Ginova c Czech Republic

1. LORD JUSTICE DYSON: This is an application for habeas corpus. It is made by Julie Ginova, who is a national of the Czech Republic. She is currently held in custody in this country to await the decision of the Secretary of State as to whether she should be returned to the Czech Republic. Her extradition was sought on the grounds that she was convicted of robbery on 6th April 1994 and sentenced to two years' imprisonment. It is common ground that (a) she is the person in respect of whom extradition is requested and (b) that the crime of which she has been convicted is an extradition crime. The single issue is whether there was evidence before the district judge which entitled him to be satisfied that she appeared to be unlawfully at large: see section 9(8)(b) of the Extradition Act 1989. By a decision dated 29th October 2002 the district judge held that he was sure that she was unlawfully at large.

2. The applicant was born in 1968 in the Czech Republic. The two years sentence for robbery took effect from 24th May 1994 when her appeal against sentence was dismissed. Article 68 of the Criminal Code provides that the "punishability" of this offence expires five years after the sentence becomes effective. According to the statement of the Presiding Judge IT of the District Court of Plzen-sever, "the judgment in the case of convicted Julie Ginova came into force on 24th May 1994 i.e. the period of limitation would have finished on 24th May 1999 provided it had run continuously." It may be that something has been lost in the translation, but I find the meaning of part of the Presiding Judge's statement somewhat obscure.

3. According to the arrest warrant issued by the Presiding Judge on 3rd November 2000, the relevant history of events subsequent to the conviction is as follows. Following her conviction the applicant did not report for prison service. Instead, on 11th July 1994 she petitioned the court for suspension of the sentence on the grounds that she was pregnant. On 20th July 1994 the court suspended the sentence until 21st January 1996. The order included the following words:

"Pursuant to Art 322 para 2 of Penal Law the service of 2 years prison sentence imposed by the judgment of the District Court at Plzen-sever of 6 April 1994 and by the decision of the Regional Court at Plzen of 24th May 1994, file No. 7 to 158/94 is suspended until 21 January 1996.

Grounds of the decision:

By a aforementioned judgments of the District Court at Plzen-sever and the District Court in Plzen accused Ginova was found guilty of robbery pursuant to Art 234 para 1 of Penal Law and imposed 2 years prison sentence without suspension. The judgment became effective on 24 May 1994.

On 11 July 1994 convicted Ginova appeared in this court and petitioned for suspension of her prison sentence on grounds of her pregnancy. She submitted a certificate of pregnancy issued by MUDr Jaroslav Novak, a gynaecologist, Rokycany hospital, on 7th July 1994 in which he set the date of delivery on 21 January 1995.

Pursuant to Art 322, para 2 of Penal Law the presiding judge suspend the prison sentence of the pregnant and mother of new-born baby for 1 year after the delivery of a child.

In accordance with the aforementioned provision of Penal Law the presiding judge has suspended the sentence of imprisonment of convicted Ginova until 21 January 1996, the date of expiry of 1 year's period after expected date of delivery. The court will inquire of the aforenamed doctor whether convicted Ginova really gives birth to her baby on that date. In case the circumstances under which the suspension of sentence was granted are changed, it will be reversed and the convicted must serve the sentence."

4. On 3rd January 1996, she sought a further suspension until 30th June 1996, on the grounds that her child was suffering from an illness. It seems that this suspension was granted. The order has not been placed before this court. She did not surrender to custody on 30th June 1996 or at any time thereafter. Eventually, on a date which she says was 5th July 1997 and the respondent says was 15th October 1997, she petitioned the court for a further suspension, this time on the grounds of another pregnancy. On 16th October the court suspended the sentence until 17th May 1999. The terms of this order are mutatis mutandis substantially the same as those of the order of 20th July 1994. In particular, the ground of the decision concluded with these words:

"In case the circumstances under which the suspension is granted change, it will be annulled and the convicted has to go to prison."

