Bendik v Judicial Authority of Slovakia
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PITCHFORD |
| Judgment Date | 18 June 2010 |
| Neutral Citation | [2010] EWHC 1821 (Admin) |
| Date | 18 June 2010 |
| Docket Number | CO/3633/2010 |
| Court | Queen's Bench Division (Administrative Court) |
[2010] EWHC 1821 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Pitchford
Mr Justice Blair
CO/3633/2010
Miss Chloe Gardner (Instructed By Sumal Creasey Solicitors, Leicester) Appeared On Behalf Of The Appellant
Mr Rob Harland (Instructed By The Crown Prosecution Service) Appeared On Behalf Of The Respondent
: This is an appeal from the order of District Judge Riddle of 10th March 2010, that the appellant, Marian Bendik, should be extradited to Slovakia to face charges arising from an incident of violence which took place on 29th July 1998.
Mr Bendik was born on 1st August 1970 and is a Slovakian national of the Roma community. He is married with five children of whom three were born while in the United Kingdom. Mr Bendik and his family arrived in the United Kingdom in 1998 and, in circumstances which I shall describe in a moment, in 2007 were granted the right to remain indefinitely. The current European arrest warrant was issued by the Slovakian Judicial Authority on or about 21st November 2005. A Part 1 certificate was issued pursuant to section 2(7) of the Extradition Act 2003 dated 6th October 2009. Mr Bendik was arrested in Folkestone on 13th November 2009 under the European arrest warrant, as he was told, for the offences of assault and breach of the peace.
A number of issues are raised in writing in this appeal, as indeed they were before the District Judge. Not all of them, as I shall explain, have merit. The first is whether the District Judge was entitled to proceed in the absence of service of the arrest warrant on the appellant required by section 4(2) of the Act. It is contended on Mr Bendik's behalf that he did not receive a fair hearing of the issue. No submissions were addressed to us as to the effect of the alleged failure to serve the warrant but, in any event, the matter had been considered at the initial hearing by a different judge following Mr Bendik's arrest. District Judge Riddle dealt with this issue in his judgment as follows:
“I asked Miss Gardner if she was pursuing this point, as it had already been decided (as it always is) at the first hearing. She said she had raised the point since her first involvement in the case. She repeats it in her written argument. As she has not expressly abandoned it I must deal with it.
Firstly, it is clear from the court file that the defendant was represented at the first hearing and had a solicitor. The court was expressly told that the warrant had been served on him at the police station. No point was taken. I have no doubt that the matter was decided then by the deputy chief magistrate. In any event PC Lee Calver in his statement signed and dated 13 November 2009 says that after arresting Mr Bendik on the European arrest warrant for the offences of assault and breach of the peace he served a copy of the warrant issued in Slovak ‘but due to his demeanour I retained it on my person … He was conveyed to Folkestone Police Station custody suite. On arrival Mr Bendik was given the warrant again, which he retained.’ This statement was before the court at the initial hearing. There can be absolutely no reason for the officer to deliberately lie about it. The defendant was expressly arrested on this warrant. He correctly refers to the warrant as being for offences of assault and breach of the peace. Had there been an oversight it could have been corrected before he made his statement, and it is unlikely that anything would have turned on it. Moreover, during his evidence Mr Bendik is particularly unreliable in relation to documents. He claimed not to have seen his own exhibit MB2 until these proceedings began. He claimed not to have read or understood his own exhibit MB3. On this evidence I have no doubt whatsoever that he was served with the warrant as described by the officer.”
In these circumstances I do not see how it can be argued that the District Judge went wrong in fact or in law. He considered the issue on its merits and rejected it on what are compelling grounds. Secondly, the appellant relied on issues raised under section 11(1)(b) and section 13(b) of the 2003 Act under which the judge must decide whether the person's extradition to a Category 1 territory is barred because “if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race.” I should add, in summary and in parenthesis, that the stated reason for Mr Bendik's family's arrival in the United Kingdom in 1998 was alleged persecution on the grounds of his race.
