Orechovsky v The Government of Slovakia

LORD JUSTICE KENNEDY: This is an application for habeas corpus brought by Roman Orechovsky following the decision of District Judge Evans to commit him to await the decision of the Secretary of State in relation to his return to Slovakia. The applicant is 29 having been born on 2 October 1974 and is accused of offences of robbery and other crimes committed in the Slovak Republic between October 1997 and February 1998. For present purposes the details do not matter. It is common ground that the offences are extradition crimes. He was on bail and was due to stand trial in Slovakia on 7 January 1999, but he did not attend at court. In November 2001, he was reported to be living in London and the Government of the Slovak Republic then sought his extradition. The Secretary of State gave authority to proceed, the applicant was arrested on 10 September 2002, and on 16 January 2003, he made his first appearance at Bow Street Magistrates' Court.

Prior to and in contemplation of that hearing, Mr Burton, counsel for the applicant, prepared a skeleton argument in which he made it clear that only one issue was being raised by the applicant and that related to section 6 of the Extradition Act 1989 which, so far as is material, reads as follows:

The applicant is a Roma and his contention was and is that because of that he might, if returned, be prejudiced in the way envisaged by section 6(1)(d).

Where that issue is raised it is common ground that the burden of proof lies upon the fugitive who makes the allegation, but he does not have to prove that conduct of the type envisaged by section 6(1)(d) is more likely than not. In R v Governor of Pentonville Prison ex.p Fernandez (1971) 1 WLR 987, the House of Lords was considering section 41(c) of the Fugitive Offenders Act 1967 (the predecessor of section 6(1(d) of the 1989 Act) and Lord Diplock said at page 994G that because of the gravity of the potential consequences, a lesser degree of likelihood is sufficient. He accepted as appropriate formulations used in the lower courts -- a reasonable chance, substantial grounds for thinking and a serious possibility.

In his skeleton argument of 4 January 2003, Mr Burton indicated at paragraph 6 and thereafter, the nature of the applicant's case. The applicant and others would be called as witnesses to give evidence of racial prejudice against them in Slovakia, including prejudice on the part of the police. Paragraph 7 of the skeleton begins:

The remainder of the skeleton contains an analysis of the articles referred to in paragraph 7 which is said to support the proposition that the applicant might if returned suffer the fate envisaged in section 6(1)(d) of the Act. It appears from the statement of Mr Mahesh Hebbar, the solicitor for the applicant, that on 16 January 2003, the Crown Prosecution Service, acting for the Government of Slovakia, sought an adjournment to enable them to deal with the points raised in Mr Burton's skeleton and the documents appended to it. The application was opposed and was not granted, but the hearing had to be adjourned for lack of an interpreter, and on 7 March 2003 and 10 March 2003, the Slovak Ministry of Justice responded in writing to the general allegations made by the articles exhibited to Mr Burton's skeleton.

Ms Adina Ezekiel, counsel for the Government of Slovakia, was then able to prepare an 11-page skeleton argument which responded to the skeleton argument prepared by Mr Burton. Significantly, her skeleton argument did not assert that the articles annexed to the skeleton argument of Mr Burton were inadmissible.

When the matter came back before District Judge Evans on 19 May 2003, the Government of Slovakia was represented by Mr Hines. He submitted that the internet material annexed to Mr Burton's skeleton of 4 January 2003 was inadmissible. The district judge upheld that submission and refused an application for a further adjournment in order to see if the internet material could be presented in an acceptable form. Those are the decisions being challenged in the proceedings before us.

The district judge then heard evidence from the applicant and considered evidence in statement form from his wife and a number of others. He analysed that evidence and there is no criticism of his analysis.

As to the law, the district judge referred to two authorities. The first being in the matter of Ramda v Boutarfa, 25 June 1997, unreported. In that case two Algerians were resisting extradition to France on the basis of French hostility to those from Algeria. This court accepted that the experience of the judges was such as to ensure a fair trial despite inflammatory press reports and what had been said by a politician.

The second authority was R v Governor of Brixton Prison ex.p Lodhi which came before this court in March 2001 [2002] EWHC Admin 178, and again in October 2002 [2002] EWHC Admin 2029. The allegation there was of discrimination by the United Arab Emirates against non-nationals, and once again it was made clear that what mattered was not general attitudes, but how the particular fugitive would be treated on return. That is apparent from paragraphs 34 to 37 of the judgment of the court given by Brooke LJ in the 2002 case, and in the present case the district judge said:

The district judge went on to point out that there is no jury trial in Slovakia, and in relation to the applicant, the involvement of the police seems to be over, except for giving evidence at the trial. Furthermore, the applicant does not appear to have made any complaint about their treatment of him in this case.

The cases against the applicant would appear to turn on the evidence of victims, and the applicant admitted being with the first victim at the relevant time. As to the second matter, he admitted having a card and money said to have been obtained by robbery. He also accepted in evidence before the district judge, that despite previous involvement with the courts in Slovakia on two or three occasions, he had not made any complaint about the way he had been treated.