5. She did not surrender to custody on 17th May or at any time thereafter. Instead, on 27th May 1999 she made a further application for suspension of the sentence on the grounds of a yet further pregnancy. According to the arrest warrant, "this petition then could not be decided as immediately after this the convicted immigrated into the United Kingdom." It is unclear what decision the court made on this occasion. There seems no doubt however that the applicant did appear at court on 27th May and that no substantive decision was made on her petition. It may be that the application was simply adjourned. At all events, she arrived at court at liberty and was allowed to leave the court on 27th May and was not arrested on that or any subsequent occasion.

6. The account that I have just given differs in a number of respects of detail from that given by the President of the court in his statement, but I do not consider the differences are material to the issue that arises on this application. I should also mention that there has been placed before the court a document, apparently signed by the Presiding Judge of the district court in the Czech Republic, dated 2nd October 2001, which purports to say that on an unspecified date in 1999:

"... an intrastate arrest warrant was issued against the convicted and nationwide search for her whereabouts was launched."

7. The only issue before the district judge (as before us) was, as I have said, whether he could be sure that the applicant appeared to be unlawfully at large; that is to say that she was liable to arrest without further order or judicial process. The district judge gave an unreserved judgment. Having summarised the facts, he said:

"Mr Hynes correctly says that there is no evidence of foreign law that relates specifically to this application for suspension. That there is no audit trail of any decisions that might be made in relation to this application, and no paperwork related to this application, and no expert evidence of the foreign law that assists in identifying the criteria to be employed in granting suspensions.

In my judgment none of that is necessary. This court needs to be satisfied so that it is sure, that she is unlawfully at large, and there is adequate material within the papers to establish that fact. The case of Urru unreported 25th May 2000 CO/4009/1999 QBD has been cited. For the reasons I gave during argument it is easily distinguished; essentially 1) Miss Ginova should have reported to the prison, 2) she knew that, 3) she successfully obtained a number of suspensions, 4) each time the court made it clear that at the end of the period she had to report back to the prison unless she successfully obtained another suspension, 5) she never did. She is unlawfully at large."

8. The decision in Urru is an unreported decision of this court (Lord Bingham CJ and Morison J). The sole issue there (like here) was whether the requesting state had proved that the applicant was unlawfully at large. For my part, I do not derive great assistance from that case. On the evidence in Urru there was nothing to suggest that the applicant was under a duty to surrender to custody on being convicted and sentenced. The court held that there was no admissible evidence to prove that it was unlawful for the applicant to be at large. In particular, there was no evidence bearing on the question when under the law of Italy a convicted defendant not previously in custody becomes unlawfully at large (paragraph 22). Moreover, the court was not willing to infer that the applicant was unlawfully at large, not least because there was a letter from the Public Prosecutor which stated that the applicant had never been unlawfully at large as his case was tried when he was free (paragraph 23). Lord Bingham summarised the position at paragraph 28 in these terms:

"There is no material before us to explain when the applicant became unlawfully at large in the eyes of Italian law -- if he ever did -- and we have an apparently clear statement by the prosecutor in June 1999 that the applicant had never been unlawfully at large. In my view the applicant is correct in submitting that the evidence before the magistrate did not entitle the magistrate to be satisfied that the applicant appeared to be unlawfully at large and the magistrate erred in concluding otherwise."

9. So what is the position in the present case? Mr Hynes submits that there is no evidence as to the consequence in Czech law of non-compliance with the terms (if any) of the deferment of a sentence, or as to the effect in law of a petition for a further suspension of sentence. The only material which purports to explain the position is that contained in the statement of the President. I have already touched on this statement. It deals primarily with the relevant limitation periods and their calculation. But in the last two paragraphs there are passages which are relied upon by Ms Dhir, who appears on behalf of the Government of the Czech Republic. The President says:

"From the aforementioned provisions of penal law, especially the provision of Article 68 para 2 of penal law, it is obvious that the period of limitation was suspended on the day the convicted left the CR territory and it has not run since and is not running currently. The convicted is staying abroad unlawfully because she is to start serving her prison sentence but this sentence cannot be enforced and as this court does not know the new beginning of time of limitation it is not possible to let the British side know the exact date when the time of limitation will expire and it will no longer be possible to enforce the punishment.

