Maris Zelenko v Prosecutor Generals Office of the Republic of Latvia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 03 October 2019 |
| Neutral Citation | [2019] EWHC 3840 (Admin) |
| Date | 03 October 2019 |
| Docket Number | No. CO/310/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3840 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Julian Knowles
No. CO/310/2019
Mr J. Crawford (instructed by Tuckers) appeared on behalf of the Appellant.
Mr A. Dos Santos (instructed by Crown Prosecution Service) appeared on behalf of the Respondent.
This is an appeal by the appellant Maris Zolenko with the permission of Yip J granted on 16 May 2019 against the decision of Deputy Senior District Judge Ikram of 17 January 2019 ordering his extradition to Latvia pursuant to a European Arrest Warrant (“EAW”).
The appellant's extradition is sought so that he can stand trial for two offences, one of possession of 0.06 grams of methamphetamine and one of possession and then resale of 0.38 grams of methamphetamine. In England and Wales methamphetamine is a Class A drug. If convicted, he faces a sentences of between two and eight years' imprisonment on each offence. It is not necessary for the purposes of this appeal to say more about the offences on the EAW. It is true that the quantities of drugs involved are small, but, plainly, they are regarded as serious offences in Latvia. Hence, the minimum two-year jail sentence.
The bars to extradition relied on below were s.25 of the Extradition Act 2003 (“ EA 2003”) (ill-health) and s.21A read with Art.3 and Art.8 of the European Convention on Human Rights. The appellant unfortunately is HIV positive and also had hepatitis C, although fortunately that virus has been cleared from his system following treatment. However, his hepatitis C was untreated for many years and, as a consequence, he now has a cirrhotic liver and is at risk of developing liver cancer. I will address the medical evidence in more detail later.
It was argued below that his ill-health meant that his extradition was barred on the grounds I have mentioned. The judge rejected these bars. Permission was granted by Yip J on the basis that it was arguable that the judge failed to appreciate the complexity of the care requirements in relation to Mr Zelenko's cirrhotic liver and wrongly presumed that a suitable level of care would be available in prison. It is said that in the absence of further evidence, given the judgment in Magiera v District Court of Kracow, Poland [2017] EWHC 2757 (Admin) the District Judge's conclusion was wrong in terms of the medical risk and that this error in his judgment influences the reasoning under both s.25 and Art.8. The Art.3 ground is not now pursued.
The statutory framework
Section 25 provides:
“Physical or mental condition
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.”
I summarised the relevant law in Surico v Public Prosecutor of the Public Prosecuting Office of Bari, Italy [2018] EWHC 401 (Admin) at para.34 to 37. I will not repeat those paragraphs. Among the cases I considered was Government of the Republic of South Africa v Dewani No.2 [2014] EWHC 153 (Admin), which considered s.91 of the EA 2003 (the corresponding provision in Part 2 to s.25). At para.50 to 51 of that case the court said:
“50. We therefore accept, as was submitted by Miss Montgomery QC, that the breadth of the factors to be considered under s.91 include looking at the question of whether it was unjust or oppressive to extradite the person at the time the request was being considered as well as looking forward to what might happen in the proceedings in South Africa if he was extradited. We must take into account all such matters, including the consequences to the requested person's state of health and age. We accept that this entails a court taking into account the question as to whether ordering extradition would make the person's condition worse and whether there are sufficient safeguards in place in the requesting state (as the Privy Council held was necessary in Knowles v Government of the USA [2007] 1 WLR 47 at paragraph 31).
51. We do not, however, accept that there are any hard and fast rules; that would be inconsistent with the position that each case must be specifically examined by reference to its facts and circumstances. The only situation in which a court would most probably say it would be oppressive and unjust to return him is where it is clear that he would be found by the court in the requesting state to be unfit to plead. That follows from the decisions to which we have referred at paragraph 19. However, such a case would, as Mr Keith QC accepted, be in many respects analogous to a case where a UK court concludes it is inevitable that a court in the requesting state will conclude that a fair trial is not possible. In such a case it would be unjust and oppressive to return that person: see Woodcock v Government of New Zealand [2004] 1 WLR 1979 at paragraph 20, Knowles at paragraph 31 and Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038 at paragraphs 31–36.”
In Magiera I ventured to make some observations on the operation of s.25. I said that the starting point was the rebuttable presumption that there will be medical facilities available of a type to be expected in a prison available to the defendant: Kowalski v Regional Court in Bielsko-Biala, Poland [2017] EWHC 1044 at para.20. I also said that despite this starting point, where the defendant relies on s.25 then the more complex the medical picture the more which may be required by way of evidence from the requesting state as to what treatment or facilities are available. I emphasise the words “may be required”. I was not intending to lay down any hard and fast rule. As the court said in Dewani No.2 at para.51 “there is no scope for hard and fast rules in relation to the operation of s.25 and s.91” save for the specific example it gave of a defendant who is unfit to stand trial. My observations were made in the context of a defendant whose medical condition raised in an acute fashion specific medical and personal care issues which had not been dealt with at all in the rather general evidence from Poland, leading to my conclusion that it would be oppressive to extradite him because of his medical condition. My approach has been approved in several cases, including Zdravkov v Judicial Authority of Bulgaria [2018] EWHC 1823 at para.22 (Holgate J) and Henriques v Jurisdiction Authority of Portugal [2019] EWHC 1998 (Admin) at para.36 (Flaux LJ and Sir Kenneth Parker).
I turn to Art.8. In assessing whether extradition would be a disproportionate interference with the defendant's rights under Art.8 the effect of the decisions of the Supreme Court in Norris v Government of United States of America [2010] 2 AC 487, HH v Deputy Protecter of the Italian Republic of Genoa [2013] 1 AC 338 and Polish Judicial Authorities v Celinski [2016] 1 WA 551 is that the issue is whether the interference with Art.8 is outweighed by the public interest in extradition. It is likely that the public interest in extradition will outweigh the Art.8 rights of the requested person and any relevant family member where that factor is relied upon, unless it would result in an exceptionally severe interference with family life. That particular interest always carries great weight, although the weight to be attached to it in a particular case will vary according to the nature and seriousness of the crimes of which the requested person has been convicted or stands accused. As was made clear in HH delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact of extradition upon family. Celinski requires the District Judge to list all of the factors weighing for or against extradition and in light of those factors to reach a reasoned determination as to whether extradition would or would not be a disproportionate interference with the defendant's Art.8 rights.
The medical evidence
Before the District Judge the appellant relied on medical evidence from Dr Dawn Friday in a letter dated 18 October 2018. This said:
(a) The appellant was diagnosed as HIV positive in December 2016 at Northwick Park Hospital.
(b) At that time he had a high viral load which was successfully treated with drugs.
(c) He was also found to be positive for hepatitis C.
(d) Although he responded to treatment well and became clear of that virus, he had developed cirrhosis of the liver as a consequence of it remaining untreated for a period of time.
(e) He is at high...
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