Budaj v District Court of Presov, Slovak Republic

1. MR JUSTICE DAVIS: This is an appeal brought by Mr Bartolomej Budaj against a ruling in extradition proceedings of the District Judge in the City of Westminster Magistrates' Court pronounced on 30th September 2010, whereby the District Judge found that all the requirements of the Extradition Act 2003 were complied with and ordered surrender accordingly.

2. At the outset of this appeal, Mr Cooper, appearing on behalf of the appellant, applied for an adjournment. In fact, the solicitors for the appellant had written a letter yesterday to the Administrative Court Office requesting that the matter be re-listed on this basis. The letter, among other things, states: "Unfortunately Mr Budaj has been unable to attend two previous conferences with Counsel", and then suggested that counsel would be disadvantaged in advancing an appeal today. Mr Cooper today was unable to add very much to what is said in that letter. I asked him why Mr Budaj had not been able to attend the two previous conferences. So far as one is concerned, he said that Mr Budaj apparently had had insufficient money to travel to London for the conference. So far as the other failure is concerned, he was not in a position to give me an explanation. He was also not able to explain to me why Mr Budaj had not personally attended today, when of course he might have been able to give such further instructions as might have been necessary. Yet further, in the ordinary way it should have been the case that Mr Budaj had given the fullest instructions before the hearing below to enable all the evidence material to his case to be deployed at that stage, as indeed evidence was. It is very important that time limits in the extradition context are preserved. No satisfactory explanation has been given as to why, even now, Mr Budaj has not given such supplemented instructions as might have been appropriate.

3. In my view, it would not be in the interests of justice to extend time or grant a further adjournment, and for that reason I informed Mr Cooper that the appeal must go ahead today.

4. In the event, Mr Cooper has continued to represent Mr Budaj on the appeal today, and, if I may say so, he has done it conspicuously well and I have no reason to think that Mr Budaj has been disadvantaged in any way by virtue of his failure to attend or give any further instructions.

5. The background facts are set out in some detail in the full ruling of the District Judge. This of course is a Part 1 case. The arrest warrant was issued by a judge in the District Court of Presov on 28th January 2010 and that was certified on 7th April 2010, arrest following shortly thereafter. Bail had been granted to the appellant in the meantime whilst the proceedings before the Magistrates' Court took their course. The European Arrest Warrant specified three offences: theft and criminal damage said to have occurred on 3rd April 2002, another theft, apparently on 20th July 2002, and a robbery alleged to have occurred on 7th April 2003. In essence, the challenge was, and is, that lapse of time makes it oppressive, by reference to section 14 of the 2003 Act, for the appellant now to be extradited to Slovakia.

6. The matters were variously charged, it seems, in Slovakia in 2002 and 2003. There was then, it is said, a very lengthy period of remand, perhaps totalling as much as two years, without these particular proceeding to trial. In the event other matters which Mr Budaj, the appellant, was facing did proceed to trial and he received various custodial sentences. Having served those sentences, he remained in Slovakia and then left for the United Kingdom in August 2008 and is now resident in the United Kingdom.

7. It is submitted in the written skeleton on behalf of the respondent by Mr Keith that the appellant is to be described as someone who "fled the Slovak Republic knowing that proceedings were outstanding", but that assertion is not borne out by the evidence. Indeed, the position of the appellant before the District Judge was that he thought that all matters had come to an end and he did not leave until some years later in 2008 and then for any reasons unconnected with seeking to evade justice.

8. The appellant did in fact put in a witness statement before the District Judge and gave evidence before the District Judge. The District Judge recounted what he says in his witness statement in some detail. The District Judge then made these findings:

"... I must presume, very firmly, that the EAW [European Arrest Warrant] accurately reflects the outstanding unresolved offences. To do otherwise would be to ignore the mutual trust underpinning the EAW scheme. In any event having seen and heard Mr Budaj testify, he is, I so find, less than impressive as a witness and vague, albeit not necessarily wilfully misleading, in terms of recalling events, dates, times and places. Accordingly I cannot accept as accurate his assertion all matters were resolved upon his release from prison following the 2005 conviction and sentence. The reality, in my judgment, is that he neither knew nor cared so long as he was not actually in prison."

