England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 May 2010

1. MR JUSTICE KEITH: On 10 February 2010, the appellant, Peter Ruzicka, was arrested pursuant to a European Arrest Warrant issued by the District Court of Nitra, Slovakia on 24 October 2009. An extradition hearing took place on the day following his arrest at the City of Westminster Magistrates' Court. Although Mr Ruzicka did not consent to his extradition, no issues were raised at the hearing in support of any contention that he should not be extradited. He was ordered to be extradited to Slovakia.
2. The warrant stated that the offence which Mr Ruzicka was supposed to have committed was what in our law would be an offence of burglary. He was supposed to have climbed over a fence surrounding a workshop where cars were repaired, and gone into the office where he allegedly stole a deposit box containing over €2,800 in cash, various bank cards and some documents relating to the workshop's business. The offence was punishable by up to three years' imprisonment.
3. Mr Ruzicka lodged an appeal against his extradition. The grounds of appeal asserted that Mr Ruzicka had been informed that the charges against him had been "definitively discontinued", and for that reason his extradition should not have been ordered to go ahead since the warrant had been issued in bad faith, and his extradition would constitute an abuse of process. When Mr Ruzicka's appeal came before the Divisional Court on 27 April, Mr Ruzicka elaborated that point by saying that the person whose workshop he had allegedly burgled "did not want the matter pursued", and in any event only €920 were outstanding. However, it was in the course of Mr Ruzicka addressing the court on this topic that a far more fundamental point emerged, which was that Mr Ruzicka had already been convicted and sentenced for the offence. He produced a number of documents which according to the interpreter showed that he had indeed been convicted of the offence on 31 July 2009, and had been sentenced to 14 months' imprisonment.
4. The significance of that is this. Slovakia has been designated a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, Mr Ruzicka's extradition is governed by Part I of the Act, and the warrant issued by the District Court of Nitra for Mr Ruzicka's arrest was a Part I warrant. Part I warrants take two forms. One form is colloquially called an accusation warrant. That is a warrant which is issued "with a view to [the person's] arrest and extradition ..... for the purpose of being prosecuted for the offence [specified in the warrant]": see section 2(3)(b) of the Act. The information which a warrant of that kind must contain is that provided for by section 2(4) of the Act. The other form of warrant is one which is colloquially called a conviction warrant. That is issued where someone "is alleged to be unlawfully at large after conviction of an offence specified in the warrant ..... with a view to his arrest and extradition ..... for the purpose of being sentenced for the offence or serving a sentence of imprisonment ..... in respect of the offence": see sections 2(5)(a) and 2(5)(b) of the Act. The information which such a warrant must contain is that provided for by section 2(6) of the Act.
5. Accordingly, if the documents produced by Mr Ruzicka did indeed show that he had already been convicted of the offence, it looked as if the warrant which should have been issued was a conviction warrant. Since the warrant which had been issued was an accusation warrant, the question arose whether the warrant which had been issued was valid. Although this point was not taken at the extradition hearing at the magistrates' court, an issue relating to the validity of a warrant can be taken on appeal because the jurisdiction of the magistrates' court to order someone's extradition is dependent on the validity of the warrant: see, for example, Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid [2007] 1 WLR 124. In these circumstances, counsel for the requesting authority - Miss Rebecca Hill who has continued to represent the requesting authority today - sought an adjournment to seek clarification of the position from the Slovakian authorities. The court agreed, and the hearing of Mr Ruzicka's appeal was adjourned for a week.
6. Clarification of the position from the Slovakian authorities was important because a failure to use the appropriate warrant is fatal to a request for extradition. That is the effect of what Lord Hope said in Office of the King's Prosecutor, Brussels v Cando Armas [2006] AC 1 at [28]:

"If the warrant does ..... not conform to the requirements set out in section 2, it will not be a Part I warrant within the meaning of that section and Part I will not apply to it."

In such circumstances, any order for extradition founded upon it is liable to be quashed.

