London, NW1 5BR
B e f o r e :
| COURT OF MILAN (ITALY)
||Issuing Judicial Authority
|- and –
MICHAL KONRAD HERBA
Mr Hepburne Scott (instructed by One Legal Services) appeared for the Requested Person
Crown Copyright ©
(EA 2003) applies, as amended.
for temporary transfer etc
(1) This section applies if—
(a) a Part 1 warrant is issued which contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution for offence in category 1 territory), and
(b) at any time before or in the extradition hearing, the appropriate judge is informed that a request under subsection (2) or (3) has been made.
(2) A request under this subsection is a request by a judicial authority of the category 1 territory in which the warrant is issued ("the requesting territory")—
(a) that the person in respect of whom the warrant is issued be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.
(3)A request under this subsection is a request by the person in respect of whom the warrant is issued—
(a) to be temporarily transferred to the requesting territory, or
(b)that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.
(4) The judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable the person (in the case of a request under subsection (2)) or the authority by which the warrant is issued (in the case of a request under subsection (3)) to consider whether to consent to the request.
An adjournment under this subsection must not be for more than 7 days.
(5) If the person or authority consents to the request, the judge must—
(a)make whatever orders and directions seem appropriate for giving effect to the request;
(b)order further proceedings in respect of the extradition to be adjourned for however long seems necessary to enable the orders and directions to be carried out.
(6)If the request, or consent to the request, is withdrawn before effect (or full effect) has been given to it—
(a)no steps (or further steps) may be taken to give effect to the request;
(b)the judge may make whatever further orders and directions seem appropriate (including an order superseding one made under subsection (5)(b)).
(7) A person may not make a request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the person has already given consent to a request under the corresponding paragraph of subsection (2) in respect of that warrant (even if that consent has been withdrawn).
(8)A person may not make a further request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the person has already made a request under that paragraph in respect of that warrant (even if that request has been withdrawn).
(a)a request under subsection (2) or (3) is made before a date has been fixed on which the extradition hearing is to begin, and
(b)the proceedings are adjourned under this section,
the permitted period for the purposes of fixing that date (see section 8(4)) is extended by the number of days for which the proceedings are so adjourned.]
• Section 2(4) c EA 2003 Validity of the Warrant
• Section 21(A) EA 2003 Human Rights, Articles 6&8 ECHR
• Abuse of Process
Section 2 EA 2003 – Validity of the warrant
• The description must include when and where the offence is said to have happened
• The description must include what involvement the person named in the warrant had
• The person sought by the warrant needs to know what offence he is said to have committed to have an idea of the nature and extent of the allegations against him in relation to that offence
"It is clearly essential that the description in the warrant of the facts relied upon as constituting an extradition offence should identify such an offence with a degree of particularity so that the individual to whom it relates may understand the essential nature of the allegations made against him. However, the authorities include warnings against imposing too onerous a burden in this regard on requesting judicial authorities. Ms Dobbin on behalf of the issuing judicial authority has drawn our attention to the following passage in the speech of Lord Hope in Dabas at paragraph 18: "These provisions show that the result to be achieved was to remove the complexity and potential for delay that was inherent in the existing extradition procedures. They were to be replaced by a much simpler system of surrender between judicial authorities. This system was to be subject to sufficient controls to enable the judicial authorities of the requested state to decide whether or not surrender was in accordance with the terms and conditions which the Framework Decision lays down. But care had to be taken not to make them unnecessarily elaborate. Complexity and delay are inimical to its objectives." I would accept that the requirement for particularisation must be placed in the context of a legislative scheme designed to eliminate undue complexity.
