Valerio Obert v Public Prosecutor's Office of Appeal of Ioannina, Greece

JurisdictionEngland & Wales
JudgeMr Justice Nicol,Lord Justice Treacy
Judgment Date24 February 2017
Neutral Citation[2017] EWHC 303 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date24 February 2017
Docket NumberCase No: CO/4154/2016

[2017] EWHC 303 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Treacy

Mr Justice Nicol

Case No: CO/4154/2016

Between:
Valerio Obert
Appellant
and
Public Prosecutor's Office of Appeal of Ioannina, Greece
Defendant

Edward Fitzgerald QC and Ben Keith (instructed by Kaim Todner) for the Appellant

Julia Farrant (instructed by CPS Extradition Unit) for the Respondent

Hearing dates: 2 nd February 2017

Approved Judgment

Mr Justice Nicol
1

This is an appeal, which is brought with the permission of Collins J., against the decision of District Judge Snow of 11 th August 2016. DJ Snow ordered the extradition of the Appellant to Greece pursuant to an accusation European Arrest Warrant ('EAW') for him to be prosecuted for an offence equivalent to handling stolen goods.

2

On 20 th April 2002 the Appellant was stopped at a border crossing between Albania and Greece called Kakklavia. He was driving a Mercedes CLK 200 Kompressor motor car. The EAW alleges that the car was stolen and he was, in effect, handling the stolen car. The car was said to be of high value, up to 46,995 Euros.

3

The Greek domestic arrest warrant was issued on 24 th February 2004. In further information from the Greek Judicial Authority dated 14 th April 2016, the District Judge was told that a case file had been sent to the public prosecutor on 9 th December 2004. The EAW was issued on 30 th July 2014.

4

The Appellant is an Italian national. He moved to the UK in 2012 and has been employed as a chef. The first that the Appellant knew of the EAW was when he was arrested because of it during a visit to Italy on 17 th January 2015. The Italian courts refused to extradite him to Greece. In a judgment of 14 th April 2015 the Rome Court of Appeal, Criminal Division IV explained that a prosecution in Italy would be time-barred. Consequently, Italy was entitled to refuse extradition pursuant to the European Convention on Extradition 1957 Article 10. The 1957 Convention has now been replaced by the system of surrender between Member States pursuant to the Framework Decision of the Council (2002/584/JHA). However, Article 32 of the Framework Decision makes transitional provisions and allows a Member State to deal with requests relating to acts committed before a specified date (which can be no later than 7 th August 2002) in accordance with the earlier Convention. I assume that Italy took advantage of that option and hence the reference to the 1957 Convention.

5

The National Crime Agency certified the EAW in the UK on 17 th December 2015 and the Appellant was arrested the same day.

6

At the extradition hearing the Appellant gave evidence in accordance with his proof. His evidence was not disputed.

7

Before the District Judge the Appellant raised a number of objections to extradition.

i) He argued that extradition was barred because, by lapse of time, it would now be unjust or oppressive to extradite him – see the Extradition Act 2003 (' EA') s.14. The District Judge found that the Appellant was not a fugitive and so, in principle, it was open to him to argue that extradition was barred by lapse of time and s.14. The delay had been extensive, but, the District Judge found, it would not render his extradition either unjust or oppressive.

ii) The Appellant argued that the condition of the Greek prison to which he was likely to be sent (Ioannina) was such that there were substantial grounds for believing that he would be subjected to inhuman or degrading treatment. In those circumstances, he submitted, his rights under Article 3 of the European Convention on Human Rights ('ECHR') would be infringed and his extradition was, in consequence, barred by EA s.21A(1)(a). He relied on reports from the Committee for the Prevention of Torture ('CPT') in 2014 (reporting on an inspection in 2013) on a number of Greek prisons including Ioannina and another in 2016 (reporting on an inspection of certain other Greek prisons in 2015), a number of decisions of this court and the European Court of Human Rights and also a report written for his case by a Professor Tsitselikis, a Greek Human Rights expert.

