Virciglio v Judicial Authority of the Graz High Court, Austria

For the purposes of Extradition Act 2003, a sentence appeal conducted by review, rather than retrial, is not a conviction or trial within section 20 where the person was convicted in his presence at the first-instance hearing. An extradition court may rely on the requesting state’s assurances about the practical effect of an immigration ban. A person’s absence from an appeal may be deliberate where the evidence shows that he chose not to attend for reasons unrelated to the ban. The speciality rule concerns offences committed before extradition and does not regulate a possible breach occurring only after extradition.

The claimant appealed against an order of District Judge Workman extraditing him to Austria under the Extradition Act 2003. He had pleaded guilty and been sentenced in his presence by the Graz Criminal High Court. After he left Austria pursuant to a ten-year residence ban, an Austrian appellate court reviewed the sentence in his absence and increased it. The claimant argued that the sentence appeal was part of the conviction process, that his absence was not deliberate, and that extradition would expose him to breach of the residence ban, contrary to the Convention and the speciality rule.

1. Appeal dismissed. The order for extradition was upheld.
2. The first-instance proceedings, at which the claimant pleaded guilty, was the proceeding in which he was convicted for section 20(1) purposes. The later Austrian hearing was an appeal by way of review, not a retrial. It was therefore neither a conviction nor a trial within section 20 merely because it concerned sentence. The claimant’s argument under section 20(4) consequently failed (para [23]).
3. The alternative finding that the claimant had deliberately absented himself was also justified. The Austrian residence ban could be relaxed by permit for a public purpose. The Austrian authorities would have permitted, and had required, his return for the appeal. The evidence showed that his actual reason for not attending was the absence of travel documents, not fear of the residence ban (paras [26]-[28]).
4. The Article 5 argument failed. The court was entitled to rely on Austria’s categorical statement that the ban did not prevent return to serve the sentence, and there was no evidence that Austria would penalise him for returning in response to its request (para [30]).
5. The speciality argument was misconceived. Section 17 concerns an offence committed before extradition. Any breach of the residence ban could occur only after extradition, so the speciality provision was irrelevant (para [32]).

• High Court (Administrative Court): appeal from the order of District Judge Workman dated 24 August 2006 dismissed.
• Westminster Magistrates’ Court: ordered extradition to Austria under the Extradition Act 2003.