Salvis Auzins v Prosecutor General's Office of the Republic of Latvia

JurisdictionEngland & Wales
JudgeLord Justice Burnett,Mr Justice Cranston
Judgment Date14 April 2016
Neutral Citation[2016] EWHC 802 (Admin)
Docket NumberCase No: CO/5797/2015
CourtQueen's Bench Division (Administrative Court)
Date14 April 2016

[2016] EWHC 802 (Admin)





Royal Courts of Justice

Strand, London, WC2A 2LL


The Rt Hon Lord Justice Burnett

The Hon Mr Justice Cranston

Case No: CO/5797/2015

Salvis Auzins
Prosecutor General's Office of the Republic of Latvia

Mr Geoffrey Robertson QC & Graeme L Hall (instructed by Kaim Todner) for the Appellant

Mr Mark Summers QC & Miss Catherine Brown (instructed by CPS Extradition Unit) for the Respondent

Hearing dates: 03 March 2016 with further written submission 12 April 2016

Lord Justice Burnett

On 20 November 2015 District Judge Goldspring ordered the appellant's surrender to Latvia pursuant to a European arrest warrant ["EAW"] issued on 12 March 2014 and certified by the National Crime Agency on 10 April 2014. The EAW sought the surrender of the appellant for prosecution for a series of four thefts alleged to have been committed between July and November 2007. The total value of the stolen items is put at a little over £6,000. The maximum sentence available for each offence is five years' imprisonment. He appeals against that order on five grounds:

i) The judge should have discharged him because the Latvian authorities were estopped, or the issue of his surrender was res judicata, on account of his discharge in March 2011 in Scotland in extradition proceedings for substantially the same matters in connection with an earlier EAW which was subsequently withdrawn;

ii) Alternatively, the judge should have discharged him because by seeking the appellant's surrender the Latvian judicial authority was abusing the process of the court;

iii) The judge should have discharged him on grounds of delay pursuant to section 14 of the Extradition Act 2003 ["the 2003 Act"];

iv) The judge should have discharged him pursuant to section 21A of the 2003 Act because his surrender would violate his rights under article 8 of the European Convention of Human Rights ["The Convention"];

v) The judge should have discharged him pursuant to section 25 of the 2003 Act because of his physical condition.


Mr Robertson QC, who appears on behalf of the appellant, submits that the first ground engages a question about the permissible scope for a judicial authority to withdraw an EAW and issue another for the same or substantially the same matters, after a court of a Member State on the European Union has refused to execute it following a contested hearing. That, he submits, is a question which should be answered by the Court of Justice of the European Union on a reference because it arises under Council Framework Decision (2002/584/JHA).

The Facts


The appellant, who is 36 years old, was detained in Latvia for two days in November 2007. He admitted his guilt for three of the four offences in evidence before the district judge, much of which was disbelieved. The unequivocal evidence from the Latvian authorities is that he admitted all four offences. The appellant was released by the Latvian authorities subject to conditions. Those required him to reside at a specified address. He was subject to a curfew and prohibited from leaving the Riga District or the territory of Latvia without permission. He was required to register twice a week at a police station. He failed to abide by those conditions with the result that a domestic warrant for his arrest was issued on 28 December 2007. An EAW was issued when it became clear that he had left the country. By 2010 the appellant was living in England but came to the attention of the police whilst visiting Scotland. A check revealed the outstanding EAW. He was arrested pursuant to the EAW in Scotland. Proceedings followed in the Sheriff Court. The appellant resisted surrender on health grounds arising from his having contracted HIV together with hepatitis, tuberculosis and peripheral neuropathy. The appellant had contracted HIV as a result of dental treatment in 2001. The tuberculosis and peripheral neuropathy developed following a car accident in 2008. He relied upon section 25 of the 2003 Act which provides that a requested person must be discharged if his physical or mental condition is such that it would be unjust or oppressive to extradite him. The essence of the argument was that the treatment available in the Latvian prison estate for those suffering from HIV and his associated conditions was so poor that his life would be imperilled were he to be surrendered, with the result that his extradition would be oppressive.


