Stefan Hyman (Barrister, 9BR Extradition). With thanks to Alex Tinsley for his input.
Since our last UK extradition law update, the High Court has handed down three important judgments.
Unfair trials leading to unlawful detention – what is the correct test?
At the beginning of the summer, in Popoviciu v. Curtea de Apel Bucuresti (Romania)  EWHC 1584 (Admin), the Divisional Court (Holroyde LJ; Jay J) set aside an extradition order made in respect of a well-known Romanian businessman following his conviction on counts of abuse of power and bribery and sentence to imprisonment for seven years. The underlying subject matter relates to a development of a plot of land just outside Bucharest around the year 2000.
On assessing the evidence adduced at first instance, together with further evidence introduced on appeal, the Court found that there was a sufficient basis to suggest that the judge charged with investigating and trying the requested person’s case had improperly, corruptly, and criminally associated himself with a witness in the case. The Romanian judge thus lacked the requisite independence and impartiality expected of a court of law. In the absence of any information to contradict the requested person’s evidence, the Court concluded “the evidence shows a real risk that the appellant suffered an extreme example of a lack of judicial impartiality, such that there can be no question as to consequences for the fairness of the trial” .
The case is notable for three reasons.
First and foremost, this is the first case in which an English court has found the “flagrant denial of justice” test (which presupposes a destruction or nullification of the essence of the right to a fair trial) satisfied in relation to an EU Member State. Such findings have, to date, generally been reserved for requesting states in the broader European region, e.g., Turkey and the Russian Federation, or the wider world.
Second, the platform for the finding was Art. 5 ECHR, not Art. 6 ECHR. Strasbourg case-law has long held that a person who had suffered a trial which was flagrantly unfair could rely upon Art. 5 ECHR to prevent his/her extradition for purposes of serving the corresponding term of detention. However, that argument (though acknowledged in some previous domestic case-law) has been less frequently articulated than the standard Art. 6 ECHR submission concerning the (prospective) fairness of a future trial.
Third, the finding is notable because of Their Lordships approach on two specific questions: (a) Can a flagrant denial of justice arise from the aggregation of several features, each of which, taken alone, might not be sufficient alone to nullify the essence of a fair trial? The answer, an emphatic yes, it can (see -); (b) Must a person who claims that a flagrant denial took place in a (past) trial establish this on the balance of probabilities? The answer, no. The test is whether there are substantial grounds for believing that there is a real risk that the original trial was flagrantly unfair. As a matter of principle, therefore, the convicted person is in the same position as an accused (see -).
Notably, arguments concerning flagrant denials of justice of convicted persons are regularly identified in extradition proceedings, but under a different guise. The most common one concerns a trial which takes place in a person’s absence, without his/her deliberate and unequivocal waiver of presence/participation , which cannot be set aside and re-opened upon surrender (see Othman (Abu Qatada) v United Kingdom  55 E.H.R.R. 1 at ). In domestic law, amongst the EU27 these arguments find their expression in s. 20 EA. Much of the current jurisprudence is derived from CJEU authority made under Art. 4a(1) of the EAW Framework Decision which, itself, is rooted in Strasbourg Court jurisprudence on Art. 6 ECHR
This may not be the last word in the case, however. It is understood that the Romanian judicial authority has received a certified question from the Divisional Court and awaits a decision on permission to appeal from the Supreme Court.
Belgium – decisions to charge and try
Ever since the introduction of the absence of a prosecution decision bar to extradition in Part 1 cases in July 2014, the ground has been frequently litigated but with little success. Over the years, different constitutions of the Divisional Court have considered the position in relation to Germany, the Czech Republic, Italy and Lithuania. Whilst each decision is fact specific, in general terms, the English Courts have tended to read-down the bar relying on a ‘cosmopolitan approach’.
The latest decision, which relates to Belgium, is no exception. In Killoran v. Investigative Judge, Antwerp Court of First Instance, Belgium  EWHC 2290 (Admin), the Divisional Court (Dingemans LJ; Cheema-Grubb J) held that it was sufficient to prove that the category 1 territory had decided to try a requested person with offences where a public prosecutor signs a certificate stating that (s)he has decided to try a requested person. This is despite the fact that the domestic prosecutor, who is responsible for gathering evidence, does not, as a matter of fact, make the decision to try a requested person. Instead, the Chambre du Conseil (the Court in Chambers) hears committal proceedings and decides whether there is sufficient evidence to commit a case to a trial court.