As the district judge observed, he had in the past been convicted of theft, but was given a suspended sentence, and in relation to the present matter he was granted bail. Under Slovakian law, if the applicant does not choose a lawyer, one will be appointed for him, and the district judge noted that the applicant's co-accused in relation to the first robbery, who is not a Roma, has been dealt with and sentenced to imprisonment.

The only allegation of racial prejudice against the judiciary detected by the district judge came from a civil litigant who had lost, and as the district judge said, it was not possible to say whether he lost because of racial prejudice or on the merits.

In the end, the district judge accepted that there is prejudice in Slovakia by some people towards Romas, but, as in Lodhi, it is not shown to be sanctioned or accepted by the authorities in a country which is a member of the Council of Europe and where the European Convention on Human Rights takes precedence over domestic law.

In the field of immigration the Slovak Republic is listed in section 94(4) of the Nationality, Immigration and Asylum Act 2002 as one of the countries where, in general, there is no serious risk to persons entitled to reside there, so removal to that country will not contravene the United Kingdom's international obligations.

So the district judge was not satisfied to the relevant standard of proof that any prejudice or discrimination which exists is sanctioned by the state, or, more particularly, he was not satisfied that the applicant as an individual would be prejudiced as set out in section 6(1)(d) if he is returned to Slovakia.

Mr Burton submits that the district judge was wrong to exclude the internet material, and that if it is given proper weight, together with the evidence already adduced and the statements signed by Dr Donald Kenrick on 24 October 2003, but only submitted to the court on 31 October 2003, then in relation to section 6(1)(B), the burden of proof should be found to have been discharged.

As to admissibility, Mr Burton points out that in Schtraks v Government of Israel (1964) AC 556, the House of Lords was considering, amongst other matters, the inhibition on return to be found in section 3(1) of the Extradition Act which provides that:

New evidence was tendered to the House of Lords and was admitted in relation to the political issue. At page 582, Lord Reid observed:

That approach was adopted in relation to section 6(1)(d) by Brooke LJ in Lodhi (No.1) in which it seems to have been common ground that when considering whether there are substantial grounds for thinking that the applicant for habeas corpus will be prejudiced as envisaged by section 6(1)(d) if returned "the court is not restricted to considering evidence in the strict sense". A similarly relaxed approach to admissibility of evidence seems to have been adopted in Ramda v Boutarfa where various reports from, among others, the Royal Institute for International Affairs and Amnesty International were considered. For the Government, Ms Ezekiel submits in her skeleton argument that the district judge was right to exclude the internet material because in Union of India v Narang [1978] AC 247, it was said by Lord Widgery CJ in this court at 258H that whether it be a question of admissibility of evidence or of statutory defences, the magistrate is concerned with the English law and nothing else. But that was said in relation to a contention that the admissibility of the evidence of an accomplice should be decided in accordance with the law of the requesting state -- in that case India. Our attention was also invited to the judgment of Croom-Johnson J in R v Governor of Pentonville Prison ex.p Kirby [1979] 1 WLR 541, where he said at 543H and at 544C to D, that it is English rules of evidence that have to be applied in the course of committal proceedings under the Fugitive Offenders Act 1967. But again that was said where the alternative was to apply the rules of the requesting state, whereas here we are concerned with what the threshold of admissibility should be under English law, and as to that, I accept the guidance to be found in the cases to which Mr Burton referred.

In her oral submissions, Ms Ezekiel adopted a different stance, saying that although someone in the position of the applicant seeking to take advantage of section 6(1)(d) does not have to comply strictly with rules of evidence relevant in relation to other issues, the material adduced must be relevant to the situation of someone facing extradition to face specific charges. She submits that upon analysis the documentary material presented to the district judge contained nothing of any value. As Lord Reid pointed out in Schtraks, such material may carry less weight than properly sworn statements. It may well have been selected by some representative body or pressure group, such as in this case the European Romany Rights Centre, and save for such authenticity as it derives from the body by which it is published, it is unevaluated. As Ms Ezekiel points out, it may be useful to contemplate the position of someone seeking to oppose the extradition of a member of an ethnic community to stand trial in the United Kingdom. It would not be difficult to gather published material, some of it from reputable sources and critical of the police, which could be used to advance the contention that such a person would not receive a fair trial in the United Kingdom. We might regard that proposition with surprise, but a foreign court could be mislead by the material if not careful to test its relevance and its weight.

All of that I accept, but for the reasons I have given, I consider that the district judge was wrong to exclude the internet material entirely on the basis that it was not properly proved. I must therefore consider the impact of that material and of the statement of Dr Donald Kenrick.

