NI High Court: Court rejects bid to have European Arrest Warrants invalidated for Czech Republic extradition

About this case:

• Citation:
  [2023] NIDIV 2
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Bernard McCloskey

Background

Pavel Torac, the appellant, renewed his challenge to the decision of Belfast County Court, who in December 2022 ordered his surrender to the Czech Republic. He is a national of the Czech Republic, and they were seeking his return pursuant to two European Arrest Warrants (EAWs).

The first EAW related to two criminal offences arising from an altercation in May 2016, where the appellant punched an identified person in the face. It stated that his extradition was sought in respect of two criminal offences, namely causing bodily harm and disorderly conduct.

The maximum sentences for these offences were eight years’ and three years’ imprisonment respectively, and the sentence imposed was 12 months’ imprisonment, none of which had been served.

The second EAW was dated from November 2020, and described an incident in which the appellant allegedly damaged another person’s vehicle. The two offences here were disorderly conduct and criminal damage, which carried maximum sentences of two years’ and six years’ imprisonment respectively. This time, the appellant was punished by a “community work” requirement of 180 hours. He did not abide by this, and a second court judgment sentenced him to 180 days’ imprisonment. Again, no part of this sentence had been served.

The Position in Northern Ireland

The appellant claimed that he came to Northern Ireland “in or around 2015” and had been residing there for an unspecified period with a female partner. They have a two-year-old daughter together. His mother, father, three younger siblings, aunt and uncle also reside in Northern Ireland, with settled immigration status, and the intention to remain in the jurisdiction.

The Northern Ireland court requested further information from Czech authorities, who noted: “The sentenced person may apply for conditional release from prison after he has served one half of his sentence period; in some cases, he may apply after he has served at least one third of his sentence period. The Czech Republic still insists on the surrender of the above-named individual for the purposes of the execution of the sentences imposed on him”.

At first instance

It was argued by the appellant that because the first EAW contained no specification of the alleged offence of disorderly conduct, it was therefore invalid. Further, he claimed that the second EAW was “of no effect” because he was not aware of the activation of the suspended sentence of 180 days’ imprisonment.

He further claimed that his surrender pursuant to the EAWs would be a disproportionate interference with his right to respect to private and family life (contrary to section 6 of the Human Rights Act/article 8 ECHR) given the ‘vintage’ of the offences, being from 2015 and 2016, his family circumstances, evidence of his rehabilitation, and uncertainty pertaining to his legal entitlement to re-join his family in Northern Ireland should he be extradited and serve his imprisonment sentence in the requesting state. It was also noted that in both warrants it was clear that extradition was being sought for a total of two offences, for which only one sentence was imposed. He argued that this should make extradition impossible, as the court must make an extradition decision per offence, not per EAW.

He argued that the court was being forced to extradite where the court might extradite on one offence, but not the other. Further, he argued it was also impossible for the court to carry out their task because they were told nothing about the circumstances of the disorderly conduct on either warrant.

The appeal

The appeal relied on two main grounds. He argued that both EAWs were defective and invalid. This was because the court must extradite only for extraditable offences, and based on the information provided, it was impossible to tell if the sentences imposed met this legal test.

The appellant also claimed that he was now “time served” in respect of the first EAW, so there could be no question of surrendering him to the requesting state. The first EAW related to a sentence of 12 months’ imprisonment, and the appellant had been in custody since it was executed in May 2022. This therefore represented a custodial period of 375 days.

The appellant also argued that it was not possible to discern whether the separate sentences in the EAWs were to be served concurrently or consecutively.

Consideration

The court found that the first ground of appeal could not be sustained. This was because it raised issues around sentence calculation, which could only be determined on the basis of the relevant laws of the Czech Republic.

Questions of sentencing practice, policy, and discretion would be involved in this, and these were issues that the court was neither equipped, nor required, to resolve.
The second ground of appeal focused on Article 2(1) of the Framework Decision, which notes, “A European Arrest Warrant may be issued […] where a sentence has been passed or a detention order has been made for sentences of at least four months.”

This is commonly described as the “seriousness threshold.” Here, it was argued that the second EAW was invalid because it described the total sentence imposed in respect of the two sentences as being 180 days’ imprisonment, and failed to indicate whether the minimum sentence of four months imprisonment was ordered in respect of either offence.
However, the court found that this ground of appeal involved “pure conjecture” and dismissed it accordingly. They noted the House of Lords decision in Pilecki v Poland [2008] UKHL 7.

There, two Polish EAWs related to sentences for less than four months imprisonment, while others were for longer periods. The requesting court aggregated all of the sentences resulting in, in each case, a total sentence exceeding the four-month threshold.

In Pilecki, the court was satisfied that, “the aggregated sentence was for four months or a greater period”, noting that, “It is the length of the sentence that the requested person is to be required to serve, and the length of that sentence alone, that determines whether or not it falls within the scope of a European Arrest Warrant”.

Conclusion

Ultimately, for the reasons given, the court affirmed the decision of Belfast County Court and refused the application for leave to appeal.