In Killoran, the requested person argued that Divisional Court should consider the parliamentary materials in accordance with the principles in Pepper v. Hart  A.C. 593 to understand that a ‘decision to try’ should be equated with ‘trial ready’ and that previous authority developed under the bar had adopted the wrong approach. The Court rejected the argument [36-41]. Instead, it upheld that well-known ‘cosmopolitan approach’ which is rooted in the appreciation that many continental European criminal justice systems differ substantially from our own. Instead, the Courts should afford “a broad and generous interpretation so far as to the texts permit it in order to facilitate extradition” (see Re: Ismail  1 A.C. 320 per Lord Steyn). On that basis, the Court found that there were no real grounds to believe a decision to try the requested person had not been made and the appeal was dismissed .
Competency – is any Court in Poland an issuing judicial authority?
Almost exactly a year ago, we wrote about the challenges to judicial independence in Poland in the context of the EAW. In December, the Grand Chamber of the Luxembourg Court responded to the questions referred under Art. 267 TFEU in the conjoined cases of L (C-354/20 PPU) and P (C-412/20 PPU). In short, the CJEU held that no Member State could unilaterally disapply the EAW Framework Decision by declaring that no issuing judicial authority (i.e. a court empowered by domestic legislation to issue a EAW) in a particular Member State is ‘competent’ on account of concerns about the rule of law. Instead, the mechanism could only be suspended under Art. 7(1) TEU where a majority of four-fifths of the Council, with the consent of the European Parliament, determines that there is a clear-risk of a breach of the values enshrined in Art. 2 TEU (human dignity, freedom, democracy, equality, the rule of law and respect for human rights etc.) in a particular Member State.
In L and P, the Luxembourg Court upheld its guidance in LM (C-216/18 PPU). This prescribed a two-step process rooted in the mechanism first prescribed in relation to prison conditions in Aranyosi (C-404/15) and Căldăraru (C-659/15 PPU). The mechanism entails an objective assessment of any evidence adduced in relation to a requested person’s case; if, objectively, there are concerns about the lack of judicial independence, then the Executing Judicial Authority is duty bound to seek further information from the Issuing Judicial Authority (under Art. 15(2) of the EAW Framework Decision) before deciding, specifically and precisely, whether in the context of the requested person’s particular case, the nature of the offence, and the factual context of the case, the risk of an unfair trial is made out. If so, it must decline to execute the EAW. If not, it is obliged to execute it.
The Divisional Court’s (Dame Victoria Sharp PQBD; Julian Knowles J) long-awaited in judgment in Wozniak v. The Circuit Court of Gniezno, Poland; Chlabicz v. Regional Court in Bialystok, Poland  EWHC 2257 (Admin) was promulgated on Thursday evening. In substantial detail, the Court described the legislative changes and executive action which led to the rule of law challenges before the organs of the European Union and the Council of Europe and the jurisprudence of both the Strasbourg Court and the Luxembourg Court. The Court held “that there is a very considerable body of objective, reliable, specific and up-to-date material indicating that there is a real risk of breach of the values in Article 2 TEU, on account of systemic or generalised deficiencies relating to the independence of Poland’s judiciary resulting from the reforms since 2015” . Their Lordships observed that Lord Burnett CJ had reached the same conclusion in Lis, Lange and Chmielewski v. Poland  EWHC 2848 (Admin) at  and the situation had “only worsened since then” . They listed seven specific reasons why .
The threshold criteria being satisfied, Their Lordships undertook a specific and precise assessment of the evidence before the Court. Notably, they found that there was no automatic requirement to seek supplementary information under Art. 15(2) of the EAW Framework Decision since, in effect, there was nothing on which they required the Issuing Judicial Authorities’ input [192-201]. They concluded that there “is nothing in the material before us, nor any particular feature of the Appellants’ cases, which gives rise to a proper basis to refuse to execute their EAWs” . They referenced Lord Burnett CJ’s well-known comment in Lis (No. 1) that “[There is] no basis any lack of independence or bias might be likely to arise in respect of such run-of-the-mill criminal allegations” . The appeals were thus dismissed.
