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Case No. CO/1158/2013 
Neutral Citation Number: [2013] EWHC 560 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 21 February 2013
 
B e f o r e: 

MR JUSTICE MITTING
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Between: 
FRITS VAN DER KRAMER 
Claimant

v 

MARIANNE CAPELLE FEDERAL MAGISTRATE IN THE FEDERAL PROSECUTION OFFICE BELGIUM 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Ms S Barnes (instructed by Kaim Todner Solicitors) appeared on behalf of the Claimant 
Ms R Davidson (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE MITTING:  A conviction European arrest warrant was issued by a Magistrate in the Federal Prosecution Office in Brussels on 8 July 2009.  It was certified by SOCA on 31 October 2011.  The appellant was arrested on 23 April 2012.  After a contested hearing his extradition was ordered by District Judge Purdy on 29 January 2013.  
2.	His extradition was sought to serve a term of three years' imprisonment imposed for offences of drug trafficking, and belonging to a criminal organisation, said to have been committed between 1 September 2003 and 21 April 2004 in Antwerp.  The European arrest warrant recites that the judgment was "rendered in a defended action" and was therefore not given in the appellant's absence.  
3.	The information supplied by the requesting authority has been somewhat confused.  However, on the basis of that information, as subsequently clarified, and on the facts found by District Judge Purdy, the basic facts are not now in dispute.  The appellant was convicted in his absence by a First Instance Court on 8 July 2005.  Other defendants were convicted in their presence.  The prosecutor appealed against part of the sentence imposed on the appellant contending that in his case, as in the case of other defendants, the confiscation order was inadequate.  Other defendants also appealed.  
4.	The Court of Appeal in Antwerp heard the appeal in the appellant's absence and handed down its judgment on 6 June 2008.  That court allowed the prosecutor's appeal against the confiscation order, but also determined, contrary to the findings of the First Instance Court, that the appellant was not a ringleader in the drug importation, or the criminal organisation, and so reduced his sentence from five years to three.  On the findings of District Judge Purdy the appellant did not deliberately absent himself either from his original trial or from that appeal.  His absence was due simply to the fact that his whereabouts were unknown and consequently he had not been served with notice of the proceedings.
5.	The appellant was arrested by Dutch police on 30 August 2008 at The Hook of Holland.  It seems that he was arrested pursuant to a European arrest warrant issued by Belgium.  He was released by the Dutch police.  However, his address was identified, the Belgian authorities were notified of it and they served on him, at that address, notice of the outcome of the appeal handed down on 6 June 2008, which itself, according to the requesting state, referred to the conviction at first instance on 8 July 2005.
6.	Under Article 187 of the Belgian Code of Criminal Procedure an accused, who is convicted in his absence, may lodge an application to set aside the judgment within 15 days of the date on which it was served on him.  Likewise Article 208 provides that:
"A judgment on appeal delivered in absentia may be challenged by means of an application to set aside made under the same procedure and within the same time‑limits as a judgment delivered in absentia by the Criminal Court." 
7.	In October 2008 the appellant, having been served with notice of the decision of the Appeal Court delivered in absentia, gave notice of his intention to set aside the decision of the Appeal Court.  It is not clear from the documents, which the requesting authority has provided, in precisely what terms the appellant was notified of his conviction at first instance in absentia on 8 July 2005.
8.	Miss Davidson for the requesting authority, however, points out that both of the statements served in support of the appellant's attempt to resist extradition, by lawyers who acted for him, do not suggest that he was not notified of that conviction in absentia.  The lawyers who have studied the criminal case file held by the Belgian authorities have concluded that the Belgian authorities made a mistake in failing to treat his application as being to set aside the judgment of the court at first instance, rather than to set aside the judgment on appeal in his absence.  
9.	Be that as it may, he co‑operated with the Belgian authorities by agreeing to be interviewed by Belgian police and was interviewed, and, having given notice of his wish to set aside the judgment of the Appeal Court of 6 June 2008, participated personally and by his lawyer in the re‑hearing of his appeal, which took place in 2009 and resulted in a judgment handed down on 2 April 2009.  In that judgment the Court of Appeal in Antwerp upheld all of the rulings made by the same Court of Appeal on 6 June 2008.
