European Arrest Warrant

In its decision in Konecny v District Court in Brno-Venkov, Czech Republic, the UK Supreme Court has highlighted the manner in which the UK legislation implementing the European arrest warrant operates harshly against a person who is being extradited to serve a sentence imposed in another EU Member State following an earlier trial in that State in his absence. While Article 8 ECHR has the potential to alleviate some of the hardship, it does not cure the need for a legislative amendment

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Basic principles

The European arrest warrant (EAW) is an instrument for the surrender of a person from one EU Member to another for the purpose of being prosecuted for a criminal offence, or to serve a sentence already imposed, in the latter. It was introduced by a 2002 EU Framework Decision which was implemented in the UK by the Extradition Act 2003 (as amended). The EAW replaced the more cumbersome Council of Europe extradition arrangements between EU Member States with a streamlined surrender arrangement based exclusively on direct engagement between national judicial (as distinct from political) authorities. Where an EAW issued by a judicial authority in one Member State satisfies the statutory requirements, it must be executed (and the requested person surrendered) by a judicial authority in the other Member State within a specified time frame. While there are provisions in the EU Framework Decision requiring or permitting a refusal to execute an otherwise valid EAW in certain specified circumstances, these do not include an express provision to refuse execution on the grounds of fundamental rights. A core and distinctive feature of the EAW is that it must be executed on the basis of mutual recognition and trust. Essentially, this means that the executing judicial authority must normally proceed on the basis that the facts stated on the face of the EAW are accurate and that the fundamental rights of the requested person will be respected and protected in the criminal process of the issuing Member State.

Implementation issues

The EAW has proved remarkably successful from a prosecution perspective. Many more defendants are surrendered between Member States much more quickly than was ever the case under the Council of Europe’s 1957 Convention on Extradition. In the UK, for example, the number of persons surrendered to other EU States have increased from 19 in 2004 to an average of 1,250 per annum over the past few years, while the numbers surrendered to the UK have increased from 24 in 2004 to an average of 160 in the past few years.  It must also be said, however, that the attempt to impose a common, compulsory extradition framework on 28 Member States with criminal procedures which differ, sometimes radically, from each other, has provoked ongoing concerns about fair procedures and the protection of fundamental rights. These concerns are reflected in a steady stream of EAW cases coming before the higher courts in the UK (and in Ireland). They have also resulted in some significant amendments to the UK’s implementing legislation in 2013 and 2014, with the result that there is now some divergence between the text of the EU’s Framework Decision and the UK’s law on important aspects of the EAW.

UK restrictions

Unlike the EU’s Framework Decision, the UK’s implementing legislation now provides for an absolute bar on extradition pursuant to an EAW where the proceedings have been affected by delay which would be unjust or oppressive to the person concerned. In this context “unjust” refers primarily to the risk of prejudice to the accused in the conduct of the subsequent trial, while “oppressive” refers to the hardship to the accused resulting from changes in his circumstances which have occurred during the relevant period of delay. The UK legislation also includes an express bar on extradition where executing the EAW would be incompatible with the person’s rights under the European Convention on Human Rights (ECHR), as protected by the Human Rights Act 1998. Equally, there is a bar on the execution of an EAW aimed at securing the prosecution of the requested person where the extradition would be disproportionate in the circumstances. These are only some of the additional restrictions that the UK has imposed unilaterally on the execution of an EAW.

Facts of Konecny

A few weeks ago, in Konecny v District Court in Brno-Venkov, Czech Republic (2019), the Supreme Court handed down its latest decision on the interpretation and application of the EAW provisions. The appellant in Konecny had moved from the Czech Republic to the UK in 2007. In 2008 he was convicted and sentenced in this absence to eight years in prison in the Czech Republic for certain fraud offences dating from 2004. An EAW was issued for his surrender in 2013 and it was executed by a District Judge in the Westminster Magistrates’ Court in 2017. Significantly, the appellant had not been aware in advance of his trial in the Czech Republic. Accordingly, under Czech law he would have an absolute right to a full re-trial in the event of his surrender. As will be seen below, this raised the pertinent issue under UK law of whether the Czech EAW should be interpreted as a request for surrender to put him on trial or, as was stated on the face of the EAW, to serve his sentence (subject to him exercising his option of a re-trial).

The appellant challenged the surrender decision unsuccessfully in the High Court, and appealed from there to the Supreme Court. At the heart of his appeal was the familiar argument that the delay between the commission of the alleged offences and the execution of the EAW was such that it breached his rights under the UK’s EAW legislation and his right to a private and family life under Article 8 ECHR. In essence, he argued that he had established a settled family life in the UK for such a long period that it would be unjust, oppressive and grossly unfair to himself and his family to rip that asunder by surrendering him to the Czech Republic to serve a long prison sentence or to undergo lengthy criminal proceedings.

An ‘accusation’ or ‘conviction’ EAW

The key question that had to be decided by the Supreme Court was whether the appellant was an accused person, in the sense of being wanted for the purposes of prosecuting him for the fraud offences in the Czech Republic (an accusation warrant), or whether he was unlawfully at large, in the sense that he had already been convicted and was wanted to serve the sentence that had been imposed on him for those offences (a conviction warrant). The significance of the distinction relates to the fact that the UK implementing legislation does not treat the two warrants uniformly in the procedure leading to a decision on whether to extradite. So, for example, when assessing whether delay is such that it would be unjust or oppressive to extradite him, the UK court will measure the delay from the date of the alleged offence in the case of an accusation warrant, but from the date of conviction in the case of a conviction. In the appellant’s case, this would have the effect of reducing the period of delay to be considered from 13 years to 9 years.