There are various points of note. The first, and perhaps the most interesting, is the debate (which was unresolved) about the status of L and P following IP Completion Day [181-183]. In simple terms, are all CJEU decisions regarding the EAW Framework Decision binding after IP Completion Day or could the Supreme Court depart from such a CJEU decision in relation to EAW cases commenced pre-IP Completion Day, in accordance with the principles applicable to the interpretation of retained EU law, to which transitional provisions apply? Given the comments made in the judgment, there is an indication that the point may be travelling upwards in short order.
Second, requested persons whose cases are before the magistrates’ court or stayed in the High Court will have to consider whether there is any evidence which could call on either court to make an Aranyosi enquiry under Art. 15(2) of the EAW Framework Decision. Given that the legal presumptions have not materially changed since Lis (No. 1) and L and P, this is unlikely to be so. Most cases are stayed pending permission to appeal with the requested person afforded a short duration (up to fourteen days) to make any further submissions in support of his/her case. It is unclear what will happened if the Divisional Court certifies a question of public importance.
Third, for those arrests under Part 1 of the Act which occurred after IP Completion Day and are thus underpinned by the EU/UK Trade and Cooperation Agreement 2020 (TaCA) (see our article at the end of last year), the Divisional Court’s guidance is persuasive but not strictly binding. Indeed, the Court used the language of the EAW Framework Decision throughout its decision.
On one hand, the TACA and the EAW Framework Decision mechanisms are similar, and the Divisional Court was careful not just to apply L and P but to consider the underlying evidence in its own right. After conducting its own thorough assessment, the Divisional Court agreed with the Luxembourg Court.
On the other, one of the CJEU’s central justifications is that there is a mechanism within the EU eco-system (Art. 7 TEU) to confront challenges to the rule of law and core Union values. The CJEU clearly stated that the mechanism should be used in lieu of unilaterally refusing surrender. For obvious reasons, the mechanism is not one in which the UK can participate.
Fourth, there are cases concerning the rule of law in Romania (Tiganescu – CO/741/2020) and Hungary (Ambrozi – currently in the magistrates’ court) which awaited the Divisional Court’s judgment. In each of these cases, the courts will have to consider whether there is sufficient evidence to meet stage 1 of Aranyosi (as per Wozniak) and, if so, whether any supplementary information is required in relation to the specific cases before them. Thus, there is likely to be continued delays to the resolution of Romanian and Hungarian cases.
Fifth and finally, as Alex noted recently, the Supreme Court of the Republic of Ireland has referred questions to the CJEU about assessing the risk of being tried by a tribunal not constituted by law. The case is now registered in the CJEU (C-480/21) and the referred questions can be seen here. It does not appear that the proceedings are under the urgent preliminary reference procedure and so a ruling is unlikely to be forthcoming in the short order.
“A Practical Guide to Extradition Law post-Brexit”
Finally, we are delighted to recommend “A Practical Guide to Extradition Law post-Brexit”, a practitioners’ guide which was published earlier this month. The extradition team at Temple Garden Chambers, led by Myles Grandison, has produced the first comprehensive guide to the Extradition Act 2003 following the end of the UK’s participation in the European arrest warrant.
Arranged in six chapters, which cover the Initial Hearing, the Extradition Hearing, Bars to Extradition, Human Rights, the Secretary of State’s role in extradition proceedings, and Appeals, the Guide satisfies the dual purpose of being informative and easy to navigate. It is useful to newcomers and established practitioners alike. The text is both easy to dip into for those who wish to get a feel for the practice area (for example with helpful checklists) as well as those who need an instant refresher or reference point.
Of particular use, the Guide reproduces the entire surrender provisions of the TaCA and the text of Part 1 of the 2003 Act (as recently amended). Although the timing of publication is driven by Brexit, the authors properly address extradition proceedings under Part 2 of the 2003 Act (non-EU countries), including the new provisional arrest powers in respect of INTERPOL Red Notices from trusted third countries.
You can find more information about the Guide here. We warmly congratulate Myles and our colleagues at Temple Garden Chambers on their success.
28th September 2021