Loncar v County Court In Vukovar (Croatia)

In extradition proceedings under Part 1 of the Extradition Act 2003, the passage of time may make extradition oppressive even where the requested person faces a serious offence and a fair retrial is presumed possible. The court must assess the whole period of delay and ask whether the requested person caused it. Relevant factors include culpable delay by the requesting authority, a legitimate sense of security from prosecution or punishment, prejudice to the defence, the requested person’s family and private life, mental health, and the length and seriousness of the alleged offending. The statutory ground is not confined to cases where a fair trial is impossible. Abuse of process is a residual jurisdiction and should be considered only after the statutory bars in section 11 have failed.

The appellant had been acquitted in Croatia in 1995 of responsibility for his wife’s death. The acquittal was revoked in 2000, and he was convicted in his absence at a 2001 retrial. He had moved to England in 1999, where he was granted asylum and later became a British citizen.

A first extradition request was refused in 2006 because extradition would be unjust or oppressive by reason of the passage of time. Croatia made a further request under a European Arrest Warrant in 2014. The Westminster Magistrates’ Court ordered extradition and rejected arguments based on abuse of process, passage of time and Convention rights. The central issue on appeal was whether extradition was barred by section 14 of the Extradition Act 2003.

1. The appeal was allowed on the ground arising under section 14 of the Extradition Act 2003. It was oppressive to extradite the appellant by reason of the passage of time.

2. The court should address the statutory bars in the order specified by section 11. Abuse of process is a residual jurisdiction and should be considered only if the other bars to extradition have failed: Belbin v The Regional Court of Lille, France [2015] EWHC 149 (Admin), at [59].

3. The principles governing injustice and oppression included those stated in Kakis v Government of Cyprus [1978] 1 WLR 779, Gomes v The Government of Trinidad and Tobago [2009] 1 WLR 1038, Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin) and La Torre v The Republic of Italy [2007] EWHC 1370. Delay caused by the requested person generally cannot found injustice or oppression. Where the requested person did not cause the delay, the court must consider whether the passage of time makes a fair trial impossible and whether the return would nevertheless be oppressive.

4. Oppression is not established by ordinary hardship alone. Relevant considerations included the period exceeding 20 years, the appellant’s lack of responsibility for the delay, the requesting authority’s unexplained and culpable delay, his legitimate sense of security after acquittal and the failed 2006 extradition proceedings, possible loss of important medical evidence and weakened recollections, his established family and private life, his serious mental-health difficulties, and the dilemma between serving the sentence and seeking a retrial.

5. The court did not need to decide whether the fresh evidence was admissible or whether the requesting authority had acted in bad faith. It also left open whether a second extradition request, made long after an unappealed refusal of an earlier request and without material change of circumstances, would constitute an abuse of process.

1. Westminster Magistrates’ Court: District Judge Snow ordered extradition on 13 November 2014 and rejected the statutory and abuse-of-process challenges.
2. High Court (Administrative Court): the appeal was allowed on the section 14 passage-of-time ground.