The excluded material is in the form of reports from a number of well-known bodies such as Amnesty International, Human Rights Watch, the International Helsinki Federation of Human Rights and the US Department of State Bureau of Democracy as well as ERRC and others. Inevitably the reports are backward looking and relate to events prior to publication. None address the fate of returning fugitives, but Mr Burton submits that they show that there is prejudice against Romas in the general population and a reluctance, even a judicial reluctance, to address racially motivated crime, often perpetrated by skinheads. The Bureau of Democracy report published in March 2002 notes the steps taken to safeguard judicial independence and states that:

It seems to me that very little weight can be attributed to an unparticularised qualification of that kind. An ERRC report contrasts a decision to prosecute a Roma for murder with the apparently lenient approach adopted to some skinheads who attacked a Romany woman in her home, but that seems to me to be of no assistance to an English court considering whether this applicant should be extradited to stand trial. His offences do not seem to be related in any way to his ethnic origin and indeed his co-accused is not a Roma.

But Mr Burton submits that what is in the documents should have on this court a cumulative effect. He drew our attention to what was said at a pre-election rally by a politician of the far right, but the report makes it clear that many others disapproved and sought to strip the offending politician of his immunity. Another politician proposed, in offensive terms, setting up reservations for Slovak Roma who refused to assimilate into society, but he was prosecuted for instigating racial hatred. The prosecution was discontinued by the district court prosecutor for lack of evidence, but an investigation continued. Mr Burton was critical of the decision to discontinue, but that is a good example of something which cannot be fairly evaluated on the basis of a brief report.

Our attention was then invited to reports of discrimination and anti-Roma violence by the police. An Amnesty International report from November 2002 begins:

That is of course regrettable, but reports of ill-treatment by police officers and of death in custody in suspicious circumstances are not unknown in the United Kingdom. What has happened to some individuals in Slovakia like Lubomir Sarissky and Karol Sendrei has clearly given rise to a lot of concern, but the concern is healthy. Sometimes it relates not to the treatment of an individual but of a whole village, and there are complaints of police misconduct committed by local police forces supervised by a local mayor.

This general material scattered through the reports is echoed in the statement of Dr Kenrick. He has written widely on gypsies and has visited the Slovak Republic three times -- two of those visits being during the last 10 years. He noted openly expressed anti-gypsy sentiments and asserts that discrimination and prejudice continue. He gives examples, but he also notes official attempts to deal with discrimination and prejudice: for example, he says that the current Prime Minister does not share the anti-gypsy sentiments of his predecessor, and that the interior ministry has promised that racism will not be tolerated in the police force.

Mr Burton drew attention to an Amnesty International report in relation to a human rights lawyer who was twice threatened by armed gangs, but he went to the police. There seems to be an issue as to whether he was then refused police protection, but that cannot be of relevance to us.

What is of relevance is what is likely to happen to this applicant if returned. The charges have already been decided. He is entitled to a lawyer of his choice and if he does not choose one, a lawyer will be assigned to him. There seemed to be no complaint about the trial process and the allegation of partiality by judges in ordinary criminal trials are limited and wholly unparticularised. Dr Kenrick's conclusion that "there is some evidence that the courts are biased against gypsies" relies on the same sort of material set out in the reports.

No one reading the documentary material could doubt that there are serious problems in Slovakia involving racial tensions, and I accept that, as Mr Burton points out, the Slovak Government in March 2003 did not choose to respond to the detailed allegations in the reports. It would be surprising if it had done so in the context of extradition proceedings in relation to which the relevance of many of the allegations is far from clear, but the government did offer a response upon which Ms Ezekiel relies.

First of all there is a letter from the Police Inspection Service dated 7 March 2003 in which it is pointed out that during the period from 1991 to 1998 the applicant has been convicted of "several violent crimes and crimes against property". Never has he made any complaint of anti-Roma bias. That was something he accepted before the district judge. When asked in re-examination why he had not complained, he said he did not have money to pay a legal representative, but it is common ground that when there are criminal charges a legal representative is always made available.

Turning to the letter written by the Director General of the International Law and European Integration Department of the Ministry of Justice on the same day, it is clear that equality before the law is guaranteed by the Constitution and the Criminal Code. If returned, the applicant would be tried before a senate of a District Court, with a legally qualified presiding judge. He would be represented by an attorney whom he would be entitled to choose, and if convicted, he would be sentenced in accordance with general principles of sentencing set out in the Code. The Ministry of Justice does not control the police, but does control the prison administration which is operated in accordance with the European Convention on Human Rights.

Putting all of that material together with the evidence considered by the district judge, it seems to me that it is possible to reach a number of conclusions.

For all of those reasons it seems to me that there are no substantial grounds for thinking that the applicant might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, and I would therefore dismiss this application.

MR JUSTICE ROYCE: I also consider that the excluded material should have been admitted. However, for the reasons set out by my Lord, I too have reached the conclusion that there is no serious possibility of the applicant being prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race. I too would dismiss this application.