The appellant's argument was resisted by the Latvian judicial authority but in the course of providing information about the treatment available on his surrender it was candid about the consequences of the lack of financial resources available for medical treatment in the prison estate. In a letter dated 11 November 2010 it concluded:

"Taking into consideration the above mentioned health treatment for A. Auzins in the imprisonment institutions of the Republic of Latvia due to insufficient public funding will be restricted, insufficient and incompatible with European guidelines."

A similarly gloomy statement about the quality and extent of the medical care then available on surrender was contained in another communication a month later. The order made by the Sheriff Court on 24 March 2011 recorded that there were no bars to extradition under section 11(1) of the 2003 Act and that the appellant's extradition would be compatible with the Convention. However, the Sheriff concluded that the appellant's "physical condition is such that it would be oppressive to extradite him" and ordered his discharge. There is no judgment available but, on instructions, Mr Robertson tells us that the entire focus of the hearing was on whether the appellant's constellation of medical conditions would be adequately treated in Latvia. The Latvian judicial authority did not appeal.


The order discharging the appellant had no bearing on the validity of the EAW, a judicial act of another Member State, nor on the underlying domestic warrant for his arrest.


The appellant returned to England. The EAW pursuant to which he had been arrested in Scotland remained extant until March 2014, when it was replaced by a new EAW. During that time no further attempt was made to execute it in England. The earlier EAW had been concerned with a fifth offence in addition to those of theft, namely using a counterfeit document. That offence became subject to a statutory time bar in Latvia. In those circumstances the Riga prosecutor's office took a decision deleting that charge from the domestic charge sheet. Other developments in Latvian criminal law resulted in further procedural changes, which are immaterial for the purposes of this appeal. The fresh EAW was issued by the judicial authority to reflect the new domestic state of affairs. The appellant was arrested in Sussex on 24 October 2014 having been stopped whilst driving a vehicle which was uninsured.

The Medical Position


The judge heard oral evidence from Professor Gazzard CBE, which supplemented the extensive written material he had provided. The judge also had before him a selection of the appellant's medical records stretching back to before the Scottish proceedings. Professor Gazzard is an undoubted authority on HIV, holding a professorship of HIV medicine in London University and a consultancy at the Chelsea and Westminster Hospital. He had visited Latvia for one day at the invitation of the British Embassy to discuss HIV care in Latvia, but had no direct knowledge of the care available to those with HIV in the prison system. He did not believe that the general availability of treatment for HIV in Latvia matched the standards in the United Kingdom and was doubtful whether the appellant would be adequately treated. Professor Gazzard confirmed that the appellant required lifelong antiretroviral treatment for his HIV. That was currently being provided in a mix of three drugs. Professor Gazzard's view was that he will require treatment for Hepatitis C when liver reviews show extensive fibrosis. In his oral evidence Professor Gazzard confirmed that no treatment is being provided at the moment for hepatitis and that the likely time scale when the treatment he envisaged would become needed was three or four years away. Professor Gazzard referred in his written reports to "sophisticated tests" relating to Hepatitis C treatment being unavailable in Latvia, but that the modern treatment that he had in mind was not yet available in the United Kingdom either. That appears to be treatment different from that he envisaged in three or four years. With appropriate treatment for HIV and Hepatitis C, neither condition would shorten the appellant's life expectancy. Without treatment for HIV his life expectancy would be as short as two years.


The appellant is being treated for tuberculosis and receives morphine for his peripheral neuropathy. A medical report from his treating doctor dated 20 January 2015 recommended that his morphine be steadily reduced and substituted with Duloxetine (a serotonin-norepinephrine reuptake inhibitor) because he had become dependent. A TENS machine was also suggested as part of the treatment. That was in connection with back pain which apparently came on in 2014 following an unspecified accident. In early 2015 the appellant developed a lump on his neck, which at the time was thought by his treating doctors likely to be associated with the tuberculosis, which was the subject of continuing investigation at the time of the hearing before the judge. In February 2015 a referral to a specialist was recommended which Professor...

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