Case No. CO/3750/2010 
Neutral Citation Number: [2010] EWHC 1556 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 15th June 2010
 
B e f o r e: 

MR JUSTICE CRANSTON
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Between: 
THE QUEEN ON THE APPLICATION OF ZDENEK TOUS 
Claimant

v 

DISTRICT COURT IN NYMBURK, CZECH REPUBLIC 
Defendant 
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Mr Ben Keith (instructed by Messrs Newmans LLP) appeared on behalf of the Claimant 
Ms Gemma Lindfield (instructed by CPS Special Crime Division, Extradition Unit) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE CRANSTON:  This is an appeal under section 26 of the Extradition Act 2003 ("the 2003 Act") against a decision of District Judge Evans sitting at the City of Westminster Magistrates' Court.  On 16th March of this year, District Judge Evans ordered the appellant's surrender to the Czech Republic under an European Arrest Warrant.  The appellant now appeals on the ground that the District Judge erred in ruling that he would be entitled to a retrial upon return to the Czech Republic.
Background 
2.	The extradition is sought in this case under an European Arrest Warrant which was issued by Judge Vaclav Krejcik in the District Court in Nymburk, dated 25th September 2009.  That warrant requested the extradition of the appellant to serve a four year sentence which had been imposed for two offences under Czech law which are described as grievous bodily harm and endangering under the influence of a habit forming substance.
3.	The conduct which is set out in paragraph (e) of the warrant explains in brief that, on 3rd April 2008, the appellant was driving a motor vehicle while under the influence of alcohol.  He was speeding and he overtook another vehicle and as a result two pedestrians were injured, one fatally, the other seriously.  A passenger in the appellant's car sustained more minor injuries, as did one of the other drivers.  The warrant does not give the date but at some point after April 2008 the appellant was convicted and sentenced in his absence to the period of four years.
4.	As well as the conduct which I have outlined set out in paragraph (e), the following is highlighted under part (d) of the warrant, entitled "Decision awarded in the absence of the person required": 
"‑ the person involved has not been personally summoned nor in any other way informed about the day and place of the proceedings, which led to the decision awarded in her absence, but after the transfer she has the following legal guarantees (which may be granted in advance)."
Then under the instruction in paragraph (d) "State here more proximate data on legal guarantees", there appears Article 306(a), which is entitled "the termination of the grounds of proceedings to be held against the fugitive".  Subsection (2) of that reads as follows: 
"(2) If the proceedings against the fugitive has been finished by a judgement of conviction in force and later the reason will expire, for which the proceedings against the fugitive had been conducted, the Court of the first instance will cancel such a judgement on the ground of an application of the convict submitted within Eight days after the delivery of the judgement and in the extent mentioned in paragraph 1 the trial will be carried on again. The convict must be informed about the right to suggest the cancellation of the judgement in force. Adequately proceeds the Court, if it is required by an international treaty, which is binding for the Czech Republic [sic]."
5.	In February of this year, the appellant was arrested in this country in connection with the warrant and cautioned.  On arrest the appellant made the following reply to the caution:
"I do not feel guilty.  I was intoxicated but that accident was not my fault."
The matter came before District Judge Tubbs on 18th February of this year.  Bail was refused and the appellant was remanded in custody.  
6.	The matter then came before District Judge Evans on 16th March.  It was contended on the appellant's behalf that the warrant was not clear in relation to his rights to a retrial when he returned to the Czech Republic and that consequently the Czech judicial authority ought to provide more detail.  Notwithstanding that submission, District Judge Evans ordered the appellant's extradition.  He said: 
"I am satisfied that there was a conviction in his absence and that he did not deliberately absent himself and therefore I am required to determine under S.20(5) whether he is entitled to a retrial.  
In Para 2(d) the warrant sets out Article 306 of Cz Criminal Code and it is clear he does have the right to a retrial if he applies. I need to be satisfied under S.20(8) he has the minimum protections provided by Article 6 for a fair trial and it is clear that he does.  Accordingly there are no bars or human rights issues advanced."
