In February, the Supreme Court in Ireland raised some eyebrows when it refused to extradite a man wanted in the UK for tax fraud. The case was instead referred to the European Court of Justice.
The Irish Supreme Court noted that the sentence that had been imposed meant that the requested person would still be in custody when the UK leaves the EU in March 2019. As a result, it was unclear what legal regime would apply to him after that time.
Now, an Irish Court has refused to extradite a Polish man, wanted on drugs charges. His case has also been referred to the ECJ, for them to consider the impact of the significant changes to the Polish legal system. Laws passed at the end of last year gave the Government significant control of the judiciary, allowing ministers to appoint Judges and effectively removing judicial independence.
A fundamental part of the European Arrest Warrant system is the mutual trust and confidence placed in other countries legal systems. In its simplest terms, countries that are part of the EAW scheme are trusted to have appropriate systems in place, and whilst they may be different to those in another country, they cannot be called into question by the extraditing country.
The changes to the Polish judicial system have led to the European Commission referring Poland to the European Court of Justice. When the Commission is calling into question the integrity of a country’s judicial system, it is not difficult to see why there are concerns about the continued reliance on the principle of mutual recognition.
As in the earlier case, the Irish Court has simply referred the matter to the ECJ for a decision. It has not discharged the EAW, and the practical effect in Ireland is likely to be that all extradition requests to Poland are put on hold, pending the decision of the ECJ.
Whether or not the UK Courts adopt the same approach remains to be seen. Whilst the future status of the ECJ in the UK post-Brexit remains unclear, it would be ironic if the UK Courts chose to defer to the ECJ.
If you require help with an extradition case, please contact John Howey on firstname.lastname@example.org or 020 7388 1658Read More
Extradition Appeal victory for JFH Crime
Our team have been successful in an extradition appeal against the decision to extradite a 30-year-old woman to Lithuania. She was wanted to serve an 18-month prison sentence for fraud and to stand trial for other similar offences.
Our client is the mother of two young children. The children had been cared for by their grandmother since her remand in custody almost a year ago. She and her ex-partner entered the UK using false identity documents and she was convicted of those offences in this country. Although she was born in the Soviet Union, she had never regularised her immigration status in independent Lithuania; she faced insurmountable obstacles in establishing her right to citizenship of that country, hence the assumed identity.
Her ex-partner, who has previously been convicted of murder in Lithuania, has now been removed from the UK. He is facing a further potential murder charge in Lithuania. Before she was arrested, she was the victim of domestic violence and extreme controlling behaviour from her husband.
Children’s right to private and family life
She challenged extradition on the basis that her statelessness meant she could never return to the UK if she were extradited. If that happened, she would never be reunited with her children. By the time her appeal was heard, her two children had been severely affected by their mother’s arrest and imprisonment. They were at real risk of further significant and serious psychological harm if their mother was extradited. The local social services were about to begin care proceedings, as their grandmother could no longer look after the children.
The High Court judge hearing the case, Sir Wyn Williams, described the case as one of the most difficult of its type. He accepted that if our client were extradited, she would automatically lose custody of her children. This was because she would be unable to contest care proceedings in the family court. He concluded that this outcome would be a clearly disproportionate interference with her and her children’s right to private and family life.
After her release, we received a very nice ‘thank you’ card from the client. she said;
‘It’s only a thank you card but for me thank you means much more. It’s only because of this company I have the opportunity to send this card from outside. I am so thankful for everyone and for everything’
In court, our client was represented by Malcolm Hawkes of Doughty Street Chambers.
John Howey, Senior Solicitor
The consequences of the High Court decision in Grecu and others earlier this year are now being seen in other cases relating to Romanian prison conditions. In that case, the High Court ruled that extradition to Romania could only go ahead if the Romanian authorities were able to show that a requested person would be held in a cell with at least 3 square meters of space. This week, a Romanian client of ours was successful in his appeal after the Judicial Authority conceded that they could not provide a satisfactory assurance that our client would be held in appropriate conditions. As a result, he was discharged and released from custody.
It is important to note that this is not necessarily the end of the matter, either for this client or for others in his position.
The EAW can still be issued in other countries, so if he travelled elsewhere in Europe he could be arrested there. Depending on the extradition law in that country, he could still be extradited. The EAW could be reissued in this country, if Romania are ever able to sort out their prison system. The domestic arrest warrant is still valid in Romania, so if he went back to Romania he could still be arrested there.Read More
FK v Stuttgart State Prosecutor’s Office
In our last e-alert, we reported on the case of Tarik Chadloui who is facing extradition to Spain. In his case, the Spanish Judicial Authority were able to adduce further evidence to cure deficiencies in the EAW. In September, the High Court considered a similar question in the case of FK v Stuttgart State Prosecutor’s Office, Germany. Except in this case, the question is whether or not further information can be provided during the course of an appeal.
In FK’s case, he was wanted by Germany for 26 offences of fraud. It appears that he was accused of running a Ponzi style investment scheme. The EAW did not make it clear exactly where the conduct had taken place. In order to be an extradition offence, some of the conduct involved in the commission of the offence had to have taken place in Germany.
Permission to Appeal was granted in February, and in March the Judge asked the German authorities to clarify the position.
Circumstances of the further information request
Under the terms of the Council Framework Decision, which established the EAW process, the ‘executing judicial authority’ can request further information from the requesting state. The ‘executing judicial authority’ for this country is defined as ‘a District Judge (Magistrates Court) designated by the Lord Chancellor’. Following the cases of Goluchowski v District Court in Elblag, Poland, Poland and Alexander v Public Prosecutor’s Office, Marseilles; Di Benedetto v Court of Palermo, Italy (which were relied on in Chadliou’s case) there is no difficulty with the Magistrates Court requesting further information.
The problem in this case was that the High Court is not an ‘executing judicial authority’. The High Court’s jurisdiction in an extradition appeal is similar to that of the Court of Appeal when considering an appeal from the Crown Court. It is not a re-hearing, it is an assessment of whether or not the decision made by the District Judge was wrong.
Lord Justice Hickinbottom ruled that the ‘High Court has an inherent jurisdiction to regulate its own procedure’ and that the further information could be admitted. The Extradition Act already sets out the circumstances in which an appellant can submit new evidence. It would, as a matter of logic, be absurd if the Appellant was able to produce fresh evidence but the Respondent was not able to respond to that fresh evidence. Although in the majority of cases the Appellant will be the person whose extradition is sought, that is not always the case. If a requested person is discharged, the Judicial Authority have a similar right to seek permission to appeal.
Please contact us on 0207 388 1658, or email email@example.com if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior SolicitorRead More