In connection with section 13 Miss Gardner expanded in her written argument. However, in oral submissions she recognized and conceded quite properly that the District Judge had indeed paid appropriate regard to the country information with which he was provided. Secondly, she acknowledged that Slovakia was a signatory to the European Convention on Human Rights and had incorporated the provisions of article 6 into its domestic law. Accordingly, there was and is an article 6 fairness guarantee. Therefore, as a discrete ground section 13 was not pursued. With the assistance of an opinion from a Slovakian lawyer, Mr. Roman Jarik, Miss Gardner pursued on the appellant's behalf her third ground. The prosecution was time barred under the Slovakian Criminal Code, it was asserted. If that was indubitably so, then it is contended that the extradition request would be an abuse of the court's process. The argument is to the following effect. At the time that the crime was allegedly committed the limitation period for the commencement of proceedings was five years. That period had long expired. Since 1st January 2006 the limitation period has been 10 years. That period did not expire. If the five year period applies to Mr. Bendik without more, then the proceedings are time barred. As a matter of fact the Judicial Authority has indicated in an e-mail dated 18th February 2010 that it does not believe that Mr. Bendik knew of the proceedings before he left Slovakia.
There are uncertainties attending this limitation issue. The principle is whether the statute of limitations causes time to run whilst Mr Bendik was out of the jurisdiction.
In a further e-mail of 10th June 2010 the Judicial Authority in Bratislava asserts that under paragraph 67(2)(b) of the 1961 Criminal Code, also referred to by Mr Jurik in his letter, time continues to run only after the accused returns to the jurisdiction. However, the 2005 Criminal Code, while extending the limitation period to 10 years, also amended the law relating to residents abroad. Time will under the amendment continue to run unless the accused left the jurisdiction for the purpose of evading the prosecution. In general an accused is entitled to take the benefit of any amendment to the Code but this will be a matter for consideration by the District Court of Presov. The issue would be whether the accused is entitled to take the benefit of the favourable amendment without also accepting the corresponding limitation period under the amendment of 10 years. If he is not, then the prosecution is not time barred. If he is it will be.
It is my view that the evidence fails to demonstrate an arguable case of bad faith on the part of the Judicial Authority in Slovakia. As Maurice Kay LJ observed in Battistini v Court of Naples Italy [2009] EWHC 3536 (Admin) at paragraphs 14 to 16, these are matters for the requesting court, not for this court.
There is a further argument upon abuse of process which Miss Gardner advances. Relying upon the District Court of Ostroleka v Dytlow [2009] EWHC 1009 (Admin), she submits that the appellant is in the position of a refugee in respect of whom it would be unconscionable to direct extradition to the very country in which he was persecuted. In his witness statement of 2nd January 2010, adopted in his evidence before the District Judge, Mr Bendik said about the reasons for seeking asylum in the United Kingdom:
“During my childhood I was not able to have a proper education mainly due to the fact that we were treated not as second class but third class citizens. My family and I were harassed repeatedly. For example:
(a) we could not travel freely without being insulted and verbally, and sometimes physically, abused.
(b) we were rarely permitted to worship at churches and on the few occasions when we were allowed access, my family and I had to sit separately to the rest of the congregation. Sometimes the skinheads prevented us from entering the church altogether.
(c) On the occasions that we were able to settle in a house or an apartment, the skinheads would continuously make trouble for us until we left.
(D) It was unsafe for me to travel to school as a child without being accompanied and even after Vilma and I had our own children the situation continued to be the same. Our safety was always at risk because of the community we came from.
(e) As a child it was not safe for me to play in parks or playgrounds and even later in life the situation remained dangerous for my children.
(f) At the time and prior to my departure in 1998 there was an increase in racist behaviour towards people from my community, for example it was common to see insulting graffiti and slogans such as ‘Roma people should be sent to gas chambers'”.
As I have said, Mr Bendik arrived in the United Kingdom in 1998 when he was aged 28. His asylum application was never resolved on its merits. On 13th September 2007 the...
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