Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN & BORDERS at EDINBURGH

Case Reference No: 2B 214/08

For the Lord Advocate : Ms L Barrie, Crown Office International Co-operation

Unit.

For the Accused : Mr R Harley, Solicitor, Edinburgh.

Edinburgh, 17 March 2008.

The Sheriff, having heard representations on behalf of both parties and having, in terms of the Extradition Act, 2003, decided :

that the offences specified in the Part 1 Warrant are Extradition offences [section 10(2)] ;

that the extradition of Michal Trajer to the Czech Republic, being a category 1 territory, is not barred by reason of any of the circumstances set out in section 11(1)(a) to (j) of said Act [section 11(1)] ;

that Michal Trajer, who is alleged to be unlawfully at large after conviction of the Extradition offences, was convicted in his presence [section 20(1) and (2)] ;

that his extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 [section 21(1)] ;

Therefore, in terms of section 21 (3) of the Extradition Act 2003, Orders Michal Trajer to be extradited to the Czech Republic, being the Category 1 territory in which said European Arrest warrant was issued.

J Douglas Allan.

NOTE

Introduction

1. In this case, the Czech Republic seeks the Extradition of the accused under the provisions of Part 1 of the Extradition Act 2003 ("the 2003 Act"). The Czech Republic is a "category 1 territory" for the purposes of Part 1. The request follows the issue on 7 January 2008 of a European Arrest Warrant by the Presiding Judge of the District Court in Prostejov, Czech Republic in respect of convictions and sentences for offences of rape and embezzlement, contrary to sections 241 and 248 of the Penal Code of the Czech Republic.
2. The accused appeared for the first time in this court on 29 February 2008 and declined to consent to Extradition. An extradition hearing was set for 17 March 2008 at which the accused was represented by Mr Harley, Solicitor, Edinburgh. It was conceded on behalf of the accused that the offences in respect of which Extradition was sought were "Extradition offences". [In the light of that concession, in regard to the fact that a cumulo sentence of four years and six months appeared to have been imposed in respect of the two offences, I need say no more than that I was satisfied, in the light of the decision in the House of Lords in the case of Pilecki -v- Circuit Court of Legnica Poland [2008] UKHL 7 at paragraph 34, that it is unnecessary, in a conviction case to which section 65(3) applies, for the Judge to ask himself whether the sentence that was passed for each offence satisfies the test that is set out in section 65(3)(c). If the other requirements of section 65(3) are satisfied, all that he needs to do is to determine whether the sentence for the conduct taken as a whole meets the requirement that it is for a term of at least four months.] Accordingly, I answered in the affirmative the question posed in section 10 of the 2003 Act and moved to a consideration of section 11.

Submissions in connection with "passage of time" - section 11(1(c).

