Jermaks v The Prosecutor General's Office of the Republic of Latvia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 05 February 2016 |
| Neutral Citation | [2016] EWHC 171 (Admin) |
| Date | 05 February 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3575/2015 |
[2016] EWHC 171 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Cranston
Case No: CO/3575/2015
Peter Carter QC and Ben Cooper (appearing pro bono) (instructed by Cantaris Locke) for the Appellant
Daniel Sternberg (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent
Hearing dates: 29/01/2016
Introduction
This is an appeal against the decision of District Judge Ikram ("the District Judge") made on 21 September 2015, to order the appellant's extradition to Latvia pursuant to a conviction European Arrest Warrant ("EAW") issued by the Prosecutor General's Office of the Republic of Latvia. It was certified by the National Crime Agency on 31 October 2014. The warrant seeks the appellant's extradition for him to serve a custodial sentence of five years, following his conviction for three offences: driving without a license and whilst under the influence of narcotic substances and possession of 0.5090g of methamphetamine on 29 August 2008, and possession of 16.72g of methamphetamine on 5 September 2008.
The issue raised in the appeal concerns the mandatory nature of the sentence which the Latvian court imposed on the appellant. The appellant argues that mandatory sentences are of their nature disproportionate and arbitrary under Article 8 of the European Convention on Human Rights. Consequently, the District Judge was wrong to order his extradition to Latvia.
Latvian proceedings and the EAW
The EAW was issued by S Petersone of the Prosecutor General's Office of the Republic of Latvia on 6 June 2012. Box B of the EAW records that the decision underlying the warrant was the judgment of the Riga City Kurzeme District Court of 31 January 2011. Box C of the EAW states that a sentence of 5 years was imposed for the offences on the warrant and the whole sentence remains to be served on return. According to Box D, this was not a sentence imposed in absentia. The offences are set out at box E of the EAW. After the offence of driving under the influence, box E describes the two drug offences (in translation) as follows:
"[The appellant] illegally bought and stored psychotropic substances without resale purpose repeatedly in the following circumstances:
[The appellant] at place and time which was not exactly established during the preliminary investigation, but no later than until August 29, 2008 illegally bought from a person who was not identified during the preliminary investigation no less than 0.5090g of substance containing 43% or 0.2188g of psychotropic substance equal to prohibited especially dangerous narcotic substances – methamphetamine. The illegally acquired 0.2188g of methamphetamine [the appellant] was illegally storing in the car Audi 100, registration plate number DZ 1799, until August 29, 2008, 15.20, when in Riga, on junction of O. Vacieša and Marupe street in direction from Altonava iela the car driven by him was stopped and the mentioned substance was found and seized.
[The appellant] repeatedly at place and time which was not exactly established during the preliminary investigation, but no later than on September 5, 2008 illegally bought from a person who was not identified during the preliminary investigation no less than 16.7200g of substance containing 26% or 4.3472g of psychotropic substance equal to especially dangerous narcotic substances – methamphetamine. The illegally acquired 4.3472g of methamphetamine [the appellant] was illegally storing with himself in the pack of cigarettes "Camel" until 5 September, 2008, 02.00, when in Riga, Griva iela near house No.11 he was detained, but mentioned substance – found and seized.
By his actions [the appellant] committed the criminal offence provided for by the Section 253(2) of the Criminal Law."
Section 253(2) is then reproduced in box E.
"Section 253. Unauthorised Acquisition, Storage, Transportation and Conveyance of Narcotic and Psychotropic Substances
(1) For a person who commits unauthorised manufacture, acquisition, storage, transportation or conveyance of narcotic or psychotropic substances without the purpose of selling such substances,
the applicable sentence is deprivation of liberty for a term not exceeding five years, with or without confiscation of property, and police supervision for a term not exceeding three years.
