Van Der Kramer v Capelle (Federal Magistrate In the Federal Prosecution Office Belgium)

For section 20 of the Extradition Act 2003, a criminal process remains a trial until there is a final determination. A person may therefore be convicted in his presence where he attends a later appeal forming part of that process, even if earlier stages occurred in his absence. Procedural shortcomings during the attended appeal do not alter that conclusion, although they may engage Convention rights separately.

Once conviction is final, an extradition challenge based on Article 6 must address the nature of the proposed proceedings. Where extradition is sought only to enforce imprisonment, any Convention complaint concerns Article 5. Removal is prohibited only where there is a real risk of a flagrant breach, including imprisonment following a flagrantly unfair trial.

A European arrest warrant sought the claimant’s extradition to Belgium to serve a three-year sentence for drug trafficking and participation in a criminal organisation. He had been convicted in absentia at first instance and sentenced on appeal in his absence. After being notified, he participated personally and through a lawyer in a rehearing of the appeal. The Belgian Court of Appeal upheld the earlier rulings, and the conviction became final.

The District Judge ordered extradition, holding that the claimant had been convicted in his presence because he attended the final appeal process. The claimant appealed, arguing that he had never had an effective opportunity to challenge prosecution evidence and that extradition would breach Articles 6 and 5 of the Convention. The central issue was whether the final criminal process constituted a conviction in his presence for the purposes of section 20 of the Extradition Act 2003.

1. Appeal dismissed. The judgment of District Judge Purdy ordering extradition was upheld.
2. Section 20 of the Extradition Act 2003 requires the court to identify the process which resulted in the person’s final conviction. A trial is the legal process resulting in a final determination. It may include appellate proceedings where the conviction does not become final until the appeal process has ended. The approach in Caldarelli v Court of Naples, Italy [2008] UKHL 51 and Atkinson and Binnington v Supreme Court of the Republic of Cyprus [2009] EWHC 1579 (Admin) was applicable.
3. The claimant had not deliberately absented himself from the earlier proceedings, but he attended and was represented at the appeal rehearing which produced the final conviction. That process therefore resulted in a conviction in his presence for section 20 purposes. The fact that requested witnesses were not called, and that the process may have failed fully to give effect to Article 6 of the Convention and Article 47 of the Charter, did not change the statutory conclusion.
4. The Article 6 argument against extradition was misconceived because the claimant faced imprisonment pursuant to completed proceedings, not further legal proceedings in Belgium. Any Convention complaint arising from enforcement of the sentence fell under Article 5.
5. Under Othman v the United Kingdom [2012] 55 EHRR 1, removal may breach Article 5 where there is a real risk of a flagrant breach, but the threshold is high. The claimant did not contend, and the evidence did not establish, that his trial was flagrantly unfair. The shortcomings identified did not reach that threshold.

• High Court (Administrative Court): The appeal against the extradition order was dismissed and the District Judge’s decision was upheld.
• District Judge Purdy: Extradition to Belgium was ordered on 29 January 2013.