Konecny v District Court in Brno-Venkov, Czech Republic

The Supreme Court dismissed the appellant's challenge to his extradition under a European Arrest Warrant. The court held that: the Framework Decision (2002/584/JHA) and its amendment (2009/299/JHA) distinguish between accusation warrants and conviction warrants and that distinction must be respected in national implementing law; under Part 1 of the Extradition Act 2003 a person may properly be characterised as a convicted person for the purposes of the EAW where the conviction is binding and enforceable under the law of the issuing state even if there is a right of retrial; and the domestic statutory route in section 20 and, where appropriate, section 21 of the 2003 Act, is the correct mechanism to protect a person convicted in absentia and entitled to a retrial.

The court rejected the appellant's submission that EU law (as interpreted in IB (Case C-306/09)) requires all persons convicted in absentia who have a right to retrial to be treated for all purposes as persons sought for prosecution rather than for execution of sentence. The court set out principles for characterising an EAW as a conviction or accusation warrant, emphasising that the statements in the warrant about the requesting state's law are ordinarily to be taken at face value.

Background and procedural posture:

• The appellant, a Czech national, had been convicted in his absence in the Czech Republic on 12 May 2008 and later sentenced to eight years’ imprisonment. A European Arrest Warrant dated 17 April 2013 was issued for his surrender. The EAW stated the conviction was enforceable and that, following surrender, the appellant would have an unqualified right to a retrial under Czech law (section 306a of the Czech Code of Criminal Procedure).
• The NCA certified the EAW and the appellant was arrested in the United Kingdom in March 2017. At the extradition hearing the appellant raised a bar under section 14 of the Extradition Act 2003 arguing that, because of the passage of time and changes in personal circumstances, extradition would be unjust or oppressive; he also relied on article 8 ECHR. District Judge Ashworth treated the matter as a conviction case, ordered extradition under section 21(3), and the High Court (Sir Wyn Williams) dismissed an appeal. The High Court certified a point of law and the Supreme Court granted permission to appeal.

Issues framed:

1. Whether a person convicted in absentia who retains an unequivocal right to retrial must, as a matter of EU law, be treated as a person sought for prosecution (an accused) rather than as a convicted person for the purposes of the Framework Decision and the Extradition Act 2003.
2. If not, whether domestic law (Part 1 of the Extradition Act 2003) requires such a person to be treated as accused rather than convicted for the statutory route and the passage-of-time assessment in section 14.
3. Whether the district judge was wrong to treat the appellant as a convicted person and whether that treatment caused unfairness in regard to the passage of time and other bars.

Court's reasoning and conclusions:

• The court analysed the Framework Decision and its amendment and concluded that the dichotomy between accusation and conviction warrants is a matter of EU law and generally should be respected. The CJEU authorities, including IB and Tupikas, do not support the broad proposition that every person convicted in absentia with a right to retrial must be treated for all purposes as an accused. IB allows extension of some protective conditions but does not reclassify the nature of the warrant for all purposes.
• Under domestic law the court emphasised the step-by-step statutory scheme in Part 1 of the Extradition Act 2003. Section 14 distinguishes the passage-of-time periods for accused and convicted persons; section 20 provides the route for convicted persons (including those convicted in absentia) and directs consideration of entitlement to a retrial, after which section 21 addresses Convention compatibility. The court concluded that a conviction may be treated as a conviction for Part 1 purposes even if the issuing state law provides for a retrial, provided the conviction is binding and enforceable under that law.
• The court set out practical principles for characterisation: (i) the dichotomy is from EU law; (ii) characterisation should be by reference to the law and procedure of the issuing member state; (iii) statements in the EAW are ordinarily taken at face value though contrary evidence may be admitted; (iv) a conviction may be characterised as such if binding and enforceable in the issuing state; and (v) finality in the sense of irrevocability is not required.
• Recognising a potential disadvantage that passage of time prior to conviction cannot be relied upon under section 14 in conviction cases, the court observed this is a shortcoming of the statute best addressed by Parliament but accepted that article 8 ECHR provides a safety net permitting consideration of wider delay in the proportionality balance. The court concluded that the district judge had correctly characterised and dealt with the case and that the appellant had not been prejudiced.

Appeal dismissed. The Supreme Court held that the EAW was correctly characterised as a conviction warrant because, under Czech law, the 2008 conviction was binding and enforceable until revoked and that Part 1 of the Extradition Act 2003 correctly directs courts to treat such persons as convicted for the statutory sequence in sections 10, 11, 20 and 21. EU law did not require treating every person convicted in absentia with a retrial right as an accused for all purposes, and the domestic statutory scheme provided appropriate protections, with article 8 ECHR available to address consequences of earlier delay.

The case arose from an order for extradition made by Westminster Magistrates' Court (District Judge Ashworth) on 24 April 2017. Permission to appeal to the High Court was granted (Collins J) and on 27 September 2017 Sir Wyn Williams (High Court, Administrative Court) dismissed the appeal. The High Court certified a point of law on 7 November 2017. Permission to appeal to the Supreme Court was granted on 23 March 2018; the Supreme Court delivered judgment on 27 February 2019. (Further citations in the judgment: [2017] EWHC 2360 (Admin) for the High Court decision.)