Roman Kalniets v District Court of Ogre
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GOLDRING,MR JUSTICE SWEENEY |
| Judgment Date | 03 March 2009 |
| Neutral Citation | [2009] EWHC 534 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10705/2008 |
| Date | 03 March 2009 |
[2009] EWHC 534 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Goldring
Mr Justice Sweeney
CO/10705/2008
Daniel Jones (instructed by Dass Solicitors) appeared on behalf of the Appellant
John Jones (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
(Approved by the court)
: Sweeney J will give the first judgment of the court.
MR JUSTICE SWEENEYIntroduction
This is an appeal against an order of District Judge Purdy, sitting at the City of Westminster Magistrates' Court on 3rd November 2008, that the appellant, Roman Kalniets, aged 24, be extradited to Latvia in order to face a prosecution for murder, pursuant to section 21(3) of the Extradition Act 2003 (“the 2003 Act”).
The order followed a contested hearing, during which the appellant gave evidence to the effect, amongst other things, that he feared for his safety if, in the future, he was to be held in custody in a Latvian prison. The learned District Judge rejected the appellant's evidence as unimpressive. He found as a fact that there were no human rights risks to the appellant if he was to be returned to Latvia.
The sole ground upon which this appeal is now pursued is that the appellant's extradition would be contrary to section 21 of the 2003 Act, in that there is a real risk that the appellant's rights under Article 3 of the European Convention on Human Rights would be breached by the prison conditions that he is likely to be exposed to in Latvia if extradited, on the basis that it is likely that aspects of those conditions will amount to inhuman or degrading treatment.
In support of this ground, the appellant seeks to rely upon two pieces of fresh evidence as follows:
(1) An expert report by Marina Dombrovksa dated 20th February 2009, together with an addendum dated 26th February 2009.
(2) A report of the Committee for the Prevention of Torture on a visit to Latvia in 2004.
Despite the late arrival of this fresh evidence, there is no application for an adjournment of this argument by the respondent, but both the application to adduce the evidence and the appeal itself are opposed.
Background
The District Court of Ogre, a Latvian judicial authority, seeks the appellant's extradition for an offence of murder contrary to section 116 of Latvian criminal law, pursuant to a European arrest warrant issued on 16th April 2008, and certified by the Serious Organised Crime Agency on 9th May 2008. Latvia is a Category 1 territory under the 2003 Act. Accordingly, Part I of the Act applies to these proceedings. Latvia is a member of the EU, and a signatory to the European Convention on Human Rights.
The arrest warrant alleges that the appellant murdered one Mihails Mihalkins on 6th December 2006 in the following terms:
“On 6th December 2006, in the flat of Roman Kalniets in Spidolas Street 17-14, Lielvarde, Ogre District, Roman Kalniets shot with a hunting shotgun in the direction of Mihails Mihalkins and wounded him to death in the presence of Tatjana Cervakova and Vitalijs Alsevskis. On the next day the dead body of Mihails Mihalkins was taken to woods in Birzgale, Ogre District and buried there. On 14th April 2007 the suspect, Vitalijs Alsevskis, during examination of evidence on the spot, indicated the place where, on 7th December 2006, [the] dead body of Mihails Mihalkins was buried. There was a skull found which, in accordance with an expert opinion, was admitted as the skull of Mihails Mihalkins.”
The appellant was arrested on 3rd August 2008. The extradition hearing was opened on 21st August 2008 and adjourned part heard. The substantive hearing took place on 3rd November 2008 before District Judge Purdy. No skeleton argument had been served for the hearing, although the court had directed that one be served by 24th October 2008. An application to adjourn to obtain further evidence appears to have been refused.
The appellant gave evidence that he feared for his safety if he was to be returned to Latvia. There was a letter from the judicial authority before the court, dealing with a number of the issues raised by the appellant. The appellant's evidence was that he had been in custody in Latvia in 2004-2005. The cells had 15-20 occupants in them. With the connivance of prison staff, he had been assaulted twice. He had not reported the assaults, but believed that he would suffer the same treatment again. In 2006, he asserted, he had been assaulted by persons unknown acting on behalf of the person who had alleged his involvement in the murder. Thus, he feared that he would be subject to extreme violence on his return.
In giving judgment, the District Judge indicated that he found the appellant to be an unimpressive witness. In those circumstances, he found that there was no human rights risk to the appellant, and ordered his extradition accordingly. The appellant filed a notice of appeal on 7th November 2008 and, following rulings by Collins J, Marina Dombrovksa's report was eventually served on 24th February 2009, therefore not long before this hearing.
The law
It is common ground that the aim of the Council Framework Decision establishing the European arrest warrant was to establish a simpler, quicker, more effective procedure, founded on Member States' confidence in the integrity of each other's legal and judicial systems: see, for example, the speech of Lord Bingham in Office of the King's Prosecutor v Armas [2005] UKHL 67.
The correct test for determining whether extradition from the United Kingdom should be stayed on the basis of a threat to the requested person's Article 3 rights in the requesting country was set out by Lord Bingham in R v Special Adjudicator ex parte Ullah [2004] UKHL 26, when he said:
“In relation to Article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment.”
It is trite law that it is normally incumbent on those involved in litigation in first instance courts or tribunals, to advance their whole case at first instance, and to adduce all the evidence on which they want or need to rely. This appeal is brought under section 26 of the 2003 Act. The relevant...
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