Vladimir Kirsanov v Viru County Court, Estonia
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Dingemans |
| Judgment Date | 25 October 2017 |
| Neutral Citation | [2017] EWHC 2593 (Admin) |
| Docket Number | Case No: CO/5765/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 October 2017 |
[2017] EWHC 2593 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Dingemans
Case No: CO/5765/2017
David Williams (instructed by McMillan Williams Solicitors) for the Appellant
Florence Iveson (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 6 October 2017
Introduction
The Appellant seeks to challenge the order of District Judge Ikram sitting in the Westminster Magistrates' Court that he should be extradited to Estonia. The judgment and order were dated 11 November 2016. The Appellant has permission to appeal from William Davis J on one ground, that it is arguable the European Arrest Warrant ["EAW"] did not comply with Section 2 of the Extradition Act 2003 ("the Act"], in that the EAW did not give all the required particulars, and that further information supplied cannot remedy the deficiency. The judge refused permission to appeal on all other grounds. The Appellant seeks to renew the application on one ground, that his extradition is barred under Section 21 of the Act as a disproportionate breach of his rights under ECHR Article 8.
This is the judgment of the Court to which both of us have contributed.
The Facts
The Appellant is an Estonian born on 29 August 1990. His extradition to Estonia is sought on an EAW issued by the Viru County Court, Narva, Estonia on 22 July 2016. The EAW is a conviction warrant and seeks the Appellant's extradition in relation to an offence of robbery committed on 6 April 2011. The Appellant was convicted on 1 March 2012 and sentenced to two years' imprisonment. His sentence was increased by a further two years' imprisonment, relating to the unserved custodial element of a suspended sentence of two years' imprisonment which was imposed on him on 10 February 2009 for a separate offence of robbery. The EAW therefore seeks his return to Estonia in order to serve a total sentence of four years' imprisonment.
The Secretary of State has designated Estonia as a Category 1 territory for the purposes of Part 1 of the Extradition Act 2003.
A previous EAW in similar terms was issued by the same Issuing Judicial Authority ["IJA"] in January 2013 and was determined in proceedings concluded on 5 May 2017. In relation to that warrant, District Judge McPhee concluded that that EAW gave insufficient information in that it did not particularise the facts of the earlier offence of robbery.
The earlier warrant gave a more truncated text (in Box (f)) as to the offending which led to the extradition warrant. The text did specify two offences, and sentences in 2009 and 2012. However the detail was considerably restricted when compared to the EAW now before us. There were no particulars of the 2008 offence.
In the final hearing before DJ McPhee relating to the previous EAW, information was provided as follows here, indicating that Estonian law did not permit the amendment of an EAW, once issued:
"Referring to your letter regarding the surrender of Vladimir KIRSANOV (dob 29.08.1990) from UK to Estonia we have to clarify once again, under Estonian law it is not possible to reissue the European arrest warrant on the grounds you explained in your letter.
And how the previous unserved sentence make influence to the new sentence, has been already explained by the authority, issued the European arrest warrant, Viru County Court. Such situations is very frequent in Estonian practice and never before this rises any problems. But as I already told, there is no possibilities under Estonian law to reissue the mentioned EAW."
Mr Williams for the Appellant relies on this as bearing on the Section 21/Article 8 appeal, as set out below.
In the light of the first Ground of Appeal it is appropriate for us to set out fully the relevant extracts from the subsequent EAW and then the relevant additional information upon which DJ Ikram ordered the extradition.
The information included in the EAW germane to Ground 1 is as follows:
"(b) Decision on which the warrant is based:
1. Arrest warrant or judicial decision having the same effect: March 14, 2012 ruling of Viru County Court, Narva Courthouse in criminal matter No. 1–11-13151
Type: Ruling on declaring a person to be a fugitive.
2. Enforceable judgment: March 1, 2012 judgment of Viru County Court, Narva Courthouse which took effect on March 9, 2012
Reference: 1–11-13151
(c) Indications on the length of the sentence:
1. Maximum length of the custodial sentence or detention order that may be imposed for the offence(s):-
2. Length of the custodial sentence or detention order imposed: 4 years
Remaining sentence to be served: 4 years
…
(e) Offences:
Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person:
Vladimir Kirsanov, as a person convicted by the September 1, 2009 judgment of Viru County Court, Narva Courthouse pursuant to §200 (2) 7) and 9) of the Penal Code, on April 6, 2011 at 5.30a.m., while in a state of alcohol intoxication, in Narva, in the area between the buildings located at Tallina mnt. 22 and 24, acting jointly with Aleksandr Hoblov and Vassili Jakovlev with the attention of taking away property belonging to another person, assaulted Juri Filatov, kicked the latter in the face and body, using his fists and feet, causing physical pain, and appropriated the victim's mobile phone Nokia N76, value EUR 100, and wallet containing EUR 50 worth of bank notes.
