Berisa v District Court In Maribor, Republic of Slovenia

In extradition proceedings engaging Article 8, proportionality requires a fact-sensitive balance between the individual’s private and family life and the requesting state’s treaty obligations, the rule of law and public order. Relevant considerations included the age of the alleged offending, the nature of the offences, delay in pursuing extradition, the appellant’s conduct since leaving the requesting state and the health of a close partner. The likely availability of a suspended sentence should not displace the assessment where the offence clearly crosses the custodial threshold under section 21A of the Extradition Act 2003. Factual decisions do not establish general legal principles. On the particular facts, the balance justified allowing the appeal.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Grant’s order for his extradition to Slovenia to face two surviving allegations concerning the supply or procurement of small quantities of heroin in 2002 and 2003. A third allegation was rejected as time-barred.

The appellant had lived in the United Kingdom since at least 2004. The alleged offences were more than 12 years old, and there had been a significant period between the Slovenian authorities learning that he was in the United Kingdom and issuing the European Arrest Warrant. His partner suffered from a serious brain condition requiring surgery. The central issues were whether the offences crossed the custodial threshold under section 21A and whether extradition would be disproportionate having regard to Article 8 and the partner’s condition.

1. Appeal allowed. The offences involved Class A drugs and were sufficiently serious to cross the custodial threshold under section 21A of the Extradition Act 2003. The court should not determine proportionality by speculating that a suspended sentence would probably be imposed. The likely sentence would depend on mitigation and the sentencing court in Slovenia.
2. The Article 8 assessment required a difficult balance. Relevant factors were the lapse of time since the alleged offences, the nature of the offending, the delay in issuing the European Arrest Warrant after the authorities knew that the appellant was in the United Kingdom, the appellant’s conduct since 2004 and the current medical position of his partner. The approach described by Saunders J in Kepta v Regional Court in Kielce, Poland [2013] EWHC 3321 (Admin), namely that hardship must be balanced against treaty obligations, the rule of law and public order, was consistent with the approach in the leading Supreme Court authority of HH.
3. Although the appellant had been found to be a fugitive, the delay was particularly significant given the age of the offences. The partner’s serious condition and the likely need for postoperative care materially strengthened the Article 8 case.
4. The court was just persuaded that extradition was disproportionate on the facts. The decision was expressly confined to the particular circumstances and was not intended to establish a general legal principle from a factual case.
5. The appellant was awarded £150 from central funds in respect of the costs before the magistrates’ court.

• District Judge District Judge Grant ordered extradition to Slovenia. One allegation was rejected as time-barred.
• High Court (Administrative Court) On an appeal under section 26 of the Extradition Act 2003, the court allowed the appeal.