Zorzi v Attorney General Appeal Court of Paris (France)

Is a requested person a “fugitive” if she fails to return to the jurisdiction of the requesting state from the country of which she is a resident in breach of the obligation placed on her by the courts of the requesting state at a time when she was in her home country? That is the critical question which arises in this appeal by Ms Veronica De Zorzi against the decision of District Judge Zani on 19 December 2018 ordering her extradition to France.

We have had the benefit of detailed written and oral submissions from Mr Graeme Hall on behalf of the Appellant and Mr Jonathan Swain on behalf of the Respondent. I am grateful to both for their clear and economically expressed submissions.

The factual background to this appeal is not entirely straightforward. The account set out below is gleaned from a number of documents presented to us, including the Appellant’s witness statement, the further information provided by the requesting state, the statement of Mr RJ Portegies, the Appellant’s Dutch lawyer, a chronology prepared by Mr Hall and, importantly, the decision of the District Judge. The detail is significant to the resolution of this appeal.

The Appellant was born on 15 November 1963 and is a dual South African and Italian national. She has resided in the Netherlands since 1985.

It is common ground that on 14 July 2000, the Appellant was arrested by the French police at the Gare du Nord in Paris, on five charges of buying, possessing, trafficking, importing and smuggling 1400 doses of LSD from the Netherlands. She was brought before a court and released the following day under “judicial supervision”. She says in her witness statement that she was represented in the police station and at court by the same lawyer.

She told the District Judge that she was told by the French judge that she was free to leave France but would have to return to France the following year. According to the further information, she was required to respond to summonses issued by the French Court and to inform the court of any change of address. (It is to be noted that there is an error in the District Judge’s Ruling at paragraph 28(iii) when he refers to 15 June 2002; it should have been 15 June 2000.)

The French Court wrote to her on 30 October 2000, at her Dutch address, indicating that in accordance with the provisions of Article 175 of the French Code of Criminal Procedure, the necessary information had been obtained and the record of the proceedings would be sent to the public prosecutor 20 days later. We have seen a copy of that letter.

The Appellant told the District Judge that she received notification in 2001 requiring her to attend the court and she said she duly appeared. She told him she “was again allowed to leave court after the hearing”. In her witness statement she says that she was represented on this occasion by the same lawyer who had represented her before.

According to the further information, the Appellant appeared before the court following a summons by the French examining magistrate. We were told during argument that this was on 28 June 2001 and that was not challenged. (It appears there is another error in the District Judge Ruling at this point; his reference to 28 June 2002 should have been 28 June 2001.)

According to the further information, although she appeared before the court on that occasion, she was not present for the judgment, when she was convicted of the offences charged. Instead, it is said, her lawyer presented a medical certificate in English which the court had translated. It was said to consist of a certificate written by a homeopathist “which was not detailed” and which the court rejected, holding that the excuse provided by this letter was insufficient.

We have seen, and discuss below, a short, handwritten letter, written in English by a Dutch doctor, dated 24 January 2002 and relating to a later hearing. Plainly, that does not refer to the hearing on 28 June 2001. It follows that either there was another inadequate letter from the Appellant’s doctor produced by the Appellant’s lawyer to the court in June 2001, or the further information is in error and the reference by the French authorities to a letter from a doctor seeking to excuse the Appellant’s attendance relates to the later hearing. Certainly, no letter relating to the hearing on 28 June 2001 was produced to the District Judge or has been shown to us.

In any event, it is clear that on 28 June 2001, a request was made by the French authorities for the provisional arrest of the Appellant for the purpose of extradition. That emerges both from the further information and from a statement from the

On 27 December 2001, the French Ministry of Justice issued a request under the 1957 European Convention on Extradition (“1957 Convention”) seeking the Appellant’s surrender “for the purpose of enforcing an irrevocable prison sentence of three years…”

The Appellant appealed the sentence of 3 years and the appeal was listed for February 2002.

As noted below, we have been shown a copy of a letter from someone called “E.

A subsequent hearing was fixed for 5 June 2002. The Appellant was summonsed to that hearing but did not attend. She was represented by her lawyer. She later received notification from the French Court that the Court of Appeal had upheld the three-year prison sentence for the offences committed in July 2000 and that a warrant had been issued for her arrest. Her failure to attend the French Court in 2002 put her in breach of the terms of the judicial supervision imposed in July 2000.

The French authorities sought her extradition from the Netherlands pursuant to the 1957 Convention and the Dutch Extradition Act. She was arrested in the Netherlands on that warrant in 2003. She resisted extradition from Holland. On 19 September 2005 a European Arrest Warrant (“the first EAW”) was issued in respect of the same criminal conduct but was not enforced.

On 7 October 2005, the Dutch courts refused the extradition request, a decision confirmed by the Dutch Minister for Justice on 9 January 2007.

On 6 October 2015, the French authorities published an alert for the first EAW. That first EAW was certified by the National Crime Agency (NCA) on 28 October 2016.

On 29 July 2018, the Appellant was arrested at Manchester Airport, pursuant to the first EAW, whilst returning home to the Netherlands after visiting her former partner who was seriously ill in a hospital in the city.

For reasons that are opaque, a fresh EAW (“the second EAW”) was issued on 4 September 2018 to replace the first EAW which was withdrawn. The second EAW was certified by the NCA on 21 September 2018. On 11 October 2018, the Appellant was arrested by appointment on the second EAW and the present proceedings were formally opened at Westminster Magistrates’ Court.