10.	In a witness statement prepared for the purpose of the extradition proceedings the appellant said that his lawyers had requested that two of the witnesses, whose evidence against him was relied upon by the prosecutor, should be called to give evidence so that they could be cross‑examined and their evidence tested.  However, for different reasons they were unavailable and so the Appeal Court decided that they should not be called.  It is not controversial that Belgian law provides that the decision of an Appeal Court becomes final unless challenged by a further appeal to the Court of Cassation within 15 days.  Accordingly, and for the first time in the proceedings, the appellant's conviction became final within 15 days of 2 April 2009, namely on 17 April 2009.
11.	In the light of the history that I have recited, which is in the main uncontroversial, it is apparent that at no stage in the proceedings resulting in the final conviction of the appellant has he ever had an effective opportunity to challenge the evidence against him by cross‑examination.  I do not, however, understand the proceedings to have prevented him from giving evidence on his own account, or from calling witnesses at the final appeal hearing had he chosen to do so.  The Appeal Court certainly took into account the answers that he had given to the police in the interview, to which I have referred.  On the face of it, therefore, it would seem that his full rights under Article 6 ECHR and Article 47 of the Charter have not been given full effect to by the Belgian courts.
12.	The principal issue, which the District Judge had to decide, was, however, narrower than that.  It arose under section 20 of the Extradition Act 2003, which provides: 
"20 Case where person has been convicted.
 (1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence. 
 (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21. 
 (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial. 
 (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21. 
 (5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. 
 (6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21. 
 (7) If the judge decides that question in the negative he must order the person’s discharge."
13.	The requesting authority submitted that the appellant had been convicted in his presence for the following reason: a trial under the Belgian criminal justice system is a continuous process beginning with proceedings at first instance and ending when a judgment given on appeal becomes final.  In this case the conviction of the appellant did not become final until 15 days after the judgment of the Court of Appeal in Antwerp was handed down on 2 April 2009.  He was present at that appeal and represented by a lawyer.  He had the opportunity of advancing any case that he wished at that stage.  The fact that witnesses that he requested were not called to give evidence does not prevent the appeal from being an effective part of the criminal process.  Because he was present during it he was convicted in his presence.  District Judge Purdy accepted the thrust of those arguments and concluded that the appellant had been convicted in his presence.  The principal ground of appeal is that the District Judge was wrong to reach that conclusion. 
14.	Miss Barnes submits that because the appellant did not in practice have the opportunity to challenge effectively the evidence given against him by cross‑examining the witnesses who had done so, so he has never had the opportunity to participate in a trial resulting in a conviction.  In essence, her submission is that a process which deprives him of that right, and is not compliant with Article 47 of the Charter or Article 6 of the Convention, cannot result for the purposes of section 20 in a conviction in his presence.
15.	Miss Davidson for the requesting authority submits that that submission is inconsistent with binding United Kingdom case law.  She relies, first of all, on Caldarelli v Court of Naples, Italy  [2008] UKHL 51.  In that case the appellant was represented by lawyers at his trial at first instance, but deliberately absented himself from that trial.  He then fled Italy.  
16.	An appeal against his conviction was pending.  Under Italian law a defendant is not regarded as convicted until his conviction becomes final.  His conviction would only become final once his appeal had been determined.  In those circumstances the House of Lords upheld an order for the appellant's extradition on an accusation warrant.  Lord Mance at paragraphs 45 and 47 recognised that that conclusion might sit uncomfortably with section 20(5): the right of a person entitled to a retrial, or on appeal to a review amounting to a retrial, who has been convicted in his absence where he has not deliberately absented himself from his trial.  However, in the interests of clarity Lord Mance was content to accept that possible anomaly:  an anomaly which arose because the right of appeal in Italy appears to have been confined to a right of review, rather than a re‑hearing. 