(2) For a person who commits the same acts, if commission thereof is repeated or in a group of persons pursuant to prior agreement, or by a person who has previously committed theft of narcotic or psychotropic substances, or if such have been committed regarding large amounts of narcotic or psychotropic substances,
the applicable punishment is deprivation of liberty for a term not exceeding five and not exceeding ten years, with or without confiscation of property and police supervision for a term not exceeding three years."
Before the District Judge was a transcript (in translation) of the judgment of Judge Ornina of Kurzeme District Court of Riga City, dated 31 January 2011, who had found the offences proved. The appellant had admitted his guilt and expressed remorse. The judgment records that he had been sentenced previously, by Kurzeme District Court of Riga City on 10 November 2005 to community service of 80 hours. Since punishment had not been served under the judgment of Kurzeme District Court of Riga City of 6 July 2004, that led to the final punishment of 280 hours community service. On 31 March 2009, since the sentence of 280 hours community service had not yet been served, the court substituted a sentence of imprisonment of 140 days. However, Latgale District Court held on 23 October 2009, pursuant to legislative amendments on the substitution of community service with imprisonment, that the 140 days of imprisonment had been reduced to 70 days. That sentence had been served.
In the judgment Judge Ornina recorded that the appellant was drug free; that the police had reported that he had made a significant contribution to the disclosure of a serious crime; that he was employed as an automotive mechanic, was married and maintained a daughter 8 years of age; and that on his account he had not used narcotic substances since 2008 and would submit monthly urine samples for the detection of narcotics. Judge Ornina continued:
"When the Court establishes the type and severity of the punishment it is guided by Sections 35 and 46 of the Criminal Law, namely, the objective of the punishment, the nature of the committed offence and the harm caused, the personality of the accused, as well as any mitigating or aggravating circumstances…
The Court believes that [the appellant's] liability is mitigated under Paragraph 3 of Part 1 of Section 47 of the Criminal Law as he actively furthered the disclosure of a criminal offence, as well under Part 2 thereof as he freely confessed and regretted the criminal offence committed, expressed his desire to change and not to commit any criminal offences in the future. But the liability of the accused is aggravated under Paragraph 1 of Part 1 of Section 48 of the Criminal Law as the criminal offences constitute the recidivism of criminal offences.
Having examined the personal characteristics of the accused and the evidence that may affect the type and severity of the applicable punishment under Part 2 of Section 253 of the Criminal Law – deprivation of liberty together with an additional mandatory punishment – police supervision, without the confiscation of property. The Court concluded to impose the punishment of deprivation of liberty as [the appellant] committed criminal offences for which he is tried when he had not yet served the previous sentence under the judgment of Kurzeme District court of 10 November 2005. [The appellant] believed that it was not necessary to serve the sentence – community service, and this punishment was substituted with a temporary deprivation of liberty. Considering these circumstances the Court believes that no other punishment with the exception of imprisonment will fulfil the objective of the punishment, namely, punish the guilty party and ensure that he would refrain from committing any criminal offences in the future and would abide by the law.
…
The Court, considering the two mitigating circumstances, and the fact that during the hearing it was able to ascertain that the accused has understood the underlying causes of his criminal activity and has regretted his actions, finds it possible to establish the minimum punishment under Part 2 of Section 253 of the Criminal Law thus fulfilling the objective of the punishment – punish for the committed crime and ensure that the accused would abide by the law and refrain from committing any criminal offences in the future."
Of 22 April 2015, the Latvian authorities provided further information in the form of a letter from the prosecutor who issued the EAW. This was before the District Judge. The letter explains that the appellant appealed against the judgment imposed on 31 January 2011 by the Riga City Kurzeme District Court, but on 11 May 2011 the Riga Regional Court dismissed the appeal and the decision became final on 24 May 2011. The letter states that an order to execute the judgment was sent to the state police on 7 June 2011 but the appellant evaded serving the sentence. On 25 May 2012, the court received information that he had left Latvia and was in Britain. On 4 June 2012 the Prosecutor General's Office made an extradition request, the EAW...
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