extradition.  The delays in issuing the EAW in the Czech Republic (2013) and certifying it in the UK (2017) were unexplained, troubling and “a powerful factor militating against extradition” but ultimately it could not be said that the District Judge was wrong to find that his Article 8 rights to a private and family life did not outweigh the public interest in extradition.