Togyer v Czech Republic

This is an application for habeas corpus under section 11 of the Extradition Act 1989 by the applicant, Stefan Togyer, who was committed on bail by the Bow Street Magistrates' Court to await the Home Secretary's decision on whether to extradite him to the Czech Republic.

The applicant relies on two grounds. First, he submits that under section 6(2) of the Extradition Act 1989 it would be wrong to order his extradition. That section so far as relevant reads as follows:

“A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state ...., or committed or kept in custody for the purposes of return to a foreign state ...., if it appears to an appropriate authority --

(a)

that the conviction was obtained in his absence; and

(b)

that it would not be in the interests of justice to return him on the ground of that conviction.”

The applicant also relies on section 11(3)(a) of the Act which states:

“Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, ...., in respect of which the applicant's return is sought, that --

(a)

by reason of the trivial nature of the offence;

....

it would, having regard to all the circumstances, be unjust or oppressive to return him.”

There is no dispute that the applicant was convicted in his absence and sentenced to ten months' imprisonment. However, it is clear on the evidence before us that he was well aware of the proceedings, that he was also aware of the main hearing on 17 September 1999, and that he failed to attend. This appears from documents recently produced that show that he sent an apology for his non-attendance on that date. Quite apart from that particular matter the history of the earlier events shows quite clearly that he absented himself from the jurisdiction of the Czech Court at a time when he was well aware of the proceedings.

The District Judge at Bow Street Magistrates' Court commented that, although he had the opportunity to do so, the applicant has never at any stage sought to give evidence on oath to deny that he had committed the offence. It is very important that this court makes every allowance for any default on the part of the applicant to set out his case clearly because his knowledge of English is limited. But he was represented, and it is undoubtedly surprising that he has never put forward his case clearly that he denied the offence, although there is a record on which Mr Cavin, who appears on behalf of the applicant relies, which shows that when the applicant examined the file, which included a statement of the victim of the offence, he indicated that he disputed the facts contained in that statement.

Mr Cavin made it clear before us that he could not contend that the applicant did not have notice of the proceedings. Nor can it be disputed that, although the Czech Court proceeded in the applicant's absence when he did not attend, a lawyer was appointed on his behalf. But Mr Cavin suggests that that lawyer did not act for the applicant in the same way as a member of the English legal profession would be expected to act in similar circumstances. Having regard to that suggestion, it is right to point out that this court must take into account the nature of the proceedings in a country such as Czechoslovakia, where the proceedings are not adversarial in the same way as our proceedings are, but are inquisitorial, the judge playing a much more proactive role than would be expected of a trial judge in this country. A dossier or file is built up of a case in the course of the proceedings and so the collection of evidence by the court is a cumulative process rather than a process confined to the sort of trial we are used to in this country.

Very shortly the facts of the offence alleged can be stated as follows. A pawnbroker was persuaded by two men (one of whom was the applicant) to go to an address to dispose of some goods in the company of the victim. When they arrived in the victim's car at the address in question the applicant and the other man got out of the car with the goods. The victim went off to park his car. When he returned, the applicant and his co-accused had disappeared with the goods. By current standards in this country, the goods, which were electrical equipment, were of limited value, probably about £40. But, as is suggested by Mr Hines who appears on behalf of the Czech Government, it is not necessarily right to say that the value of the goods can be judged by the value in this country; their value may be greater than that in the Czech Republic. There may be substance in that submission. However, for the purposes of the present application I intend to proceed on the basis that the value of the goods which were the subject of the offence is limited to £40.

However, in considering the seriousness of the offence it is right to take into account the applicant's previous convictions. They indicate that he has been previously guilty of serious offences of dishonesty. Indeed in relation to one offence he was sentenced to a period of ten years' imprisonment. Mr Hines points out that at the time of this offence the applicant was on licence, having been released from prison prior to the expiry of the sentence. Therefore the offence which we are here considering must be viewed in that context. In this country an offence committed on parole or on licence or on probation is always regarded as more serious. It seems to me that there is no reason why the same approach should not be adopted in regard to an offence committed in another jurisdiction which is seeking the extradition of an individual.

In support of his application generally Mr Cavin makes three points. First, he suggests that the conduct of the trial was unsatisfactory. In regard to that he points to the fact that the lawyer appointed by the court to represent the applicant's interests waived the right to have the victim called before the court prior to the conviction, and he submits that that makes the trial in the absence of the applicant in any event unsatisfactory. It is right that in an English context it would be open to a lawyer representing an absent defendant to put the prosecution witnesses to proof and that not having done so by English standards the lawyer appointed for the applicant by the court could be criticised. However, while that might be so with regard to this country, the criticism which is made in that regard is much reduced when it is assessed in the context of inquisitorial proceedings, where clearly a statement which was of a detailed nature had been made by the victim and there was nothing to suggest that that statement was in any way unsatisfactory, apart from the comment on the file to which reference has been made earlier.

It is also important to note that the applicant has never condescended to give a detailed account of what he says in relation to the alleged offence. All that can be said is that it appears highly unlikely that anything would have been achieved by requiring the attendance of the victim in the Czech proceedings prior to the conviction. The process which had taken place was one where there was ample evidence before the Czech Court to justify conviction. The applicant, having chosen not to take part in those proceedings, can hardly complain about what occurred in his absence.

If there is any substance in the matters that are raised, apart from that, it must be with regard to the allegation of triviality. Mr Cavin draws attention to the fact that the Czech Court concerned was not a court of record. That meant that there was more difficulty in obtaining a transcript of what happened before the Czech Court. But now we have a reasonable amount of evidence as to what happened before the Czech Court. It does not seem to me that the fact that this was not a court of record should affect our decision on the application.

11. The point as to triviality, which is the remaining point, has to some extent already been put into context. I ask myself in that context: would it be right to regard this offence as trivial? Obviously it was not a serious offence; but is it right to regard it as trivial? If the applicant did not have the record that he has, I could well have been persuaded to regard the offence as trivial. But when the applicant's record is taken into account I would describe the offence as being far from being capable of being dismissed as trivial, particularly bearing in mind that he was at the relevant time on licence. Accordingly, I have come to the conclusion that neither of the grounds which is principally relied upon by Mr Cavin in support of his client's application is of substance. I would dismiss this application.

MR JUSTICE GOLDRING: I agree.

THE LORD CHIEF JUSTICE: Thank you very much, Mr Cavin. Mr Hines, no other order required?

MR HINES: No other order, my Lord.