Konecny v District Court in Brno-Venkov, Czech Republic

A European Arrest Warrant based on a conviction which is binding and enforceable under the issuing state’s law is a conviction warrant. The conviction need not be irrevocable. An unqualified right to a retrial does not by itself convert the case into an accusation case.

Characterisation depends on the conviction’s status and effects under the issuing state’s law. Statements by its judicial authority will ordinarily be accepted, although contrary evidence may be admitted.

For a conviction case, the passage-of-time bar under section 14 of the Extradition Act 2003 begins with the conviction. Earlier delay may nevertheless be considered fully under article 8, including any resulting prejudice at a retrial.

Konecny v District Court in Brno-Venkov, Czech Republic concerned a European Arrest Warrant founded on a Czech judgment convicting the appellant in his absence and sentencing him to eight years’ imprisonment. The judgment was legally effective and enforceable, but the appellant had an unqualified right to obtain its revocation and a full retrial after surrender.

A District Judge treated the warrant as a conviction warrant and ordered extradition. The High Court dismissed the appellant’s appeal in [2017] EWHC 2360 (Admin). It certified whether a person with a non-final conviction and an unequivocal right to a retrial was accused or unlawfully at large for the passage-of-time bar in section 14 of the Extradition Act 2003.

1. Appeal dismissed unanimously. Lord Lloyd-Jones delivered the judgment, with which Lord Kerr, Lord Hodge, Lady Black and Lord Kitchin agreed. The warrant and proceedings were correctly treated as a conviction case.

2. Part 1 of the Extradition Act 2003 must, so far as possible, be construed consistently with the Framework Decision. That instrument distinguishes warrants issued to conduct a prosecution from those issued to execute a custodial sentence. Its scheme expressly accommodates convictions in absentia followed by a right to retrial. It does not require every such case to be treated as a prosecution case.

3. Proceedings concerning IB did not establish that an enforceable conviction becomes an accusation case whenever a retrial may be requested. It permitted certain conditions applicable to prosecution warrants to be extended to a comparable conviction case. Tupikas confirmed that enforceability is decisive in determining when a warrant may be issued; irrevocable finality is not required.

4. Characterisation must reflect the status and effects of the decision under the issuing state’s law and procedure. Statements by the issuing judicial authority will ordinarily be accepted as accurate, subject to contrary evidence. A person is properly treated as convicted where the conviction is binding and enforceable, even though it may later be revoked following an application for a retrial. The issuing authority’s view is influential but not legally determinative.

5. The former domestic doctrine concerning contumacious convictions has no application to Part 1. Section 20 of the Extradition Act 2003 comprehensively governs convictions in absentia. A person whose retrial satisfies section 20(8) proceeds under section 21 as a convicted person and is not reclassified as accused. The reasoning in Sonea v Mehedinti District Court, Romania and Istanek v District Court of Prerov was preferred to any inconsistent approach in Bikar, Janiga or Ruzicka.

6. The Czech judgment was stated to be legally effective and enforceable until revoked. There was no contrary evidence. The appellant was therefore unlawfully at large after conviction and the relevant period under section 14 began with the conviction.

   Excluding pre-conviction delay from section 14 can disadvantage a person convicted in absentia and is a statutory deficiency requiring legislative attention. Until amendment, article 8 provides an effective means of considering the entire delay, changes in personal circumstances and possible prejudice at a retrial. Those matters had been fully considered here, and the extradition decision was not wrong.

1. United Kingdom Supreme Court: The court unanimously dismissed the appeal in [2019] UKSC 8 and affirmed the characterisation of the warrant as a conviction warrant.
2. High Court: In [2017] EWHC 2360 (Admin) , Sir Wyn Williams dismissed the appeal. He upheld the application of section 14(b) of the Extradition Act 2003 and found no error in the article 8 assessment.
3. Westminster Magistrates’ Court: District Judge Ashworth held that the conviction provisions applied, rejected the passage-of-time and article 8 objections, and ordered extradition.