As for item 26 of the legal analysis drawn up by the British Home Office, the presiding judge declares that convicted Julie Ginova is obligated to serve 2 years' prison sentence imposed on her by legitimate decision of this court, the start of which was postponed till May 17, 1999. Since that date the convicted Julie Ginova has been escaping the punishment. In terms of law convicted Julie Ginova is staying out of the CR territory illegally."

10. As regards the statement of the Presiding Judge, Mr Hynes submits in his skeleton argument at paragraph 14:

"The only material which touches on this point [that is to say the point at issue in the present case] seems to be the Presiding Judge's statement P54-55 but this, it is submitted, deals principally and somewhat arcanely with the question of limitation. It seems to be an attempt to explain why a prima facie lapse of more than five years is not fatal to the enforceability of the original sentence but, what is not clear is in what actually rather than potentially triggers that enforcement or, in what circumstances a person whose sentence is suspended becomes liable to arrest and is therefore unlawfully at large."

Mr Hynes submits that there is a real lacuna in the statement of the Presiding Judge as to the effect in law of the decision of 27th May 1999 which, doing one's best, is likely to have been a decision to adjourn the application for a further suspension.

11. Mr Hynes submits that there is a further lacuna in the respondent's evidence; that relates to the intrastate arrest warrant to which I have already referred. As he points out, the arrest warrant itself has not been produced (that in itself is somewhat surprising). But he further submits that even if it was in fact issued, unless it can be seen on its face what its effect is, it is impossible to be sure that the effect of it was that the applicant was liable to be arrested and detained in custody without any further intervening judicial process. Mr Hynes also draws attention to the fact that at least one application for a suspension of the sentence was made by the applicant after the previous suspension had expired, and yet it seems that no steps were taken to arrest the applicant and seek to enforce the sentence during that intervening period. In short, he submits that the requesting state has failed to provide evidence of the applicable provisions of the law of the Czech Republic and/or to adduce admissible evidence of any order requiring her to surrender to custody. In the result, the requesting state has failed to establish that the applicant has been and remains unlawfully at large.

12. On behalf of the requesting state, Ms Dhir submits that the district judge reached the right conclusion for the right reasons. Moreover, she relies on the concluding words, which I have already quoted, from the suspension orders made on 20th July 1994 and 16th October 1997. She submits that these indicate that upon the termination of this period of suspension, for whatever reason, including expiry by effluxion of time, the applicant was required without further ado to go to prison. She also relies on the contents of the last two paragraphs of the Presiding Judge's statement to which I have earlier referred.

13. There is no doubt that the court has to be satisfied to the criminal standard of proof that the applicant is unlawfully at large. I agree that the evidence contained in the statement of the Presiding Judge is somewhat difficult to interpret. In my view, it would be inherently surprising if, once the period of suspension came to an end, the sentence of imprisonment was not activated without more, and that the applicant became liable to arrest only if a court order authorising such arrest were made. One would have thought that a suspension is just that. Once it comes to an end it ceases to have effect and the previous position is restored. The previous position in this case was that the applicant had been sentenced to an immediate term of two years' imprisonment and if she failed to surrender to custody she was liable to arrest and detention without further order.

14. I do not however agree with the district judge's third reason that "each time the court made it clear that at the end of the period she had to report back to prison unless she successfully obtained another suspension." I can find nothing in the two orders that are before the court which supports this conclusion. The language of the two sentences in question was directed to the consequences that would flow not if the suspension of the sentence came to an end by effluxion of time, but if the circumstances, on the basis of which the suspension of sentence was granted, changed. The orders made it clear that if the circumstances on which the suspension was based were to change, then the suspension would be reversed or annulled and the applicant would have to serve her sentence. Thus, for example, if she suffered a miscarriage during the period of suspension, the sentence would be activated without more, and the applicant would have to serve her sentence. But it seems to me that these terms are no more than consistent with the proposition that once the term of suspension came to an end by the effluxion of time, the applicant would be required to go to prison without further order. The fact that the order expressly states that if the basis for the suspension is removed before the period of suspension expires the convicted person must go to prison, does not necessarily indicate that she must also go to prison without further order if the period of suspension runs its full course.