Consequently, Vladimir Kirsanov, as a person that has previously committed robbery, committed the taking away of movable property of another by use of violence with the intention of illegal appropriate in a group i.e. an offence provided in §200 (2) 4) and 7) of the Penal Code.
Nature and legal classification of the offence(s) and the applicable statutory provision/code:
§200 (2) 4) and 7) of the Penal Code – Taking away of movable property of another by use of violence with the intention of illegal appropriation. The same act if committed by a person who has previously committed robbery, or manslaughter in connection with robbery or for the purpose of any other personal gain, or extortion: if committed by a group or criminal organization is punishable by three to fifteen years' imprisonment.
…
(f) Other circumstances relevant to the case (optional information):
(NB: This could cover remarks on extraterritoriality, interruption of periods of time limitation and other consequences of the offence)
By the February 10, 2009 judgment of Viru County Court, Narva Courthouse in criminal matter No. 1–08- 12735 Vladimir Kirsanov (personal ID code 39008293725) was convicted pursuant to §200 (2) 7) and 9) of the Penal Code (robbery) and punished by imprisonment of 3 (three) years. The prescribed punishment was reduced by 1/3 (one third), i.e. by 12 (twelve) months and the final punishment prescribed was 2 (two) years of imprisonment. In applying provisions of § 74 (1) and (3) of the Penal Code, it was ordered that the punishment would not be enforced if Vladimir Kirsanov did not commit a new criminal offence within the three year period of probation and complied with the following supervisory requirements and obligations imposed on him for the period of supervision of conduct.
…
The court judgment took effect on February 26, 2009.
Within the probation period, i.e. on April 6, 2011, Vladimir Kirsanov committed a new offence provided in §200 (2) 4) and 7) of the Penal Code (robbery) – criminal matter No. 1–11-13151. § 65 of the Penal Code provides for imposition of aggregate punishment. Pursuant to § 65 (2) of the Penal Code (wording valid on January 1, 2012), if an offender commits another criminal offence after the pronouncement of the conviction but before the sentence is served in full, the unserved part of the sentence imposed by the previous judgment shall be added to the punishment imposed for the new offence in accordance with the provisions of 64 (2), (4) and (5) of this Code. In such case, the aggregate punishment shall not exceed the maximum term of the given type of punishment.
Consequently, the court imposed on Vladimir Kirsanov a punishment for committing the new offence and formed an aggregate punishment pursuant to § 65 (2) of the Penal Code (March 1, 2012 judgment of Viru County Court, Narva Courthouse in criminal matter No. 1–11- 13151). By the March 1, 2012 judgment of Viru County Court, Narva Courthouse in criminal matter No. 1–11- 13151 Vladimir Kirsanov was convicted pursuant to § 200 (2) 4) and 7) of the Penal Code (robbery) and punished by 2 (two) years of imprisonment. The punishment imposed pursuant to § 65 (2) of the Penal Code was increased by the unserved part (2 years of imprisonment) of the sentence imposed by the February 10, 2009 judgment of Viru County Court, Narva Courthouse, and an aggregate punishment of 4 (four) years of imprisonment was imposed on Vladimir Kirsanov. The term of punishment was calculated as from March 1, 2012. As a preventive measure, taking into custody was imposed on Vladimir Kirsanov, and it was decided to take him into custody in the courtroom.
At the February 23, 2012 court session in which Vladimir Kirsanov participated as well, the judge announced that the conclusion of the judgment would be announced on March 1, 2012 at 11 a.m. Vladimir Kirsanov did not appear to the announcement of the March 1, 2012 judgment. The court judgment took effect on March 9, 2012.
By the March 2, 2012 ruling of Viru County Court, Narva Courthouse, the accused Vladimir Kirsanov was subjected to compelled attendance of the announcement of the judgment taking place at 10 a.m. on March 7, 2012 at the Narva Courthouse of Viru...
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