Konecny v District Court in Brno-Venkov, Czech Republic

Heard on 6 December 2018

( with whomLord Kerr, Lord Hodge, Lady BlackandLord Kitchinagree)

On 12 May 2008, Mr Karel Konecny (“the appellant”), a Czech national, was convicted in his absence by the District Court in Brno-Venkov, Czech Republic (“the District Court”) of three offences of fraud, committed between November 2004 and March 2005, and was sentenced to eight years' imprisonment. It was alleged that the three offences concerned a total sum of approximately £120,000.

The extradition of the appellant has been requested by the District Court by a European Arrest Warrant (“EAW”) dated 17 April 2013 pursuant to the European Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between member states (2002/584/JHA) (“the Framework Decision”). The Czech Republic is a designated Category 1 territory pursuant to section 1 of the Extradition Act 2003 (“the 2003 Act”), by the Extradition Act 2003(Designation of Part 1 Territories) Order 2003 (SI 2003/3333), as amended by the Extradition Act 2003 (Amendment to Designations)Order 2004 (SI 2004/1898).Part 1 of the 2003 Act, as amended, applies in this case. The EAW states that it is based on an enforceable judgment, namely the judgment of the District Court dated 12 May 2008, confirmed by the resolution of the Regional Court in Brno dated 23 July 2008.

The EAW specifies that the appellant will be afforded an unqualified right to be re-tried upon return in the event that he makes an application to be re-tried. A letter from the District Court dated 17 March 2017 confirms that:

The EAW was submitted to, and received by, the National Crime Agency (“NCA”), an authority designated by the Secretary of State for the purposes of Part 1 of the 2003 Act. On 2 March 2017 the EAW was certified by the NCA under sections 2(7) and (8) of the 2003 Act. The appellant was arrested pursuant to section 3 of the 2003 Act on 2 March 2017. The initial hearing took place at Westminster Magistrates' Court pursuant to section 4 of the 2003 Act. The appellant was remanded in custody to the extradition hearing.

The extradition hearing took place before District Judge Ashworth at Westminster Magistrates' Court on 10 April 2017. One of the issues raised was whether, under section 14 of the 2003 Act, extradition would be oppressive or unjust given the passage of time since the offences. In reliance on section 14(a) of the 2003 Act, the appellant argued that he was an accused person facing a prospective trial and that it would be unjust and oppressive to order his extradition taking into account the delay since 2004 and events and changes in his personal circumstances within that period. The appellant also maintained that his extradition would infringe his rights under article 8 of the European Convention on Human Rights (“ECHR”).

In his judgment dated 24 April 2017 District Judge Ashworth ruled that it was the conviction provisions in section 14(b) which were the operative provisions and that, as a result, the passage of time to be considered under section 11(1)(c) and section 14 was restricted to the period from 12 May 2008 (the date of conviction by the District Court) onwards. He concluded that the circumstances of the delay did not justify a finding that it would be unjust or oppressive to return the appellant to the Czech Republic. He went on to consider whether the return of the appellant would infringe the appellant's article 8 rights and, in that context, considered the delay since the offences were committed. He, nevertheless, concluded that the public interest factors in favour of extradition outweighed the considerations relating to the appellant's family and private life, even when the delay was taken into account. The appellant's surrender to the Czech Republic was ordered pursuant to section 21(3) of the 2003 Act.

The appellant sought to appeal against the order for his extradition. On 21 June 2017 Collins J granted permission to appeal. On 27 September 2017 Sir Wyn Williams, sitting as a judge of the High Court, upheld the District Judge's ruling that it was the conviction provisions of section 14(b) which were applicable, with the result that the passage of time to be considered under section 11(1)(c) and section 14 was restricted to the period since conviction on 12 May 2008. The judge concluded that the extradition of the appellant would not be unjust or oppressive. He did, however, address the issue of delay further in the context of the article 8 challenge. He noted that the District Judge was fully aware of the very long delay between the offending and the hearing before him. Sir Wyn considered that the delay which had occurred was a powerful factor militating against extradition. However, he could not conclude that the District Judge's decision on the article 8 issue could be said to be wrong. Accordingly, he dismissed the appeal pursuant to section 27(1)(b) of the 2003 Act.

On 7 November 2017 the High Court certified the following point of law of general public importance:

“In circumstances where an individual has been convicted, but that conviction is not final because he has an unequivocal right to a retrial after surrender, is he ‘accused’ pursuant to section 14(a) of the 2003 Act, or ‘unlawfully at large’ pursuant to section 14(b) for the purposes of considering the ‘passage of time’ bar to surrender?”

On the same date the High Court refused permission to appeal to the Supreme Court.

On 23 March 2018 the Supreme Court (Lord Mance, Lord Hughes and Lady Black) granted permission to appeal to the Supreme Court.

The European Union system for the surrender of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order is established by the Framework Decision as amended. The recitals in the preamble make clear that its objective is to abolish extradition between member states and replace it by a system of surrender between judicial authorities. It was intended that the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution should make it possible to remove the complexity and potential for delay inherent in previous extradition procedures (recital (5)). The mechanism of the EAW is based on a high level of confidence between member states (recital (10)). In relations between member states the EAW was intended to replace all the previous instruments concerning extradition (recital (11)).

Article 1 of the Framework Decision provides in relevant part:

“ Article 1

Definition of the European arrest warrant and obligation to execute it

1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. …”

Article 3 sets out grounds for mandatory non-execution of an EAW and article 4 sets out grounds for optional non-execution.

Article 8 provides in relevant part:

“ Article 8

Content and form of the European arrest warrant

1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

…

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2;

…

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing member state; …”

Council Framework Decision 2009/299/JHA of 26 February 2009 amends the Framework Decision. Its full title states that its purpose is “enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial”. Recital (6) of the Preamble states:

“(6) The provisions of this Framework Decision amending other Framework Decisions set conditions under which the recognition and execution of a decision rendered following a trial at which the person concerned did not appear in person should not be refused. These are alternative conditions; when one of the conditions is satisfied, the issuing authority, by completing the corresponding section of the European arrest warrant or of the relevant certificate under the other Framework Decisions, gives the assurance that the requirements have been or will be met, which should be sufficient for the purpose of the execution of the decision on the basis of the principle of mutual recognition.”

It inserts article 4a into the Framework Decision which provides in relevant part:

“ Article 4a

Decisions rendered following a trial at which the person did not appear in person

1. The executing judicial authority may also refuse to execute the European arrest...