7. However, although under our law the conviction and sentence of an accused person means that their trial is over, in some countries the criminal trial is a continuing process. Thus, the agreed effect of the evidence in Calderelli v Court of Naples [2008] UKHL 51 was that the conviction and sentence of an accused person in the court of first instance was neither final nor enforceable until the criminal appeal process had been concluded. Under Italian law, the trial of an accused person was not to be regarded as "concluded" until his conviction became final. Since Mr Caldarelli had appealed against his conviction and sentence to the Court of Appeal in Naples, the House of Lords held that his conviction and sentence were neither final nor enforceable, and that the appropriate arrest warrant in his case had been an accusation warrant.
8. It was against that background that Mr Ruzicka's appeal was re-listed before Nicol J on 6 May. Since further information had not been received from the Slovakian authorities, the hearing of the appeal was adjourned for two weeks. Nicol J ordered the requesting authority to file certified translations of the documents which had been produced by Mr Ruzicka as well as a witness statement setting out their "understanding of the position". Certified translations of the documents produced by Mr Ruzicka have now been provided, and they confirm what the court was told when Mr Ruzicka first produced them.
9. The documents show that on 29 July 2009 he had been summonsed by the public prosecutor to be interviewed. We do not know what happened then, but it was only two days later, on 31 July 2009, that he was convicted, sentenced to 14 months' "unconditional imprisonment" in a low-security prison, and ordered to pay compensation. The document in which his conviction was recorded informed him of his and other parties' right to appeal within eight days of the date of service of the order of 31 July 2009. The document continued as follows:

"If an authorised party issues an appeal against a court order the judge shall commence main proceedings. If the appeal is submitted within the time allocated and is not withdrawn before the start of the main proceedings the court order shall be annulled upon commencement of the main oral proceedings. If no appeal is brought within the time allocated, the court order shall come into force and effect upon expiry of the time allocated for submission of the appeal. If the appeal is withdrawn after being brought, the court order shall come into force and effect on the date of withdrawal of the appeal."

10. The short time which elapsed between when Mr Ruzicka was summonsed to be interviewed and the date of his conviction, together with the reference to the judge commencing "main proceedings" if an appeal was lodged, suggests that it was a very summary procedure which resulted in Mr Ruzicka's conviction, and that his real trial, if he disputed the charge, would then proceed, but that he had to lodge an appeal for that to happen. Since Mr Ruzicka's conviction and sentence would be annulled from the beginning of the hearing of the appeal if an appeal was lodged, it looks as if the conviction could properly be described - as Elias LJ did in the course of argument - as "a contingent one" depending on whether he elected, when he was served with the order of his conviction, to file an appeal.
11. All of that is borne out by an e.mail from the judge of the District Court of Nitra sent last Monday, 17 May, to the Crown Prosecution Service. It states that the order of 31 July 2009 was not served on Mr Ruzicka until 24 April 2010. On 29 April 2010 Mr Ruzicka "protested" against the order. That "protest", which the e.mail described as a "remedial measure", was received by the District Court of Nitra within what the e.mail said was "the period stipulated by law", as a result of which "the criminal order" - which I assume was a reference to the order containing Mr Ruzicka's conviction and sentence - "did not become valid". The e.mail went on to state that a "main hearing where the accused can protect his rights" - which I take to be his full trial - would take place.
12. This e.mail therefore shows two things. First, Mr Ruzicka's response to the service on him of the order of 31 July 2009 was treated by the District Court of Nitra as the submission by him of an appeal from that order. Secondly, the submission by him of such an appeal was treated by the District Court of Nitra as causing his conviction and sentence to cease to be valid. That is entirely consistent with what the order of 31 July 2009 stated would happen if Mr Ruzicka exercised his right of appeal within the stipulated time.
13. On these facts, it is plain that his conviction and sentence on 31 July 2009 was not a final determination of the criminal process. It would have been if he had failed to appeal within eight days of being served with the document setting out his conviction and sentence, but until then it was neither final nor enforceable. That was the conclusion which the Divisional Court reached in Usti Nad Labem Regional Court, Czech Republic v Janiga [2010] EWHC 463 (Admin) on a similar scheme in the criminal process of the Czech Republic.
14. It follows that in my opinion the European Arrest Warrant issued in Mr Ruzicka's case was in the correct form. There are no bars to his extradition. I would dismiss this appeal.
15. LORD JUSTICE ELIAS: I agree.
16. MISS HILL: There is a residual matter which is that, as you commented in judgment, on the last occasion before the court Mr Justice Nicol directed a translation of documents produced by the defendant. Those have been translated at the Crown Prosecution Service's own cost. Ordinarily, obviously documents would be translated at the defendant's costs, documents that he relies upon. Assistance with interpretations are ordinarily funded by the court. I understand the interpreter is paid for by the court. I am instructed to apply for an order that the court bear the cost of that translation which we willingly facilitated. In some respects it seems uncomfortable that we should be translating a document provided by the defence. And further on the date that it was ordered Mr Ruzicka had in fact lodged his appeal and that is something of which we were not aware.
17. LORD JUSTICE ELIAS: No. I see why you make the application. It would be inappropriate, not least you come here having to justify the warrant which, on its face, was not all it appeared to be. That has given rise to the difficulties.