15. Is the fact that one would have thought that it is implicit in the concept of a suspension that, once the latest suspension ceased to have effect, the status quo was restored, sufficient to make one sure that the applicant therefore became liable to arrest and detention on or shortly after 27th May 1999?

16. On the material before the court, and not without considerable hesitation, I do not feel able to rule out the possibility that it might be a provision of the laws of the Czech Republic that, following the expiry of the period of suspension, the authorities are required to take some procedural step before the applicant is liable to arrest and detention as a person unlawfully at large. One striking feature of this case is the fact that the applicant applied for a suspension of her sentence on two occasions after the previous suspension had expired. There was an interval of 12 or 15 months between the expiry of the suspension on 30th June 1996 and the petition made in July or October 1997; and an interval of ten days between the expiry of the suspension on 17th May 1999 and the most recent petition on 27th May of that year. And yet there is no indication that any steps were taken by the authorities during this period to arrest her. If she had been arrestable, one would have expected steps to be taken to arrest her during one or both of these two periods. There is then the mysterious position resulting from what happened on 27th May. It is plain that the court did not make a further order suspending the sentence on 27th May. The best interpretation of what happened on that occasion is that the court probably simply adjourned the application; yet the applicant was allowed, it seems, to leave the court a free person and was not detained in custody. All of that, notwithstanding the fact that the previous period of suspension had expired some ten days earlier. It seems to me that if the position were that as soon as the previous suspension had expired on 17th May the applicant was unlawfully at large, then it is most surprising that no steps were taken to detain her on 27th May.

17. As against that, Ms Dhir relies on those last two paragraphs of the statement of the Presiding Judge. The difficulty I have with these statements is that the judge has simply not addressed the position as at 27th May. That may not be entirely surprising, since the main thrust of this statement is directed at the limitation issue. But insofar as the Presiding Judge does direct his attention to any particular date, it is to 17th May 1999. Although these two paragraphs have caused me to hesitate before arriving at my conclusion, I am not satisfied that they demonstrate sufficiently cogently that since 27th May 1999 the applicant has been unlawfully at large, in the sense that she is liable to be arrested and detained without any further order of the court or judicial process. The burden is on the Government of the Czech Republic to prove that the applicant is unlawfully at large, and to do so to the criminal standard. That much such is conceded (and rightly so) by Ms Dhir.

18. In my judgment, for the reasons that I have given, that burden has not been discharged. If the burden had been to prove that the applicant is unlawfully at large on the balance of probabilities, I would have been inclined to find that the burden had been discharged. I find it baffling that, knowing that these matters were in issue, and knowing the nature of the challenge being mounted on behalf of the applicant, the Government of the Czech Republic nevertheless has not seen fit to meet these points head-on by some clear explicit statement as to the legal position. That could easily have been done by means of a short statement from someone expert in Czech law. But as things are, that not having been done, I conclude, for the reasons that I have given, that this application must be allowed.

19. MR JUSTICE GIBBS: I agree, and for the reasons given by my Lord would also allow this application.

20. MR HYNES: My Lord, I am grateful. There is an application for costs. The applicant is publicly funded, so the first thing I would ask for is Legal Services Commission Assessment of the applicant's costs. I would also seek costs from the respondent to the applicant on a standard basis. I can see no reason for seeking indemnity costs in this situation.

21. MS DHIR: My Lords, there is nothing I can say in relation to that application.

22. LORD JUSTICE DYSON: Very well, both those applications are granted in relation to costs.