There is no basis whatsoever for interfering with that finding of fact by the District Judge who had heard the evidence.

9. The District Judge then went on to deal with the argument advanced in the court below by the advocate then appearing for the appellant. He referred to the passage of time and reminded himself of the provisions of section 14 and reminded himself of the leading cases such as Kakis and Gomes & Goodyer. The judge concluded that he could see nothing oppressive in the proper context of the proceedings to justify not ordering extradition, as the judge put it, "Simply that time has caught up with him".

10. The judge went on to say that nothing was done to suggest that all offences had in fact been concluded and the delay could not amount to a bar pursuant to section 14. The judge noted that no particular challenge had been raised by reference to Article 8. Nevertheless, he considered that and concluded that it would not be disproportionate to order extradition, the judge having regard to authorities such as Norris in so ruling.

11. On behalf of the appellant today, Mr Cooper necessarily relying only on materials that were before the District Judge, made these points. The appellant is a man now aged 40. He came to the United Kingdom to better his life and to find work. His life has moved on, as Mr Cooper put it. Further, he has six children, all of them very young, and one of them only recently having been born. As Mr Cooper said, their rights need to be considered just as the appellant's own rights need to be considered for the purposes of Article 8. It takes no imagination at all to imagine the effect on the family unit if the appellant were now to be returned to Slovakia.

12. Second, Mr Cooper referred to what is not really challenged and which can be taken to be the position, that the appellant seems to have spent some two years on remand in custody in Slovakia without facing any trial on these particular charges in respect of which the European Arrest Warrant has been issued. He further stresses that it is not right to categorise him as a deliberate fugitive from justice, a point I have already mentioned. As Mr Cooper said, the prosecuting authorities in Slovakia, as he submitted, have missed the boat. When the appellant was remanded in custody that was the perfect opportunity for them also to prosecute these matters to conclusion and, as Mr Cooper bluntly asserts, it was negligent of them not to have done so. He further says that if the appellant is to be returned to Slovakia, the likelihood is that he will be remanded on these particular matters for a considerable period of time before he faces his actual trial. Overall he submits that it would be disproportionate in such circumstances to remove him. He reminds me of the authorities where, at all events in a borderline case, one may have regard to culpable conduct in terms of delay on the part of the requesting state.

13. Mr Cooper has put the matter very well, but I am not able to accede to his submissions, although I am not entirely without sympathy for at least some of them. As I have said, Mr Budaj, the appellant, is not to be styled as a deliberate fugitive from justice; but at the same time the District Judge made a finding, which was certainly open to the District Judge, that the appellant did not know or care about the position so long as he was not actually in prison and chose to leave Slovakia with that state of mind. I do not think one can spell out from the evidence, and certainly the District Judge did not do so, that the Slovakian authorities had made, in effect, a positive representation that he would not further be prosecuted for the outstanding matters. In that regard I must give effect to the findings of fact made by the District Judge.

14. So far as the Article 8 points are concerned, one, as I have said, must have regard to the position of the family, but regrettably in the extradition context Article 8 is almost always engaged and very often hard results, in personal terms, will sometimes arise. That is the inevitable consequence of extradition where someone faces imprisonment. Very often in consequence a family unit is sundered. True it is that Mr Budaj has established a family life, not only does he have a wife but a significant number of children, some of them young, as I have said; but I do not think that matter of itself raises a sufficient case under Article 8 to justify acceding to this appeal. The bar necessarily has to be set quite high in this regard. I also note that, for example, no evidence over and above the number and youth of the children is raised to give any further force to the Article 8 point by reference to any particular circumstances of any of the children.

15. Considering the matter in the round, it seems to me that the District Judge was perfectly entitled to rule as he did. Accordingly, this appeal must be dismissed.

16. MR JUSTICE DAVIS: Mr Cooper, you have legal representation for today?

17. MR COOPER: I believe I do.

18. MR JUSTICE DAVIS: I will confirm that. You have certainly earned your money.

19. Thank you both very much.