Athanassiadis v Greece

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Dilhorne,Lord MacDermott,Lord Morris of Borth-y-Gest,Lord Guest,Lord Upjohn
Judgment Date15 March 1967
Judgment citation (vLex)[1967] UKHL J0315-1
Date15 March 1967

[1967] UKHL J0315-1

House of Lords

Viscount Dilhorne

Lord MacDermott

Lord Morris of Borth-y-Gest

Lord Guest

Lord Upjohn

Athanassiadis
and
Government of Greece and Others

Upon Report from the Appellate Committee, to whom was referred the Cause Athanassiadis (A.P.) against Government of Greece and others, that the Committee had heard Counsel, as well on Wednesday the 1st, as on Thursday the 2d, Monday the 6th and Tuesday the 7th, days of February last, upon the Petition and Appeal of Thomas Athanassiadis, then detained in Her Majesty's Prison, Brixton, in the County of London, formerly of 20 Vassileos Constantinou Street, Aghia Paraskevi, Attica, Greece, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 5th of October 1966, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Government of Greece, the Governor of Her Majesty's Prison, Brixton, and Her Majesty's Secretary of State for the Home Department, the Respondents in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 5th day of October 1966, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Viscount Dilhorne

My Lords,

1

On the 3rd June, 1966, an information was laid by Detective Sergeant Martin at Bow Street Magistrates' Court stating that the Appellant was "accused of the commission of the crime of fraud within the jurisdiction of the Government of Greece". The Detective Sergeant said that he had been informed that a warrant had been issued in Greece for the Appellant's arrest. He asked that a warrant might be issued under the Extradition Act, 1870, for the Appellant's arrest as there were reasonable grounds for supposing that the Appellant might escape during the time necessary to present the diplomatic requisition for his surrender.

2

A warrant was issued. On the 3rd June the Appellant was arrested. He was brought before the Magistrate on the 4th June and remanded in custody. He continued to be remanded in custody until the 13th August, 1966.

3

In 1910 a Treaty was made between Great Britain and Greece for the mutual extradition of fugitive criminals. The Extradition Act, 1870, by section 2, provides that where such an arrangement has been made, Her Majesty may, by Order-in-Council, direct that the Act shall apply in the case of the foreign state. Power is given by this section to limit the operation of the Order and to render its operation "subject to such conditions, exceptions, and qualifications as may be deemed expedient".

4

An Order in Council applying the Act in the case of Greece was made on the 13th February, 1912. That Order contained the terms of the Treaty and provided that the Extradition Acts should apply in the case of Greece "under and in accordance with" the Treaty.

5

Under the Extradition Acts a foreign state may issue a requisition for the surrender of a person either on the ground that he is accused of a crime for which under the Treaty with that state and the Extradition Acts he may be extradited or on the ground that he has been convicted of such a crime.

6

Article 8 of the Treaty with Greece provides that a requisition for the extradition of an accused person must be accompanied by a warrant of arrest issued by the competent judicial authority and by such evidence as, according to the laws of the place where the accused is found, would justify his arrest if the crime had been committed there. This Article further provides that if the requisition relates to a person already convicted, it must be accompanied by a copy of the judgment passed on the convicted person by the competent court of the state making the requisition.

7

Article 9 makes provision for cases of urgency. Its terms, so far as they are material, are as follows.

"In cases of urgency provisional arrest may be effected upon notice being given … that one of the documents enumerated in Article 8 has been issued … Provisional arrest shall be effected in the manner and in accordance with the rules laid down by the laws of the State applied to. It shall not be maintained if, within the period of one month from the date on which it has been effected, the State applied to has not been furnished with one of the documents specified in Article 8."

8

It was not disputed that this Article applied in relation to the arrest of the Appellant on the 3rd June. It follows that, unless one of the specified documents had been furnished by the 3rd July, if "month" in this Article meant a calendar month, or by the 1st July if it meant a lunar month, the Appellant should, if the Treaty was to be complied with, have been set at liberty.