The law 
7.	Section 20 of the Act sets out the issues that the extradition court must consider where a requested person has been convicted in his absence of the offence specified in the warrant.  Subsection (5) provides that, if the judge decides that a person tried in his absence has not deliberately absented himself from his trial, the judge must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.  If the judge decides that question in the affirmative, the judge then proceeds to consider the other pre‑requisites to extradition.  If the judge decides that the person is not entitled to a retrial, the judge must order that person's discharge. 
8.	Subsection (8) of section 20 provides that the judge must not decide the question in subsection (5) in the affirmative unless in any proceedings that it is said would constitute a retrial or a review amounting to a retrial the person has rights (a) to defend himself or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require and (b) the right to examine or have witnesses examined and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
9.	The 2003 Act gives effect to the Framework Decision of June 2002 (2002/584/JHA).  Article 5(1) of the Framework Decision refers to the guarantees to be provided to a person who has not deliberately absented herself from trial and reads in part as follows: 
"1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment..." 
10.	The Council Framework Decision of 26th February 2009 (2009/299/JHA) amends the 2002 Framework Decision, in essence enhancing the procedural rights of persons who have been convicted in their absence.  In particular, article 4a(d) reads that the executing judicial authority may refuse to execute the European arrest warrant if the person did not appear in person at the trial unless it states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member state:  
"(d) was not personally served with the decision but:
 (i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allow the merits of the case, including fresh evidence, to be re‑examined, and which may lead to the original decision being reversed;
and
 (ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant."
11.	In Chen v Romania [2006] EWHC 1752 (Admin), Mitting J considered the effect of section 85 of the 2003 Act which is equivalent to section 20 under Part 2 of the Act.  That case established that, in relation to whether an individual convicted in his absence would receive a retrial which met the requirements of Article 6, if extradited, it was unnecessary to examine the practices in the state to which the person was to be extradited provided that the Article 6 rights were clearly incorporated into the law of that state and that its terms would prevail if there was any conflict between it and domestic law.  At paragraph 8 Mitting J said:
"Section 85(5) requires the judge to decide whether a convicted person who has not deliberately absented himself from his trial would be entitled to a retrial et cetera in which he would have the rights specified in section 85(8). 'Entitled' as a matter or ordinary language must mean 'has the right under law'. It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion. Free of authority, I would hold it is neither necessary nor right to examine what a requesting state does in practice. Its law will either provide clearly for the relevant entitlement or it will not."
Maurice Kay LJ agreed.
12.	The upshot of Murtati v Albania [2008] EWHC 2856 (Admin) and other authorities such as Gradica v Deputy Public Prosecutor of Turin, Italy [2009] EWHC 2846 (Admin) is that, in cases where a person has been tried in his absence, evidence that Article 6 has been incorporated into the law of the requesting state and that that state recognises the case law of the European Court of Human Rights supports a finding that the requirement of section 20(5) of the 2003 Act is satisfied.  The statutory safeguard in section 20(8) is satisfied where the requesting state can show that its law complies with Article 6.  For a requested person to succeed in an argument that he should be discharged under section 20, he must show that subsequent proceedings would not comply with Article 6.
13.	As far as the burden of proof is concerned, it is on the judicial authority to satisfy the court about answering the questions in section 20 in the affirmative and it must do that to the criminal standard (section 206).  However, in my view, the requested person must adduce some evidence at least which raises an issue that the guarantee in section 20(5) might not be met in the requesting state.  It is not for the requesting state to prove affirmatively in the absence of such evidence that the guarantee will not be met.  Support for that comes from the decision of Baksys v Lithuania [2007] EWHC 2838 (Admin).