3. Mr Harley, the solicitor for the accused, submitted that the extradition of the accused was barred by reason of the passage of time. He noted that on 28 January 2003, the judgment of the District Court had been confirmed following appeal. He also noted that in terms of section 68(d) of the Czech Republic Penal Code, the sentence imposed could not be served after the expiry of five years - which appeared to be the relevant period for these offences. He therefore submitted that the latest date for the sentence time limit to be reached would be 28 January 2008. Since the accused had not been arrested until 29 February 2008, and since any period spent by the accused out of the Czech Republic would not form part of the time limit, he submitted that it was for the Lord Advocate to show that the accused fell outwith the provisions of that time limit, since it appeared that five years had elapsed. On the basis of the chronology submitted, he noted that on 16 November 2007 police in the Czech Republic had informed the Court that information had been received from Interpol. The solicitor noted that this court had no knowledge of the content of that information and accordingly, in the absence of clarification of that, he invited this Court to hold that this matter was time-barred and that the accused should be discharged.
4. Ms Barrie, on behalf of the Lord Advocate, noted that the interpretation of section 11(1)(c) of the 2003 Act was governed by the terms of section 14 of the 2003 Act and, in this case, subsection (b) thereof which provided that the extradition would be barred by reason of the passage of time if (and only if) it appeared that it would be unjust or oppressive to extradite the accused by reason of the passage of time since he was alleged to have become unlawfully at large. Ms Barrie submitted that it would be for the accused to demonstrate that it would be unjust and oppressive for that reason for him to be extradited ; and she further submitted that there was no material by which the court could be satisfied that it would be unjust or oppressive in the circumstances here to extradite the accused. She submitted that the submissions for the accused were effectively an attempt to look behind the European Arrest warrant. In that warrant, after the regulations of the Penal Code regarding statutory limitations on the serving of a sentence had been set out, the Presiding Judge had added comments to the effect that the criminal prosecution had been legally ended with regard to the final verdict from 28 January 2003 ; that the serving of the prison sentence was also not limited with regard to the order to commencement of the sentence from 14 July 2003 and with regard to this European Arrest Warrant on 7 January 2008 stating the statutory limitation period ; and that the statutory limitation period also did not include the time the convicted person was abroad. Ms Barrie observed that, although he had not been obliged to do so, the Presiding Judge had included in the European Arrest warrant excepts from the Penal Code ; and that what was being said was that the serving of the sentence was not limited, that is, in our terminology that it was not time-barred. She also noted that this situation was confirmed in the further information provided in support of the European Arrest warrant in which the conclusion of the Presiding Judge is stated to be that the period has not ended, in other words the judgment is not out of date, but it is still running. Ms Barrie submitted that that this additional confirmation was not required ; but that it was there and was available if it was considered that it was needed. Ms Barrie continued that for this Court to look behind these clear statements by the relevant judicial authorities in the Czech Republic in the European Arrest warrant (and, if necessary, in supplement of it) would be to look behind the Warrant and would be outwith the remit of this hearing. She submitted that the Framework Decision (which the 2003 Act implemented) made clear the principle of mutual recognition of decisions of member states - and to look further into the matter raised, would be to look behind that clear statement and would undermine the principle of mutual recognition. Finally, she added that, in any event, her submission was that the statutory test in connection with the passage of time was not met in this case.
5. In response to these submissions, Mr Harley, solicitor for the accused, submitted that, since 28 January 2003 appeared to be the starting point for the running of the time-bar, and since five years had elapsed since then, he submitted that, in terms of section 14 of the 2003 Act, it would be unjust and oppressive to return the accused if the sentence was time-barred. He also submitted that the additional information which had been received from the Czech Republic in supplement of the European Arrest Warrant ought not to be received and considered since that it had not been authenticated. He added that this court had no information as to how long the accused had been out of the Czech Republic and he therefore adhered to his original submissions that to return him would be unjust and oppressive because of the passage of time.
6. In a brief response, Ms Barrie submitted that the supplementary documentation was properly before the court in terms of sections 202 and 204 of the 2003 Act. These sections made wide provision for other information to be received, even if not duly authenticated and if transmitted by electronic means such as e-mail, and for such information to be treated as if it were the Part 1 warrant. While she submitted that the matter was clear from the terms of the original European Arrest warrant, this supplementary information only clarified that earlier information. Further, she submitted that that earlier information clearly showed that the Czech Court had considered this time-bar issue but had still been satisfied that it was appropriate to proceed to issue the European Arrest warrant.

My decision

7. I was fully satisfied that the submissions on behalf of the Lord Advocate were correct and should be given full effect. It was clear that the Presiding Judge in the Court in the Czech Republic had already given consideration to the question of statutory limitation on the validity of the judgment of 20 January 2003 and had concluded that the period had not ended, that the judgment was not out of date but that it was still running. In the light of the clear conclusion of the Court in the Czech Republic which had issued the European Arrest warrant (and which had already considered the matter before the issue of the Warrant), I was satisfied that any attempt to look behind it would be failing to give full effect to the principle of mutual recognition which underpins the Framework Decision and the 2003 Act. I was satisfied that the matter was clearly expressed within the terms of the European Arrest warrant itself ; but I was also satisfied that, if it had been necessary to do so, the matter was further dealt with in the supplementary information which I consider was properly received in terms of sections 202 and 204 of the 2003 Act. That information showed that, having given further consideration to the very point at issue, the Presiding Judge had reached the same conclusion as had been stated in the original Warrant.
8. In the light of the terms of the submissions on behalf of the accused, I did not require to hear submissions on the wealth of authorities dealing with the question of "unjust and oppressive". I was therefore satisfied that the submissions on behalf of the accused to the effect that the extradition was barred by reason of the passage of time were without substance and could not receive effect. Accordingly, I answered the questions raised in section 11 (1) of the 2003 Act in the negative and, since I was satisfied that the accused was alleged to be unlawfully at large after conviction of the extradition offences, I was required by section 11 (4) of said Act to proceed in terms of section 20.
9. Since it was conceded that the accused person had been convicted in his presence, I answered the question in section 20 (1) in the affirmative and the terms of section 20 (2) then required me to proceed under section 21.
10. The terms of section 21(1) of the 2003 Act required me to decide whether the extradition of the accused would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. Since no relevant matter under this heading was placed before me, I decided that question in the affirmative.
11. Having so decided, the terms of section 21 (3) required me to order the accused to be extradited to the Czech Republic, being the category 1 territory in which the warrant was issued. I accordingly so ordered.