17.	Miss Barnes draws attention to the fact that in the Office of the King's Prosecutor, Brussels v Armas [2005] UKHL 67 the Belgian warrant on which the appellant was sought was a conviction warrant, even though he had been convicted in his absence and, as we now know, under Belgian law that conviction does not become final until it has been served upon him.  However, that point does not appear to have been made clear to the House of Lords because, as Lord Scott of Foscote noted at paragraph 58, it might be necessary for the Senior District Judge, to whom the case was to be remitted:
"...to enquire into the question whether under Belgian law the default judgment took effect automatically, or whether it first had to be served on the absent defendant..." 
18.	Miss Davidson also relies on the decision of the Divisional Court in Atkinson and Binnington v Supreme Court of the Republic of Cyprus [2009] EWHC 1579 (Admin) in which Collins J, giving the judgment of the court, observed that: 
"A trial is the legal process whereby guilt or innocence is to be decided. In my judgment, that must mean the process which results in a final determination. So long as there is a possibility of an appeal against the decision of the first instance court acquitting a person, there is no finality and the trial process has not come to an end. Thus "trial" in section 20(3) of the Act should be construed accordingly and it will be necessary to investigate the system in the requesting State."
19.	In my judgment those words are apposite here as is the outcome of the appeal in Caldarelli.  
20.	I am satisfied, as was the District Judge, that the process which resulted in the appellant's final conviction, 15 days after the appeal which he attended, was a process which resulted in his conviction in his presence.  The fact that there may have been shortcomings in the part of the process during which he was present, even if they put the Belgian state in breach of its duties under Article 6 ECHR and Article 47 of the Charter, do not mean that he was not convicted in his presence.  If he has any further complaint about the appeal process, then that must be raised against the Belgian authorities in Strasbourg or in Luxembourg.  It is not a ground for a requested state to refuse to extradite him, unless under UK law extradition is prohibited by section 21.  
21.	Section 21(1) requires a UK court to decide whether a person's extradition would be compatible with Convention rights.  Section 21(2) requires the judge who decides that question in the negative to order the requested person's discharge.  A secondary ground of appeal in this case is that the appellant's rights under Article 6 would be infringed if he were to be extradited to Belgium.  That argument is in principle wrong.  He does not face further legal proceedings in Belgium, to which Article 6 might apply, he faces imprisonment pursuant to legal proceedings which have taken place.  Accordingly if he has a complaint under the Convention it is a complaint which can only arise under Article 5.  
22.	It was thought before Othman v the United Kingdom [2012] 55 EHRR 1 that Article 5 did not apply in an expulsion case, but the Strasbourg court in Othman made the position clear at paragraph 233:  
233.  The Court therefore considers that, despite the doubts it expressed in Tomic, it is possible for Article 5 to apply in an expulsion case. Hence, the Court considers that a Contracting State would be in violation of Article 5 if it removed an applicant to a State where he or she was at real risk of a flagrant breach of that Article. However, as with Article 6, a high threshold must apply. A flagrant breach of Article 5 would occur only if, for example, the receiving State arbitrarily detained an applicant for many years without any intention of bringing him or her to trial. A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving State, having previously been convicted after a flagrantly unfair trial." 
23.	Miss Barnes does not submit that the appellant's trial was flagrantly unfair.  She is right not to do so.  Whatever shortcomings there may have been in the process they do not give rise to a flagrant breach of his rights under Article 5.  Accordingly, and for those reasons, I dismiss this appeal and uphold the judgment of the District Judge.  Thank you for very well presented skeletons and oral argument for which I am grateful. 
24.	MS BARNES:  To the extent I need to, may I ask for the usual order in respect of the legal aid taxation? 
25.	MR JUSTICE MITTING:  Do you want an order for public funding assessment of the appellant's cost?    
26.	MS BARNES:  Yes, I am very grateful.

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