The District Judge rejected this argument and was not persuaded that the usual presumption that Member States and Contracting Parties to the ECHR would comply with their obligations under the Convention had been displaced.

iii) The Appellant argued that his extradition would be contrary to his rights under Article 8 of the ECHR and for this reason as well his extradition was barred under EA s.21A. He had lived in the UK since 2012. He was a single man, but he had an adult daughter who had twin girls aged 2. She was separated from her partner and lived in a refuge. He provided her with financial support. He relied as well on the delay by the Greek authorities, which was largely unexplained.

The District Judge considered each of the factors weighing in favour of extradition and those against. He concluded that extradition would not be a disproportionate interference with the Appellant's private or family life.

iv) The Appellant also argued that it would be an abuse of process for him to be extradited now after the Greek authorities had tried and failed to have him extradited from Italy. He also gave evidence that, after the Italians had refused to extradite him, he had had a meeting at the Greek consulate and he had been told that they would do their best to try to discharge the criminal proceedings in Greece.

The District Judge held that there was no abuse. Italy had refused extradition because its law set a limitation period on prosecuting such offences. There was no similar restriction in the UK. A Judicial Authority was not precluded by the refusal of one Member State to extradite from seeking extradition from another Member State.

8

On the Appellant's behalf, Mr Fitzgerald QC pursues each of these same arguments. I will consider them in turn.

Section 14: passage of time: the law

9

Section 14 of the EA says,

'A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since (a) he is alleged to have committed the extradition offence (where he is accused of its commission)….'

Greece is a 'category 1 terrirtory'.

10

In all but exceptional cases, a requested person cannot rely on this provision if the delay is a consequence of his or her own actions. Thus, generally, a fugitive cannot invoke s.14: see Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 HL and Gomes and Goodyer v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 HL. That is no obstacle to the Appellant in the present case because the Respondent accepted that he was not a fugitive and the District Judge proceeded on that basis.

11

Kakis was a decision under the Fugitive Offenders Act 1987 s.8(3) but this was in materially indistinguishable terms from the equivalent provisions in the EA – see Gomes at [18]. The Requesting State in Gomes was Trinidad and Tobago, a category 2 territory. Hence in that case the provision dealing with the effect of lapse of time was EA s.82, but that is also materially indistinguishable from EA s.14.

12

Lord Brown gave the leading speech in Gomes. He adopted what the Privy Council had said in Knowles v Government of the United States of America [2007] 1 WLR 47 at [31] – see Gomes [32], namely,

'Firstly, the question is not whether it would be unjust or oppressive to try the accused but whether … it would be unjust or oppressive to extradite him… Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be just or oppressive for the requested state to return him…. But thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect a defendant against a trial rendered unjust or oppressive by the passage of time…. Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a trial no longer possible: much will depend on the particular case… Fifthly, there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive…. [for simplicity I have omitted the cross references to the paragraphs of the earlier decision].

13

Lord Brown added to this distillation of principle. Thus, he said at [33],

'the second of these propositions, it will be noted, invites consideration of whether, in any particular case, "a fair trial is impossible", and that indeed we regard as the essential question underlying any application for a s.82 bar on the ground that the passage of time has made it unjust to extradite the accused.'

14

At first sight it may be thought that there is a tension between Lord Brown's endorsement of the first Knowles principle with his gloss on the second Knowles principle. However, the reconciliation seems to me to be that, if the court of trial in the requesting state would be bound to conclude that the accused could not be fairly tried because of the passage of time, then the UK court (as the requested state) should conclude that it would be unjust to extradite him.

15

At [34] and [35] of Gomes Lord Brown made further comments on the third of the Knowles principles. He said,

'[34] The third of the Knowles propositions requires a requested state to have regard to the domestic law safeguards in the requesting state. As Woodcock [2004] 1 WLR 1979 observed at [21], the domestic court of the requested state has obvious advantages in deciding whether or not a fair trial is now possible: "That court will have an altogether clearer picture than we have of precisely what evidence is...

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