9

Mr. Comyn, for the Appellant, contended that no specified document had been furnished to Great Britain within a month of the arrest and that therefore the Appellant should have been released; and that the failure to release him invalidated the warrant for his committal with a view to surrender issued by the Magistrate on the 13th August, 1966.

10

On the 10th June, a week after the Appellant had been arrested, the Green Embassy sent to the Foreign Secretary a Note Verbale informing him that a requisition for the extradition of the Appellant would be sent to him as soon as the documents provided for in Article 8 of the Treaty of 1910 had reached the Embassy from Athens; and requesting that the Appellant should be placed under provisional arrest. By this Note Verbale "official notices" were given that the Appellant had ( a) been convicted of fraud and sentenced to three years imprisonment by the Correctional Court of Piraeus (Judgment No. 3680 dated the 31st May, 1965); ( b) been convicted of fraud and sentenced to twenty months imprisonment by the Correctional Court of Athens (Judgment No. 30521 dated the 20th December, 1965) and ( c) been arraigned by the Chamber of the Correctional Judge to be tried before one of the criminal courts for causing a shipwreck.

11

On the 27th June, 1966, the Foreign Secretary sent a Note to the Greek Ambassador asking that "supporting evidence for the extradition of" the Appellant "(or at least the warrant of arrest issued in Greece)" should be forwarded to him to reach him no later than the 30th June "since if the documents are not produced to the Court by the 1st of July the prisoner will be discharged in accordance with the provisions of Article 9" of the Treaty.

12

On the 30th June a further Note Verbale was sent to the Foreign Secretary by the Greek Embassy. It made formal application for the extradition of the Appellant and sent with it was Decision 482 of the 16th March, 1965, of the Correctional Judges of Piraeus arraigning the Appellant on the charges contained therein and ordering his arrest.

13

This Decision shows that the Appellant was charged with being the moral instigator of causing a shipwreck and the moral instigator of perjury by certain Customs officials.

14

A moral instigator under the Greek Penal Code appears to be one who counsels and procures the commission of the Act. By section 3 of the Extradition Act, 1873:

"Every person who is accused or convicted of having counselled, procured … the commission of any extradition crime … shall be deemed, for the purposes of the principal Act" (the Act of 1870) "and this Act, to be accused or convicted of having committed such crime …"

15

It will be noted that Decision 482 did not charge the Appellant with the commission of the crime of fraud, although the warrant for his arrest in this country has been issued on the ground that he was accused of that crime and in the belief that a warrant had been issued in Greece for his arrest on that account.

16

On the 1st July a letter was sent from the Home Office to the Magistrate referring to the Appellant "who was apprehended on 3rd June 1966 under a Provisional Warrant … for the crime of fraud committed within the jurisdiction of the Government of Greece" and stating that the Secretary of State had that day received one of the documents specified in Article 8 of the 1910 Treaty "and that it would therefore appear that the provisional arrest may be maintained in accordance with the provisions of Article 9 of the said Treaty".

17

The Appellant, as I have said, continued to be remanded in custody after the 3rd July.

18

Article 2 of the Treaty provides that "Extradition shall be granted for the following crimes or offences when provided for by the laws of the requisitioning State and of the State applied to". There follows a list of crimes. The Article concludes with the statement:

"Participation in the aforesaid crimes is also included, provided that such participation is punishable by the laws of the demanding State and of the State applied to".

19

The English text does not contain the offence of causing a shipwreck but does contain perjury.

20

Mr. Caplan, for the Greek Government, contended that Decision 482 amounted to a warrant for the Appellant's arrest, inter alia, for perjury and as that was under the Treaty an extraditable crime, the warrant of arrest constituted one of the documents specified in Article 8 and so that the requirement of Article 9 was complied with and the Appellant's arrest could be...

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