Another material difference is that the execution of an accusation EAW must be refused if the extradition of the person concerned would be incompatible with his rights under the ECHR, or if it would be disproportionate relative to the seriousness of the penalty likely to be imposed on conviction. By comparison, the execution of a conviction EAW cannot be refused on the ground of disproportionality (although it must be refused if the extradition would be incompatible with the person’s rights under the ECHR).

Clearly, it would weigh heavily in the appellant’s favour if he was treated as being wanted to be prosecuted again for the offences (an accusation EAW), rather than to serve the sentence already imposed in the trial held in his absence (a conviction EAW). Superficially, of course, it might appear that the appellant is in the latter category as he has already been convicted and sentenced. The reality, however, is the Czech authorities did not make any attempt to notify him in advance of his trial, or to seek his extradition for prosecution before he came openly to the UK. Instead, they seemed content to charge and try him in his absence with a view to seeking his extradition post-conviction, at which point they would afford him the unqualified right to be tried again. In this arrangement, it is at least arguable that the appellant’s conviction was not final, and that the trial in his absence was essentially a procedural step that would lead to his trial in person. As such, the Czech EAW could be viewed substantively as an extradition request to try him in person (essentially an accusation EAW), even though in form it was expressed as an EAW for the extradition of a person who had already been convicted (a conviction EAW).

The Supreme Court concluded that the EAW in question was a conviction EAW. It could find no compelling support in EU law for the proposition that the surrender of a convicted person (a conviction EAW) would be classified as a surrender for the purposes of prosecution (an accusation EAW) simply because the requested person had an unfettered right to a re-trial in the requesting State. If the conviction was final, in the sense of being enforceable, the EAW remained a conviction EAW. The mere fact that the conviction was not necessarily irrevocable did not convert the EAW into an accusation EAW. Insofar as there was domestic UK extradition precedents offering support to the contrary, the Supreme Court considered that these had no application to the EAW regime which was a comprehensive self-contained system.

The Court also considered that it would be inconsistent with the EAW regime and the implementing UK legislation to treat the appellant as an accused person simply because he had a right to a re-trial in respect of the conviction if extradited. In reaching that conclusion, the Court was heavily influenced by the fact that the EAW system was founded on a high level of mutual trust and confidence between the Member States. It acknowledged that the executing judicial authority will normally accept at face value the description of the requested person’s status in the national law of the requesting State, as expressed by the issuing judicial authority in the EAW. While that description is not always conclusive, the executing judicial authority will normally follow it in the absence of evidence to the contrary. In this case the EAW clearly stated that the appellant had been convicted and that the conviction was final and enforceable. No evidence was presented to contest that interpretation of the contents of the EAW under Czech law.

Calculating period of delay

As noted above, the distinction between a conviction EAW and an accusation EAW could have serious adverse implications for a requested person who had been convicted in his absence in circumstances where he had an unfettered right to a re-trial in the requesting State. The immediate effect is that the impact of delay in seeking his extradition would be assessed solely on the basis of the period between the date of his first conviction in the requesting State and the date of the UK extradition. This could be a much shorter period than that between the alleged commission of the offence concerned and the date of the UK extradition, especially if there had been considerable delay in the investigation of the offence concerned. In other words, the requested person could be exposed to severe prejudice in his re-trial as a result of substantial delay by the requesting State in the initial investigation and prosecution, yet that delay (and associated prejudice) could not be taken into account by the UK court in deciding whether his extradition was barred on the basis of delay.

The Supreme Court acknowledged the substantive unfairness of this situation. It attributed that unfairness to a deficiency in the drafting of the UK implementing legislation which, it intimated, required consideration by the legislature at the earliest opportunity. The Court also noted that the High Court, and a Divisional Court, in other cases had resorted to various devices to circumvent the unfairness, but none were entirely satisfactory. Significantly, the Supreme Court considered that the Article 8 ECHR right to private and family life could provide a vehicle for assessing the effects of the full delay in cases such as the appellant’s; at least until the legislation was amended.

Application of Article 8 ECHR

The application of Article 8 would entail a balancing exercise between the public’s interest in having the alleged offences prosecuted, and the accused’s interest in not being extradited to face delayed proceedings in another State after having established a life for himself and his family over many years in his current State. Not only would this allow the full period of delay from the alleged commission of the offence to be taken into account, but it would also allow the Court to apply a proportionality test that the UK legislation otherwise confines to accusation warrants. Moreover, the Supreme intimated that where delay would present a risk of injustice for the accused at the re-trial, this could be included, and would be highly relevant, in the balancing test under Article 8.

On the facts of the case, the Supreme Court noted that the District Judge had taken the full period of delay into account when conducting the balancing test under Article 8. He took note of the fact that there had been a long period of delay since the commission of the offences, that the appellant had built a new life for himself and his family in the UK since that time, and that he had not been aware of the proceedings or conviction against him in the Czech Republic. However, the District Judge concluded that these were not sufficient to outweigh the public interest in prosecution as the alleged offences were serious and related to similar offences previously committed by the appellant. The High Court, on appeal, could see no basis for overturning the District Judge’s decision, although the High Court judge did express some unease over the length of the delay. The Supreme Court shared that unease, but agreed that there was no clear basis for over-turning the District Judge’s decision.  Accordingly, the appeal was dismissed.

The decision in Konecny clarifies the distinction in UK law between an EAW for the extradition of a person for the purpose of prosecuting him in another Member State, and an EAW rendering him amenable to serve a sentence imposed on him following an earlier trial in his absence in that other State. More broadly, it seems to breathe more life into the Article 8 right to private and family life as a potential basis for resisting the execution of an EAW by a judicial authority in the UK.

Download the April 2019 edition of Criminal Justice Notes