Slavik, R (on the application of) v District Court of Nitra, Slovak Republic

MR JUSTICE OUSELEY: The appellant, in person, appeals against the decision of Senior District Judge Riddle on 7th September 2010 to order his extradition to the Slovak Republic upon an accusation warrant for trial in connection with a fraud allegedly committed in relation to property.

Mr Slavik was represented by Lawrence & Co through the hearings before the District Judge and was represented by them up until the moment when they sought to come off the record by notice on 1st February 2011. Since then, Mr Slavik has been unrepresented.

Mr Slavik first applies for an adjournment of his appeal in order to obtain further legal representation. I initially refused the adjournment but said I would review it after I had heard argument, which I now have. I do not change my mind. This is not a case in which an adjournment is merited. I deal with that matter first.

When this case was before the District Judge, it was adjourned on eight occasions, so a total of nine hearings were listed. The cause of the adjournments was the persistent endeavour of the appellant's solicitors to obtain evidence to show that extradition would breach the appellant's rights, in particular under Article 3 of the European Convention on Human Rights, because of the treatment which he would expect as a Roma on return to Slovakia and more particularly because of a particular risk which he faced with his family from a criminal gang, including one of his co-defendants, amongst whom he had fallen during his time in Slovakia. This gang, it was said, had contacts in the police and prison and a desire for vengeance which would put his life or his well-being at risk. He had, and this at least does not appear to be in doubt, been attacked in his home in the UK during 2009 by a gang of people who were Slovaks and who were prosecuted and punished in this country for that nasty attack.

The chronology before the District Judge is worth setting out. The appellant was arrested on the warrant on 17th May 2010 and was remanded into custody following a short hearing on the 18th pending a hearing listed for the 24th. At this hearing Article 3 issues were raised and the hearing was adjourned until 14th June with directions for the service of skeleton argument and evidence.

The appellant's solicitors requested a listing on 12th June because of difficulty in taking instructions. They had identified the witnesses who would give evidence of the attack in this country to which I have referred and they were looking for, but had not yet identified, an expert. It was directed that the statements from all witnesses but one be served by 19th July 2010. An expert was to be identified and was to provide his dates to be avoided. A hearing was set for 3rd August 2010. Meanwhile, on 1st July, the appellant was granted conditional bail and he has remained on conditional bail.

However, no witness statements were served by the date directed. Unsigned witness statements and a preliminary proof were served on the preceding day with the remainder said to be following for the 3rd. On the 3rd, the appellant stated that an expert had been identified. A full extradition hearing was set down then for 7th September for half a day and the District Judge directed that any additional proof of evidence and skeleton argument be served by 5th August.

On 6th August, the matter was again listed for mention. The appellant's solicitors were saying that the additional material would be served that day but were applying to break the fixture for 7th September because they had not yet instructed an expert. The application was refused and it was ordered that, if no expert material was served by 19th August, the extradition hearing would proceed without any such materials. A further proof was served on 12th August, but no expert evidence and no skeleton argument.

The hearing on 7th September came before District Judge Riddle. He looked at the chronology from the court file. The appellant's representatives applied to adjourn to obtain and serve an expert report. They had previously identified an expert but that expert had no relevant expertise. It was thought that one would be available within four to six weeks. The application for the adjournment was refused. The District Judge said this:

I observe that the District Judge's point about the lack of court decision or relevant international reports, at least on gangs in, and the position of Roma in, the Slovak Republic is an important one. Extradition cases have been going on for some time to Slovakia, to the Czech Republic and elsewhere. The position of Roma in the Slovak Republic and arguments in relation to gangs are unlikely to have emerged for the first time in 2010.

The second point I make is this. The appellant had clearly had a good deal of time in which to obtain an expert's report but had not been able to do so. Third, the appellant had also had a good deal of time in which to put in relevant factual evidence. Indeed, the relevant factual evidence, which would have been a necessary underpinning for any expert's report, was present at court. The District Judge was prepared reluctantly to have a split hearing and to have that necessary evidence called.

