Orechovsky v The Government of Slovakia

Under section 6(1)(d) of the Extradition Act 1989, the fugitive bears the burden of showing substantial grounds for thinking that return may lead to prejudice by reason of race. The required likelihood is less than the balance of probabilities. Evidence is not confined by the strict rules of evidence, but it must be relevant and its weight must be assessed carefully. General discrimination or racial tension in the requesting state is insufficient. The court must examine the likely treatment of the particular fugitive in the specific criminal proceedings. Relevant considerations include the nature of the charges, the conduct of the authorities, the applicant’s past treatment, the safeguards available at trial and the availability of legal representation.

The claimant, a Roma national of Slovakia, challenged his committal for extradition after a district judge excluded internet reports and other documentary material relied upon to establish possible racial prejudice under section 6(1)(d) of the Extradition Act 1989. The material concerned discrimination and ill-treatment of Roma in Slovakia. The district judge nevertheless considered the oral and written evidence and concluded that the claimant had not shown that state-sanctioned prejudice would affect him personally at trial or upon detention. The central issues were whether the documentary material was admissible and whether, taking it into account, the statutory threshold was met.

The Divisional Court unanimously dismissed the application for habeas corpus.

1. Admissibility. The court held that material relied upon under section 6(1)(d) is not subject to the strict rules of evidence applicable to ordinary issues. The internet reports should not have been excluded merely because they were not formally proved. Nevertheless, their authenticity, relevance and weight required careful assessment. General reports may carry less weight than sworn evidence and may be insufficiently particularised.
2. Threshold and individual assessment. The burden lay on the claimant, but he did not have to establish that prejudice was more likely than not. A reasonable chance, substantial grounds for thinking, or a serious possibility could suffice. The question remained what was likely to happen to this particular applicant if returned, rather than whether prejudice existed generally in the requesting state.
3. Application. The documentary material established serious racial tensions and anti-Roma prejudice in Slovakia, but did not reliably show that the authorities supported it or that it affected ordinary criminal trials. The charges had no racial or political dimension. The claimant had previously encountered the criminal justice system without alleging anti-Roma treatment, had been granted bail, and would receive a legally represented trial before a qualified judicial panel. Any sentence would be imposed under generally applicable principles and served under a prison administration committed to racial equality.
4. Those matters provided no substantial grounds for thinking that the claimant might be prejudiced at trial, punished, detained or restricted in his liberty by reason of race. The application was therefore dismissed.

First-instance decision. The judgment records the claimant’s challenge to decisions of District Judge Evans concerning committal and the exclusion of documentary material, but no earlier neutral citation is stated.