20 Contrary to the submission of Mr Summers, I do not consider that it is necessary in the present case to provide particulars as to the precise manner in which the killing was carried out. This may well not be known to the prosecuting authorities, particularly where, as here, the body was not recovered for over a year. Furthermore, I do not consider that in the present case it is necessary that the warrant particularise the precise acts performed by the appellant in pursuance of the alleged joint enterprise. It is enough that the joint enterprise alleged is described in the terms of the warrant and that he is alleged to have acted as part of that joint enterprise. In contrast with Von der Pahlen and Vey , the description in the warrant in the present case, in my judgement, encapsulates the allegations against the appellant in a concise way and adequately conveys to the appellant sufficient particulars of the murder and robbery of which he is accused
SECTION 21 EA 2003 - ECHR Challenges
ARTICLE 6 ECHR – Right to a fair trial
"1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
to have adequate time and the facilities for the preparation of his defence;
to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
"Where reliance is placed on Article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state…"
"What constitutes a "flagrant" denial of justice …the use of the adjective is clearly intended to impose a stringent test of unfairness going beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article if occurring within the Contracting State itself…In our view, what the word "flagrant" is intended to convey is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article."
258. It is established in the Court's case law that an issue might exceptionally be raised under art.6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v United Kingdom  and has been subsequently confirmed by the Court in a number of cases.
259. In the Court's case law, the term "flagrant denial of justice" has been synonymous with a trial which is manifestly contrary to the provisions of art.6 or the principles embodied therein. Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:
• conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge ;
• a trial which is summary in nature and conducted with a total disregard for the rights of the defence;
• detention without any access to an independent and impartial tribunal to have the legality the detention reviewed;
• deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country.
260. It is noteworthy that, in the 22 years since the Soering judgment, the Court has never found that an expulsion would be in violation of art.6.
Article 8 ECHR - Right to respect for private and family life
Article 8 provides:-
i. Everyone has the right to respect for his private and family life, his home and his correspondence.
ii. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals or for the protection of the rights and freedoms of others.
(i) The seriousness of the offence: (Admin Ode –v- High Court, Criminal Courts of Justice, Dublin, Ireland  EWHC 3718). However "it is not for this court to in effect substitute its own appraisal of the appropriate sentence …" (Borkowski –v- Circuit Court of Torun  EWHC 1695 (Admin) per Foskett J at paragraph 14)' and "…it is not for this court to suggest that the sentence of a court in a European Union state is disproportionate simply because, at first blush and without knowing all the facts, it appears that it may be more than would be imposed here." (Kempa –v- District Court in Wroclaw, Poland  EWHC 1418 (Admin) per Burnett J).
(ii) The age of the requested person at the time of the offence and at the time of the extradition hearing: Podolski –v- Provincial Court in Pulawy, Poland  EWHC 3593 (Admin).
(iii) Change in lifestyle over a long period of time: Podolski (supra).
(iv) The fact that the requested person has not been in trouble since coming to the UK: Podolski (supra).
(v) The impact of extradition on the requested person's family: Podolski (supra).
(vi) Delay in bringing the proceedings, issuing or certifying the EAW: Juchniewicz –v- Regional Court in Szczecin, Poland  EWHC 1529 (Admin). Delay weighs more heavily in the balance if it is found to be culpable: Glica –v-Regional Court of Kielce, Warsaw, Poland  EWHC 359 (Admin). Merely because it is unexplained does not make delay culpable: R on the application of Blazejewicz –v- Circuit Court in Torun, Poland  WL 2807812. The recent observations of Collins J in Wolack –v- Regional Court in Gdansk, Poland  EWHC 2278 (Admin) emphasises the caution with which the Court approaches allegations of culpability on the part of the requesting authority/state:
"It is … quite wrong for this court to assume culpability in any delay unless it is so excessive or there are factors which indicate it really was not reasonable for the authority to fail to issue a warrant earlier than it did. Furthermore, even when a warrant is issued, it may take time for it to be appreciated where the appellant precisely is in this jurisdiction. It is all very well to say it should not have been difficult to find him but one must also bear in mind that there are priorities that have to be adopted by the authorities here." (Paragraph 9)
(vii) However, delay is only a factor: the Court's assessment of proportionality depends on the totality of circumstances in the individual case which means that reference to other cases is of limited value: Piestrak –v- District Court in Legnica  EWHC 1757 (Admin)
SECTION 21(A) EA 2003 - PROPORTIONALITY
s. 21A reads,
"the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate."
