Kodos (aka Jetmir Olltari) v Prosecutor General's Office of the Republic of Lithuania

For the purpose of section 64(3) of the Extradition Act 2003, the conduct alleged in a warrant must be considered as described, including conduct forming part of an alleged joint enterprise. It is sufficient that part of that conduct occurred in the requesting territory. The court then assumes that the conduct occurred in England and asks whether it would constitute an offence under English law. The punishment condition concerns the level of punishment available under the requesting territory’s law, not its territorial jurisdiction. Article 7 ECHR is not breached merely because a later statutory version carries a higher maximum sentence. The relevant question is whether the sentence actually imposed may exceed the penalty applicable when the offence was committed.

The appellant challenged an extradition order made by District Judge Riddle at Westminster Magistrates’ Court on 19 October 2009. The order followed a European Arrest Warrant issued by the Lithuanian Prosecutor General’s Office for prosecution for alleged people trafficking, earning from another person’s prostitution, and engaging another person in prostitution.

The appeal raised two fresh issues: whether the alleged offences were extradition offences under section 64 of the Extradition Act 2003, and whether reliance on later versions of Lithuanian criminal provisions was incompatible with article 7 ECHR.

1. Appeal dismissed. The extradition order was not interfered with.
2. The burden lay on the requesting authority to satisfy the judge that an offence was an extradition offence. The court doubted whether the standard of proof had any material role where the issue was one of law.
3. The warrant alleged that the appellant participated in organised joint enterprises involving conduct in both Lithuania and England. The conduct relied on was not confined to acts personally performed by him in England. The acts carried out in Lithuania to recruit and transfer the women formed an integral part of the alleged conduct.
4. Section 64(3)(a) was satisfied because part of the conduct occurred in Lithuania. There was no need to decide whether the transfer of money itself occurred partly in Lithuania.
5. Section 64(3)(b) required the court to assume that the conduct described in the warrant occurred in England and ask whether it would constitute an offence under English law. On that assumption, the conduct would constitute one or more offences under sections 59, 52 and 53 of the Sexual Offences Act 2003.
6. Section 64(3)(c) concerned only the level of punishment available under Lithuanian law. The warrant sufficiently showed that the offences carried imprisonment of at least 12 months. That condition did not require investigation of Lithuanian law’s territorial scope.
7. Article 7 ECHR was not breached merely because the later version of article 147 of the Lithuanian Criminal Code provided for a higher maximum sentence. The relevant protection concerned the actual sentence imposed. Nothing before the court suggested that Lithuania would impose a sentence exceeding the maximum applicable when the offences were committed.

• High Court (Administrative Court): appeal against the extradition order dismissed. The court upheld the order made by District Judge Riddle at Westminster Magistrates’ Court on 19 October 2009.