After the refusal of the adjournment, the appellant and his lawyer had the opportunity to decide what to do. It was a conscious decision on their part not to call the available evidence.

Having refused the adjournment, and there being no evidence before him in support of the human rights claim and no other points being taken in relation to extradition, the decision of the District Judge was inevitable. The appeal was lodged on the grounds that the District Judge ought to have granted the adjournment so that an expert's report could have been obtained. The grounds of appeal also argued that the appellant would be at risk from gang members from the same gang who attacked him in England and that the prison authorities and police in Slovakia would be unable or indeed unwilling to protect him since some were hand in glove with gangsters such as those feared by the appellant. Again, the importance of an expert's report was emphasised.

I note those grounds of appeal, which must be the grounds which Mr Slavik seeks an adjournment to further.

On 22nd December, I granted prior approval for the purpose of obtaining a report about the extent to which the Slovak judicial authority and its prison system could provide the appellant with reasonable protection. I noted that that permission did not mean that the report would be admissible. No report was submitted before the hearing. It appears that shortly before the hearing a conference took place which led to the termination of the solicitor/client relationship between the appellant and Lawrence & Co. Lawrence & Co are an experienced and reputable firm of extradition solicitors. Mr Slavik was frank and told me why they had ceased to act and come off the record. They did so because they advised that he had no chance and that the draft report to which I shall come did not afford him any realistic prospects of success in his appeal. Mr Slavik said they told him he had no possibility of success.

He says now that he has made contact with a solicitor who has to seek a transfer of the representation order. The solicitor has said that there may be an avenue, although Mr Slavik is not aware of what that might be. He identified the solicitor by the name of George but there was nothing in writing to confirm acceptance of instructions or a view that there might be, on what was known, prospects of success in an appeal. I understand Mr Slavik's concern that he is dealing with his case on his own, that he would much rather have a solicitor and that it is a matter of importance to him and to his family, and a matter of grave concern as well.

I refused the adjournment because the appellant has had ample opportunity before the District Judge to prepare, obtain and put in evidence in support of his concerns. He did not take the opportunity to give oral evidence and they were unable to obtain any useful report. The advice given by the solicitors, and I have now seen the draft report they have, was entirely understandable and this is not a case in which there is a potentially arguable point which it is unrealistic to expect Mr Slavik to argue on his own. There are simply his hopes and his fears and the want of evidence. There is no evidence either that the potential further solicitor has seen something that others have not. Having listened to what is said about this case, I am satisfied that it is a hopeless appeal.

I turn to the grounds of appeal, which are, for the reasons I have given, bound up in my view about the merits of an adjournment. The first ground takes issue with the refusal of an adjournment by District Judge Riddle. That is a completely hopeless contention. The District Judge exercised his discretion on a sensible basis, having noted all that had been done by the appellant, and was prepared to accept oral evidence on the facts. The District Judge, in refusing the adjournment, would have expected to have heard oral evidence on facts which the appellant deliberately decided not to provide.

A decision refusing an adjournment can only be challenged if it is an unreasonable decision, so unreasonable that no District Judge, properly directing himself in law, could reach it or if it has been reached on wrong principles or plainly did not take into account a material consideration. None of those factors is present. This was a proper decision. The right approach was followed and no significant factor was ignored.

Procedurally, as I have said in another case, where an appellant challenges the refusal of an adjournment, the remedy is not an appeal but is by way of judicial review. This case illustrates the importance of adhering to the right procedure, although Mr Harland does not understandably take that procedural point, but I emphasise what would have happened had the correct procedure been followed.

The first is that Mr Slavik would have needed permission to proceed with that point. He would not have been able to come to this court as a right. No judge would have granted him permission to argue that point. He would have had to put in evidence, to which the CPS could have replied, explaining all that had happened leading to the judge's refusal. That would have enabled a proper evidence-based decision to have been arrived at so that the evidence would have been procedurally in the right form and the appellant would have been clearly able to see, from the evidence made available earlier, why the challenge to the adjournment was completely hopeless.

