Tous, R (on the application of) v District Court In Nymburk - Czech Republic

Under section 20 of the Extradition Act 2003, entitlement to a retrial means a legal right under the law of the requesting state. It is unnecessary to examine that state’s practical procedures where its law clearly incorporates Article 6 rights and gives those rights priority in the event of conflict.

The judicial authority bears the burden of satisfying the extradition court to the criminal standard. However, the requested person must first adduce evidence raising an issue as to whether the statutory guarantee will be met. A European arrest warrant may sufficiently establish the right to retrial where it expressly identifies the applicable legal guarantee, explains when it is triggered and confirms the relevant procedural protections.

The claimant appealed under section 26 of the Extradition Act 2003 against District Judge Evans’s order for his surrender to the Czech Republic under a European arrest warrant.

The claimant had been convicted and sentenced in his absence for offences arising from a serious road accident. The warrant referred to Article 306 of the Czech Criminal Code and stated that, following surrender, he would have legal guarantees enabling the proceedings to be reopened. The central issue was whether the warrant sufficiently established an entitlement to an Article 6-compliant retrial for the purposes of section 20(5) and (8) of the Act.

1. Appeal dismissed. The District Judge was entitled to conclude that the claimant would have a right to a retrial on return to the Czech Republic and that the requirements of section 20(5) and (8) of the Extradition Act 2003 were satisfied.
2. Section 20 requires the extradition court, where a person was convicted in absence and did not deliberately absent himself, to decide whether he would be entitled to a retrial or equivalent review. The entitlement must be a right conferred by the law of the requesting state, rather than merely a possibility that a court might exercise a discretion.
3. The judicial authority bears the burden under section 20(6), and must satisfy the court to the criminal standard. Nevertheless, the requested person must adduce at least some evidence raising an issue that the statutory guarantee may not be met. The judicial authority need not prove affirmatively, in the absence of such evidence, that the guarantee will fail.
4. The warrant was imperfectly drafted and its translation of Article 306 was unclear. Nevertheless, its assertion that the claimant had legal guarantees after surrender, together with the explanation that he would receive the judgment and be informed of his right to appeal, was sufficient. The eight-day period would run when the right to appeal arose after service on return.
5. Because the Czech Republic was party to the European Convention on Human Rights, the Czech court would be expected to apply Article 306 consistently with its treaty obligations. The 2009 amendment to the Framework Decision did not add guarantees beyond those already stated in the warrant. Although the Extradition Act 2003 must be read against that framework, the Act remained the directly determining instrument.

• High Court (Administrative Court): The appeal against the order for surrender was dismissed.
• City of Westminster Magistrates’ Court: District Judge Evans ordered surrender to the Czech Republic under the European arrest warrant.