Andelko Mikelic v The County Court in Zagreb, Croatia

In extradition proceedings, a person is a fugitive where, knowing that a sentence remains to be served, he knowingly relocates beyond the reach of the requesting state’s legal process. The absence of a formal restriction on departure does not prevent that conclusion.

For Article 3, the presumption that a Convention state will comply with its obligations may be rebutted by clear, cogent and compelling evidence concerning a particular prison or detention facility. Evidence of persistent overcrowding, insufficient personal space and poor conditions may establish a real risk of treatment contrary to Article 3. The court should then seek specific assurances or further information before finally deciding whether extradition can proceed.

The appellant challenged an order for his extradition to Croatia to serve the balance of a sentence for tax fraud. He had previously been extradited to Croatia, where he was present at trial, conviction and sentence. After an unsuccessful application to postpone serving the sentence, he returned to the United Kingdom and did not report to serve it.

The extradition judge found him to be a fugitive and ordered extradition after conducting the Article 8 balance. On appeal, permission was granted on Article 3 and Article 8 grounds. The appellant relied on later evidence concerning conditions at the Diagnostic Centre in Zagreb Prison, including an ECtHR judgment and a CPT report. The central issues were whether the fresh evidence should be admitted, whether it rebutted the Article 3 presumption, and whether the Article 8 assessment was flawed.

1. Article 8. The judge applied the correct fugitivity question: whether, on the specific facts, the appellant knowingly acted to place himself beyond the reach of the Croatian legal process. The appellant had been present when convicted and sentenced, knew that a further period of imprisonment remained, unsuccessfully sought postponement, and then returned to the United Kingdom. The absence of a restriction on leaving was not equivalent to permission to leave. His case was materially different from Pillar-Neumann and De Zorzi, and closer to Ristin. The finding that he was a fugitive was therefore open to the judge.
2. The appellant’s private life, medical conditions, electronic curfew and time spent in the United Kingdom were properly taken into account. They carried limited weight when balanced against the strong public interest in extradition for serious offending and in preventing the United Kingdom becoming a safe haven. The Article 8 ground failed.
3. Article 3. Croatia’s status as a Convention state attracted a presumption of compliance. That presumption was rebutted by clear, cogent and compelling evidence focused on the particular detention facility where the appellant was intended to be held. The arrest warrant and summons strongly indicated that he would initially be housed at the Diagnostic Centre in Zagreb Prison.
4. The evidence showed persistent and substantial overcrowding, personal space below the relevant standard, poor repair and hygiene, and no demonstrated material improvement. The Croatian response was aspirational, lacked clear timescales and gave no adequate assurance that the identified conditions had been remedied. There were substantial grounds for believing that detention at the facility would create a real risk of treatment contrary to Article 3.
5. The later ECtHR judgment and CPT report were admitted because they were unavailable at the original hearing and were decisive to the Article 3 issue. The appeal was stayed for 42 days to allow the respondent to provide assurances or supplementary information capable of discounting the risk. The matter was to be restored thereafter, with permission to apply concerning the wording of any assurance and final disposal.

• Westminster Magistrates’ Court. DJ(MC) Clews ordered extradition on 11 January 2023, rejecting the Article 8 challenge and finding that the appellant was a fugitive.
• High Court (Administrative Court). Permission was granted on Article 3 and Article 8 grounds. The Article 8 challenge was dismissed. Fresh evidence was admitted on Article 3, the appeal was stayed for 42 days, and the matter was to be restored for consideration of any assurances and final disposal.