The second reason why this appeal is hopeless is that the ground which relates to Article 3 and Article 8 is simply unsupported by any evidence. It is all very well Mr Slavik saying that there are statements that have been provided to the court. He had the opportunity to give evidence along with other witnesses at court and for them to be cross-examined. He choose not to follow that course and it is not open to him to seek to rely on evidence in this court which was available but which he chose not to deploy before the District Judge absent exceptional circumstances which would permit me to exercise my discretion to admit it. No such circumstances exist. The question of whether an expert's report, which could, if it was truly relevant, have been obtained in the three to four months while the appeal was pending below, is new material which would not normally be admitted here. But, even if I am prepared to allow it in, which for these purposes I do, it is bereft of any factual support, so far as this appellant is concerned, other than the admitted evident fact that he was attacked by Slovaks in this country.

The report is in draft but the clear draft parts are evident and do not detract particularly from it. But the problem is that the report gets nowhere near the level of cogent evidence that would be required to persuade this court that extradition should not take place. I entirely accept that the approach in the case of R (on the application of Rot) v Poland [2010] EWHC 1820 (Admin), with others of a like stance, may have been behind the District Judge's reference to the state of the authorities and I would accept that that may set too high a test, but it is perfectly clear, following the decision in Targosinski v the Judicial Authority of Poland [2011] and indeed following the decision of the European Court of Human Rights in a case concerning asylum seeker removal from Belgium to Greece under Dublin II, that cogent evidence is required before it could be regarded as a breach of Article 3 or Article 6 for a person to be extradited from the UK to an EU member and signatory to the ECHR. The clear and cogent evidence required is simply not present in the report.

So far as the position of Roma are concerned, it does contain evidence that, through the 20th century and possibly into the early years after the totalitarian regimes in East Europe ended, Roma suffered discrimination in a wide variety of ways and at a wide variety of levels, including dealings with police and prison, but there is nothing which suggests that that has continued into the 21st century. The data and indeed the instance of a shooting in police custody are in the 1990s and at the latest 1999. The report itself acknowledges the impact of accession to the EU in terms of the requirements to raise human rights standards.

So far as the more specific point peculiar to Mr Slavik, which concerns his relationship to a gang which appears to include Roma, the evidential basis for saying that the Slovak authorities would be unable to afford a proper level of protection to Mr Slavik from this particular source and a gang is wholly inadequate. The Slovak authorities are aware of their obligations and the fact that the gang or a gang successfully attacked Mr Slavik in the United Kingdom does not mean that in custody in Slovakia proper protection will not be afforded. It is not required that he have an absolute guarantee of protection and the incident in this country demonstrates the limitations of protection. But the evidential basis for the problems with his former colleague in the gangs, someone with whom he worked, putting him at a real risk of having his Article 3 rights breached in Slovakia is simply far below the level necessary to bar extradition.

I should add that I raised for consideration by Mr Harland the question of whether the language of the warrant made it clear whether it was an accusation or a conviction warrant. The language is, on the first sheet, quite ambiguous. Mr Harland has satisfied me, by reference to the decision in Asztalos v Szeksard City Court [2007] EWHC 237 (Admin), especially paragraph 38, that the warrant is valid. The warrant has to be read as a whole. Reading it as a whole, it is clearly an accusation warrant. All the parts that need to be filled in for a conviction warrant are not filled in, all the parts that deal with accusation are, and it is evident from the stage which proceedings have reached and the absence of reference to any trial that it is an accusation not a conviction warrant and is therefore a valid warrant.

For these reasons, this appeal is dismissed.

MR JUSTICE OUSELEY: Thank you, Mr Slavik.

THE CLAIMANT: Your Honour, I did not quite understand what is meant by this dismissal of the appeal, because I made it clear that the -- I have given instructions to solicitors to carry on with the case --

MR JUSTICE OUSELEY: Well, I have refused the adjournment you want.

THE CLAIMANT: And what does it mean?

MR JUSTICE OUSELEY: I have heard your appeal and I have dismissed it. So you must now go back to the Slovak Republic.

THE CLAIMANT: When will this be?

MR JUSTICE OUSELEY: You will have to talk to somebody else about that. It should be ten days.