Marek Nemeth v Czech Judicial Authority

In an extradition case engaging Article 8 ECHR, the appellate court must consider whether the lower court’s overall proportionality evaluation was wrong, rather than merely re-evaluating individual factors in isolation. Passage of time may weaken the public interest in extradition and strengthen private and family life considerations, but serious offences and the sentence remaining to be served may constitute strong countervailing factors. A judge may assess the reliability of unchallenged written evidence in the context of the evidence as a whole, including live evidence, cross-examination and contemporaneous medical records. Where objectively justified findings show that the claimed absence of family or other support has been overstated, the resulting Article 8 case may be incapable of succeeding.

The appellant was wanted for extradition to the Czech Republic under a conviction European Arrest Warrant, although it was accepted that he would be entitled to a retrial if extradited. District Judge Zani ordered extradition on 7 September 2020. The appellant renewed an application for permission to appeal after Thornton J refused permission on the papers on 23 April 2021.

The sole ground was Article 8 ECHR. The appellant relied principally on his wife’s serious disability, his role as her carer, the passage of time, his settled life in the United Kingdom and the absence of United Kingdom convictions. He challenged findings that the appellant and his wife had overstated the lack of available family and other support, and argued that the wife’s unchallenged written evidence should have been accepted.

1. Permission to appeal refused. The court held that there was no realistic prospect of concluding that the district judge’s Article 8 evaluation was wrong.
2. The passage of time was in principle relevant. It could weaken the public interest in extradition and strengthen private and family life considerations. The court proceeded on the basis that some periods might amount to unexplained or culpable delay, and that there had been no sufficiently clear adverse finding of fugitivity.
3. Those considerations were outweighed by the seriousness of the alleged offending, the use of threats of violence, and the three-year Czech sentence, which remained wholly outstanding. These were clear and strong public interest considerations in favour of extradition.
4. The district judge was not obliged to accept the wife’s assertion that she had no available support. Although she was not cross-examined, the appellant had given live evidence and had been cross-examined on the same matters. The surrounding circumstances did not establish that the wife’s evidence on those matters had been agreed or that the respondent had abandoned its challenge.
5. The district judge was entitled to consider contemporaneous medical records recording contact with the daughter shortly before the witness statements asserted that all contact had ceased. He was also entitled to take account of inconsistencies in the appellant’s evidence about extended family and the identity of the person who provided bail security.
6. Once the evidence about the absence of family and other support had been rejected for compelling objectively justified reasons, the Article 8 case based on the wife’s disability and need for care could not succeed. The factors against extradition were decisively outweighed by the factors supporting it.

• District Judge: District Judge Zani ordered extradition on 7 September 2020 after an oral hearing on 19 August 2020.
• High Court: Thornton J refused permission to appeal on the papers on 23 April 2021.
• High Court (Administrative Court): the renewed application for permission to appeal was refused.