Bartos v District Court of Levice (Slovakia)

For extradition purposes, deliberate absence may be established where the requesting state takes steps that would acquaint a non-evasive accused with the time and place of trial. The court must assess those steps in their factual context, including any objectively established futility of serving documents at a previous address. The authorities need not take a futile step merely because it would otherwise provide evidence of deliberate absence. Deliberate evasion by moving abroad without leaving an address may also support the conclusion, even where it is not closely linked to the eventual trial date. A sufficient legal basis for finding deliberate absence makes questions concerning retrial rights unnecessary.

The appellant challenged an extradition order made by District Judge Goldspring on 3 February 2020 in relation to a conviction European arrest warrant issued by Slovakia. He had been convicted of child neglect and sentenced to two years and two months’ imprisonment. The District Judge rejected a ground under section 20 of the Extradition Act 2003 and found that the appellant had been deliberately absent from his trial on 17 May 2012.

Permission to appeal was refused on the papers by Saini J. The appellant renewed his application, arguing that deliberate absence required actual knowledge of the specific trial, or a direct and proximate link between his earlier evasion and that trial. The central issue was whether the District Judge had erred in law in treating deliberate absence as established.

1. The renewed application for permission to appeal was refused. The District Judge’s finding of deliberate absence was clearly correct in law on the facts.
2. The relevant test, articulated by Kerr J in Bialkowski [2019] EWHC 1253 (Admin), asks whether the requesting state took steps that would acquaint a non-evasive accused with the time and place of trial. Actual knowledge of the specific summons is not invariably required.
3. Posting the summons on the official board of the local court was capable of satisfying that test. The Slovakian authorities had established by due diligence that the appellant no longer lived at his former address and that postal service there would have been objectively futile. They were not required to take that futile step instead of using a domestic method which had a better prospect of coming to the attention of a non-evasive accused.
4. The appellant’s reliance on Stryjecki [2016] EWHC 3309 (Admin) was based on an incorrect reading of paragraph 50. That decision did not require a direct and proximate link between earlier evasion and the particular trial.
5. The reasoning in Kotsev [2018] EWHC 3087 (Admin) and the Divisional Court’s decision in Zagrean [2016] EWHC 2786 (Admin) supported the further view that deliberately moving abroad without leaving an address to evade justice may establish deliberate absence, even where the conduct predates the eventual trial by a substantial period. That point was unnecessary to the result because the posting of the summons was sufficient.
6. Since deliberate absence was established on a sufficient legal basis, the question of retrial rights did not arise.

• High Court (Administrative Court): The renewed application for permission to appeal against the extradition order was refused.
• District Judge Goldspring: On 3 February 2020, ordered extradition, rejected the appellant’s section 20 ground under the Extradition Act 2003, and found deliberate absence.
• Saini J: Refused permission to appeal on the papers.