Lubomir Balint v Municipal Court in Prague, Czech Republic
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson |
| Judgment Date | 08 March 2011 |
| Neutral Citation | [2011] EWHC 498 (Admin) |
| Date | 08 March 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11697/2010,Case No: CO/11697/2010 |
[2011] EWHC 498 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before :LORD JUSTICE JACKSON
Case No: CO/11697/2010
Mr Ellis Sareen (instructed by Chadwyck Healey) for the Claimant
Mr Rob Harland (instructed by CPS) for the Defendant
Hearing date: Thursday 24 th February 2011
Lord Justice Jackson :
This judgment is in four parts, namely:
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Law,
Part 4. The Present Appeal.
This is an appeal against an order for extradition to the Czech Republic. There are two issues in this appeal. The first issue is whether the alleged offence is sufficiently described in the European arrest warrant. The second issue is whether the conduct described would constitute an offence in the United Kingdom, in other words whether the requirement of dual criminality is satisfied.
In this judgment I shall refer to the Extradition Act 2003 as "the 2003 Act". Part 1 of the 2003 Act relates to extradition to category one territories, i.e. members of the EU. Part 2 of the 2003 Act relates to extradition to other territories, referred to as category 2 territories.
I shall refer to a European Arrest Warrant issued under part 1 of the 2003 Act as "a Part 1 warrant". I shall refer to an arrest warrant issued under Part 2 of the 2003 Act as "a Part 2 warrant". Part 1 warrants fall into two categories, namely "accusation warrants" and "conviction warrants". Accusation warrants relate to warrants for the arrest of persons accused of committing offences. Conviction warrants relate to the arrest of persons who have been convicted and sentenced for offences.
Section 2 of the 2003 Act sets out the requirements with which all Part 1 warrants must comply. Section 2(3) and 2(4) set out the requirements which are specific to accusation warrants. These sub-sections provide as follows:
"(3) The statement is one that –
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is –
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
Section 64 of the 2003 Act sets out certain requirements which the conduct described in an accusation warrant must meet. Section 64(3) provides as follows:
"(a) the conduct occurs in the category 1 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of twelve months or a greater punishment (however it is described in the law)."
It should be noted that section 65 of the 2003 Act imposes similar requirements in respect of conviction warrants as section 64 imposes in respect of accusation warrants.
Section 64(3) sets out the dual criminality requirement in respect of accusation warrants. Section 65(3) sets out the dual criminality requirement in respect of conviction warrants. It should be noted that there is a similar dual criminality requirement in respect of Part 2 warrants: see section 137(2) of the 2003 Act.
Having identified the statutory provisions which are relevant to the present appeal, I must now turn to the facts.
On the 12 th April 2010 the Municipal Court in Prague issued a European Arrest Warrant requesting that the appellant be arrested and surrendered to that court for trial. I shall refer to this European Arrest Warrant as "the warrant". The offence which it was alleged that the appellant had committed was embezzlement, pursuant to paragraphs 1 and 5(a) of section 206 of the Czech Criminal Code.
The description of the offence alleged was set out in box (e) of the warrant. The English translation of box (e) reads as follows:
"As an agent/secretary of the company Family Frost, spol, s.r.o, (from 29.6.2000 until 5. 12. 2005), IC identification number: 45275769, having the seat at 150 00 Prah 5, Zubatého 11, with the intent to appropriate the entrusted funds, he drew financial funds from the bank account of the Family Frost, spol, s.r.o. number 872343561/0100 CZK with the Komercni Banka a.s. bank, having the seat at 114 07 Praha 1, Na Prikopé 33, on 29.8.2000 by means of a payment card no. 4917 0100 0057 8446 or by payments in cash withdrawn from the account by means of ATMS in different locations in the Czech Republic, Slovakia, the Federal Republic of Germany, Hungary, Croatia, Slovenia, Latvia, Russia, Turkey, Poland, Spain, France, Belgium, Netherlands, Switzerland and other so far unspecified countries, including the members of the European Union amount of 3,257, —CZK from the bank account of the Family Frost, spol. s.r.o. number 872343561/0100 with the bank Komercni Banka a.s., registration number 453 17 054, having the seat at 114 07 Praha 1, Na Prikopé 33 between 8.8.2000 and 24.10.2000 he withdrew from ATM machines using card number 4917 0100 0057 8446 the cash amount of CZK 218,500. -, from the bank account of the Family Frost, spol s.r.o 272309730297/0100 with the Komercni Banka a.s. bank, IC identification number: 45317054, having the seat at 114 07 Prah 1, Na Prikopé 33. Between 25.10.2000 and 7.12.2005 he withdrew the amount of CZK 4, 512,590. —in cash from ATMs by means of cash withdrawals from ATMs using a payment card number 4917 0100 0057 8446 (until 20.10.2004), using payment card no. 4917 0156 3784 7759 (since 21.10.2004), later he returned to the employer the amounts of CZK 1,525, 976, —and CZK 764, 426.31, the amount of CZK 628,085, —was paid by assignment of a claim, and the amount of CZK 381,800.50 was used for already commenced payments in cash, by which he caused damage in the total amount of CZK 1,434.058, –, which he covered by concluding credit contracts despite the fact that, according to the company policies, he was not authorized to conclude such contracts. As a consequence, he caused damage Family Frost, spol. s.r.o in the total amount of CZK to the 6,885,992.82."
The appellant, who is resident in this jurisdiction, was duly arrested pursuant to the warrant. He was brought before District Judge Evans at the City of Westminster Magistrates Court.
The appellant raised two defences to the extradition proceedings. His first defence was that the warrant did not comply with the requirements of section 2 of the 2003 Act, in particular section 2(4)(c). His second defence was that the offence specified did not satisfy the requirements of dual criminality under section 64(3)(b) of the 2003 Act.
During the course of the hearing the appellant requested that his interpreter should re-translate the last part of box (e) of the warrant, as he asserted that the word for "cover" had been mistranslated. The interpreter translated that word as "conceal".
The district judge concluded that the offence was described with sufficient detail and clarity in box (e) of the warrant, in order to satisfy the requirements of section 2(4)(c) of the Act. He also concluded that dishonesty could be inferred from the language used, even though the word "dishonest" was not actually used in the description of the offence. He went on to conclude that the offence described would be a crime under English Law, namely theft of a chose in action.
Having reached those conclusions, the district judge went on to order that the appellant be extradited to the Czech Republic.
The appellant is aggrieved by the decision of District Judge Evans. Accordingly he appeals to the High Court, advancing the same two contentions that he deployed in the Magistrates Court. The appellant did at one point raise a third ground of appeal, but that is no longer pursued.
In the present appeal, therefore, I must focus upon the offence described in the warrant and upon whether that description satisfies the requirements of the 2003 Act. Before undertaking that exercise, however, I must first review the law.
In Office of the King's Prosecutor, Brussels v Cando Armas and another [2005] UKHL 67; [2006] 2 AC 1 the House of Lords upheld an order for the defendant's extradition to Belgium. The House noted that, in order to be valid, a Part 1 warrant had to contain the statements and the particulars required by section 2 of the 2003 Act. The House held, however, that it was unnecessary that all the conduct complained of should have occurred in the category 1 territory to which the defendant was being extradited: see paragraph 17 of the speech of Lord Bingham, with whom all other members of the Judicial Committee agreed. Lord Hope (with whom Lord Scott, Baroness Hale and Lord Carswell agreed) elaborated on this...
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