The appellant's case 
14.	In the appellant's case, Mr Keith has cogently contended that the District Judge did not properly assess the issue of whether this appellant has a right of retrial on return to the Czech Republic.  Consequently, the District Judge came to the wrong conclusion.  The burden was on the judicial authority to satisfy him, and to the criminal standard of proof, that the appellant was not entitled to an Article 6 compliant retrial.  While the Czech judicial authority had provided some material in the warrant, that fell short of what is required to show that the appellant is entitled to a retrial if returned to the Czech Republic.  For example, it is not clear whether the time in which the retrial can be applied for has expired.  Article 306 states that the appellant can apply for cancellation of the judgment within eight days after the delivery of the judgment.  In Mr Keith's submission, it is not clear when the period of eight days is triggered.  Is it from the date of judgment, is it from the date of service of the judgment or is it some other date?  That matter is unclear and there was simply no evidence to show when the 8 days run before the District Judge.  Consequently, there must be reasonable doubt as to this appellant's right to a retrial if returned to the Czech Republic.  The judicial authority could have adduced evidence to clarify that matter but has chosen not to do so.  
15.	Further, Mr Keith submits that the amendments to the Framework Decision in 2009 underline the failure of the judicial authority in this case.  The amendments introduced by article 4a into the original framework directive emphasise that the requested person has to receive a guarantee that they will receive service of the judgment upon their surrender.  They have to be informed expressly about their right to a retrial and about the time frame in which the retrial must be requested.  Because in this case there is insufficient information in the warrant about the date of the judgment and when the time limits are triggered, those requirements of the amended framework directive have not been met.  Again, there is an absence of clarification from the judicial authority as to these matters.
Discussion and conclusions 
16.	Reaching a conclusion in this case is not helped by the quality of the warrant.  We are not told the derivation of article 306, although the District Judge, perhaps because of his greater knowledge of these matters, attributed it to the Czech Criminal Code.  The sex of the appellant is wrongly stated as female in several crucial passages.  The translation of article 306 is such that its meaning is far from being clear.
17.	Notwithstanding these difficulties, however, my view is that the passage in paragraph (d) of the warrant was sufficient for District Judge Evans to conclude that the appellant will be afforded a retrial on return to the Czech Republic.  Paragraph (d) of the warrant requires that the Czech judicial authority should provide legal guarantees regarding retrial in the event that it cannot be shown that the appellant was deliberately absent.  In completing paragraph (d) of the warrant, the judicial authority has asserted that "after the transfer she [sic] has the following legal guarantees" and there are then set out the provisions of Article 306.  That assertion in paragraph (d) of the warrant, that the appellant has those legal guarantees, coupled with the information set out at the outset of paragraph (d), was sufficient in my view to satisfy the District Judge so he was sure that the right of retrial will be afforded on return to the Czech Republic.  The Czech judicial authority explains there that it has served a copy of the judgment on the appellant but he will be served with it on return and told of his right to appeal.  At that point his right to appeal will arise and must be exercised within the period of eight days.  In my view, since the Czech Republic is a party to the European Convention on Human Rights, it is additionally clear that the Czech court will proceed under article 306 in conformity with its treaty obligations.  
18.	As far as the amended framework directive is concerned, it seems to me that it does not provide any additional guarantees to the appellant which are not stated within paragraph (d) of the warrant incorporating, as it does, the explanation and article 306 of the Czech Criminal Code.  In any event, the amended framework decision is not the determining provisions as far as this court is concerned for, although the 2003 Act must be read against the backdrop of the Framework Decision, it is the 2003 Act to which the court must pay direct attention where it is clear.
19.	The upshot is that in my view the District Judge was correct in concluding that the warrant set out clearly a right of retrial which will be triggered on the return of appellant to the Czech Republic.  He was thus correct in answering the questions in subsection (5) and subsection (8) of section 20.  In that event, I dismiss the appeal.
MR KEITH:  My Lord, might I have a detailed assessment of legal aid? 
MR JUSTICE CRANSTON:  Yes.  Well, thank you very much.