Veronica De Zorzi v Attorney General Appeal Court of Paris (France)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham,Lady Justice Rafferty |
| Judgment Date | 29 July 2019 |
| Neutral Citation | [2019] EWHC 2062 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5208/2018 |
| Date | 29 July 2019 |
[2019] EWHC 2062 (Admin)
Lady Justice Rafferty
Mr Justice Garnham
Case No: CO/5208/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Graeme Hall (instructed by Tuckers Solicitors) for the Appellant
Jonathan Swain (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 26th June 2019
Approved Judgment
Introduction
Is a requested person a “fugitive” if she fails to return to the jurisdiction of the requesting state from the country of which she is a resident in breach of the obligation placed on her by the courts of the requesting state at a time when she was in her home country? That is the critical question which arises in this appeal by Ms Veronica De Zorzi against the decision of District Judge Zani on 19 December 2018 ordering her extradition to France.
We have had the benefit of detailed written and oral submissions from Mr Graeme Hall on behalf of the Appellant and Mr Jonathan Swain on behalf of the Respondent. I am grateful to both for their clear and economically expressed submissions.
The History
The factual background to this appeal is not entirely straightforward. The account set out below is gleaned from a number of documents presented to us, including the Appellant's witness statement, the further information provided by the requesting state, the statement of Mr RJ Portegies, the Appellant's Dutch lawyer, a chronology prepared by Mr Hall and, importantly, the decision of the District Judge. The detail is significant to the resolution of this appeal.
The Appellant was born on 15 November 1963 and is a dual South African and Italian national. She has resided in the Netherlands since 1985.
It is common ground that on 14 July 2000, the Appellant was arrested by the French police at the Gare du Nord in Paris, on five charges of buying, possessing, trafficking, importing and smuggling 1400 doses of LSD from the Netherlands. She was brought before a court and released the following day under “judicial supervision”. She says in her witness statement that she was represented in the police station and at court by the same lawyer.
She told the District Judge that she was told by the French judge that she was free to leave France but would have to return to France the following year. According to the further information, she was required to respond to summonses issued by the French Court and to inform the court of any change of address. (It is to be noted that there is an error in the District Judge's Ruling at paragraph 28(iii) when he refers to 15 June 2002; it should have been 15 June 2000.)
The French Court wrote to her on 30 October 2000, at her Dutch address, indicating that in accordance with the provisions of Article 175 of the French Code of Criminal Procedure, the necessary information had been obtained and the record of the proceedings would be sent to the public prosecutor 20 days later. We have seen a copy of that letter.
The Appellant told the District Judge that she received notification in 2001 requiring her to attend the court and she said she duly appeared. She told him she “was again allowed to leave court after the hearing”. In her witness statement she says that she was represented on this occasion by the same lawyer who had represented her before. She says there that “the Court said to me I could go and that they did not think I would hear anything further from them although they were not sure.”
According to the further information, the Appellant appeared before the court following a summons by the French examining magistrate. We were told during argument that this was on 28 June 2001 and that was not challenged. (It appears there is another error in the District Judge Ruling at this point; his reference to 28 June 2002 should have been 28 June 2001.)
According to the further information, although she appeared before the court on that occasion, she was not present for the judgment, when she was convicted of the offences charged. Instead, it is said, her lawyer presented a medical certificate in English which the court had translated. It was said to consist of a certificate written by a homeopathist “which was not detailed” and which the court rejected, holding that the excuse provided by this letter was insufficient.
We have seen, and discuss below, a short, handwritten letter, written in English by a Dutch doctor, dated 24 January 2002 and relating to a later hearing. Plainly, that does not refer to the hearing on 28 June 2001. It follows that either there was another inadequate letter from the Appellant's doctor produced by the Appellant's lawyer to the court in June 2001, or the further information is in error and the reference by the French authorities to a letter from a doctor seeking to excuse the Appellant's attendance relates to the later hearing. Certainly, no letter relating to the hearing on 28 June 2001 was produced to the District Judge or has been shown to us.
In any event, it is clear that on 28 June 2001, a request was made by the French authorities for the provisional arrest of the Appellant for the purpose of extradition. That emerges both from the further information and from a statement from the Amsterdam immigration police confirming the Appellant's arrest on 17 December 2001 pursuant to the Dutch Extradition Act. According to the further information, that warrant was issued as a result of a failure to comply with the obligations of her judicial supervision. It is not immediately obvious why it would be necessary to issue such a request if the Appellant was present in court at the time. Further, it is to be noted that the further information asserts that “there was no period of (her) being unlawfully at large”.
On 27 December 2001, the French Ministry of Justice issued a request under the 1957 European Convention on Extradition (“1957 Convention”) seeking the Appellant's surrender “for the purpose of enforcing an irrevocable prison sentence of three years…”
The Appellant appealed the sentence of 3 years and the appeal was listed for February 2002.
As noted below, we have been shown a copy of a letter from someone called “E. Stiekema”, a doctor in Amsterdam. The letter is handwritten and difficult to read. However, it is dated 24 January 2002 and appears to say that the Appellant “is not able because of physical and mental problems to appear in court in France on 20 February 2002”. The Appellant did not appear on that occasion and it appears the hearing was adjourned.
A subsequent hearing was fixed for 5 June 2002. The Appellant was summonsed to that hearing but did not attend. She was represented by her lawyer. She later received notification from the French Court that the Court of Appeal had upheld the three-year prison sentence for the offences committed in July 2000 and that a warrant had been issued for her arrest. Her failure to attend the French Court in 2002 put her in breach of the terms of the judicial supervision imposed in July 2000.
The French authorities sought her extradition from the Netherlands pursuant to the 1957 Convention and the Dutch Extradition Act. She was arrested in the Netherlands on that warrant in 2003. She resisted extradition from Holland. On 19 September 2005 a European Arrest Warrant (“the first EAW”) was issued in respect of the same criminal conduct but was not enforced.
On 7 October 2005, the Dutch courts refused the extradition request, a decision confirmed by the Dutch Minister for Justice on 9 January 2007.
On 6 October 2015, the French authorities published an alert for the first EAW. That first EAW was certified by the National Crime Agency (NCA) on 28 October 2016.
On 29 July 2018, the Appellant was arrested at Manchester Airport, pursuant to the first EAW, whilst returning home to the Netherlands after visiting her former partner who was seriously ill in a hospital in the city.
For reasons that are opaque, a fresh EAW (“the second EAW”) was issued on 4 September 2018 to replace the first EAW which was withdrawn. The second EAW was certified by the NCA on 21 September 2018. On 11 October 2018, the Appellant was arrested by appointment on the second EAW and the present proceedings were formally opened at Westminster Magistrates' Court.
The Statutory Scheme
The relevant statutory provisions are s11, s14 and s27 of the Extradition Act 2003 (“2003 Act”). S11 provides:
“11 Bars to extradition
(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of…
(c) the passage of time;…”
S14 provides:
“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 he is alleged to have
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it).”
S21 provides:
“(1) If the judge is required to proceed under this section (by virtue of section 20 he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.
(4) If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1...
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