ABUSE OF PROCESS
(i) The Judge should initially insist that the conduct alleged to constitute the abuse is identified with particularity.
(ii) The Judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process.
(iii) If it is, then the Judge must next consider whether there are reasonable grounds for believing that such conduct may have occurred.
(iv) If there are, then the Judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred.
"….. The focus of this implied jurisdiction is the abuse of the requested state`s duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in Bermingham and Tollman concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of those two cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state."
"`Abuse of process` is not a term that sharply defines the matter to which it relates. It can describe:
(i) making use of the process of the court in a manner which is improper, such as adducing false evidence or indulging in inordinate delay, or (ii) using the process of the court in circumstances where it is improper to do so , for instance where a defendant has been brought before the court in circumstances which are an affront to the rule of law, or
(iii) Using the process of the court for an improper motive or purpose, such as to extradite a defendant for a political motive".
"We wish to emphasise that the circumstances in which the court will consider exercising its implied "abuse of process" jurisdiction in extradition cases are very limited. It will not do so if, first, other bars to extradition are available, because it is
a residual, implied jurisdiction. Secondly, the court will only exercise the jurisdiction if it is satisfied, on cogent evidence, that the Judicial Authority concerned has acted in such a way as to "usurp" the statutory regime of the EA or its integrity has been impugned. We say "cogent evidence" because, in the context of the European Arrest Warrant, the UK courts will start from the premise, as set out in the Framework Decision of 2002, that there must be mutual trust between Judicial Authorities, although we accept that when the emanation of the Judicial Authority concerned is a prosecuting authority, the UK court is entitled to examine its actions with "rigorous scrutiny". Thirdly, the court has to be satisfied that the abuse of process will cause prejudice to the requested person, either in the extradition process in this country or in the requesting state if he is surrendered."
• The EAW
• Skeleton argument on behalf of the RP
• Opening note on behalf of the IJA
• Statement of arrest (Pc J Newton)
• PNC printout showing no convictions or cautions
• Transcript of Telephone call from Lukasz Herba
• Further information from IJA dated November 2015
• Further information specific to this case dated 22.9.17
• Proof of evidence RP
• Bundle of authorities
• "Open source material" bundle (89 pages)
60. He said they are supposed to live together after the baby is born and are supposed to get married. He confirmed it is their first and only child.
Section 2 (4) (c) EA 2003 - validity of EAW
Section 21 (A) EA 2003 – Human Rights Article 6 ECHR
SECTION 21 (A) EA 2003 - HUMAN RIGHTS Article 8 ECHR
HH concerns 3 cases, each of which involved the interests of children, and the judgement must be read in that context
The public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice.
The decisions of the judicial authority of a member state making a request should be accorded a proper degree of mutual confidence and respect
The independence of prosecutorial decisions must be borne in mind
Factors that mitigate the gravity of the offence or the culpability will ordinarily be matters that the court in the requesting state will take into account. Although personal factors relating to family life will be factors to be brought into the balance under article 8, the extradition judge must also take into account that these will also form part of the matter is considered by the court in the requesting state in the event of conviction
The public interest in honouring extradition treaties,
•The Article 8 rights of victims, as well as the RP and his family
• The gravity of the offences,
• The strong public interest in ensuring that children are properly brought up,
• Delay and whether during the lapse of time the RP and (if relevant) family have made a new and blameless life for him/ themselves
• The age of the requested person at the time of the conviction.
• The UK should not be treated as a safe haven for fugitives
• Impact of his private life that extradition that would cause, including the financial effect of loss of employment
FACTORS IN FAVOUR OF EXTRADITION
FACTORS IN FAVOUR OF DISCHARGE
ARTICLE 8 ECHR DECISION
Section 21(A) EA 2003 - PROPORTIONALITY
ABUSE OF PROCESS
DISTRICT JUDGE PAUL GOLDSPRING