The relevant statutory provisions are s11, s14 and s27 of the Extradition Act 2003 (“2003 Act”). S11 provides:

“11 Bars to extradition

(1)

If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of…

(c)

the passage of time;…”

S14 provides:

“A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have

(a)

committed the extradition offence (where he is accused of its commission), or

(b)

become unlawfully at large (where he is alleged to have been convicted of it).”

S21 provides:

“(1)

If the judge is required to proceed under this section (by virtue of section 20 he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(1)

If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(2)

If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.

(3)

If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory.

(4)

If the person is remanded in custody, the appropriate judge may later grant bail.”

The relevant convention right here is article 8 ECHR.

District Judge Zani provided a detailed ruling dated 19 December 2018. He noted that the challenges raised were the passage of time under s14, article 8 under s21, prison conditions and article 3 and abuse of process. Only the first two are pursued before us.

The Judge correctly noted that France was seeking the Appellant’s extradition to serve a sentence of three years’ imprisonment in respect of the conviction set out in the second EAW. He noted that this was a replacement EAW for one that had been originally issued on 19 December 2005 but later withdrawn. He noted that a full hearing took place on 28 November 2018 when both parties were represented by counsel.

The Judge recorded that, in evidence, the Appellant had told him that she had been arrested for this matter in July 2000 and had been charged and appeared in court. She had told him she had informed the French judge that she wished urgently to return to Amsterdam to join her two-year-old daughter. She added that she was allowed to leave by the Court and was advised to “go and change my life”.

The Appellant told the Judge that she was informed by the French judge of the need to return to court in Paris the following year. She received notification the following year to attend court and did so. She was again allowed to leave court after the hearing. She was summonsed to a further hearing in 2002 but was not able to attend due to illness and this, she said, was confirmed in writing by her doctor. Some months later, she received notification from the French government that she had been given a three-year sentence of imprisonment and that a warrant for her arrest had been issued. She said she felt she had turned her life around and decided not to surrender to the French authorities.

She said she was arrested in Amsterdam in 2003 under the terms of the arrest warrant issued in France. Those proceedings in the Netherlands lasted until 2007 when she learned that the French request for her to be returned to France has been refused. She said that she heard no more about the case until she came to the UK on 27 August 2018 to visit her daughter’s father who was seriously ill in hospital in Manchester. She was arrested on her arrival at Manchester Airport.

The Appellant adduced into evidence a statement from Mr Portegies which discusses the Dutch extradition proceedings. As the Judge noted, he stated in short “That extradition was refused by the authorities in the Netherlands because VZ was considered by the Dutch authorities to be an “integrated foreign national””. Mr Portegies suggested that the French authorities could have made an application to the Dutch authorities for the Appellant to serve her sentence in Holland but no such request was made.

The Judge noted the further information provided by the French judicial authority. He noted that information asserted that the Appellant “was aware that she had been placed under judicial parole” on 15 June 2002 but did not respect the conditions imposed and “did not present herself to the summons anymore” As a result of which, said the Judge, “an arrest warrant was issued on 28 June 2002”. I note, in passing that there must be an error by the Judge; the further information in fact refers to the issue of an arrest warrant on 28 June 2001.

In addressing the challenge under s14, the District Judge referred to the well-known authorities of Kakis v Government of Cyprus [1978] 1WLR 779, Gomez v Government of Trinidad and Tobago [2009] UKHL 21, Wisniewski v Poland [2016] EWHC 386 (Admin) and Kila v Governor of Brixton Prison [2004] EWHC 2824 (Admin).

At [41], the Judge dealt with submissions that the French authorities had been guilty of culpable delay by failing to take steps other than seeking extradition. He then set out his reasons for concluding that the Appellant was a fugitive from French justice and that she was accordingly unable to avail herself of the protection that this section of the 2003 Act provides. I return to his reasoning below.

On that basis, he rejected the first ground of challenge. As to article 8, the District Judge referred to the Supreme Court’s decision in Norris v Government of United States [2010] UKSC 9, HH v Italy [2012] UKSC 25 and Polish Judicial Authorities v Celinski [2015] EWHC 1274.He went on to set out the article 8 balancing exercise as follows at [95] – [96]:

He concluded that it would not be a disproportionate interference with the article 8 rights of the requested person for extradition to be ordered. His reasons and findings for so doing so were set out at [97]:

On behalf of the Appellant, Mr Hall noted that the Judge had found that the Appellant was a fugitive from justice because she knew she had been convicted and sentenced and had chosen not to return to France during the appeal proceedings. She was clearly aware she was wanted and had “thwarted French efforts to execute the sentence”. The Judge had found there was no culpable delay and implicitly that no false sense of security arose.

He challenged each of those conclusions. Those conclusions had been reached whilst considering the s14 challenge but must “have equally infected the conclusions” in respect of article 8.

Relying on Pillar-Neumann v Public Prosecutor’s Office Klagenfurt [2017] EWHC 3371 and Versluis v The Netherlands [2019] EWHC 764 (Admin), he submits that the Appellant had not evaded arrest, concealed her whereabouts, evaded justice or put herself beyond the reach of the authorities. He says her domestic arrest warrant was issued on the same day as the 1957 Convention request and she was entitled to defend the extradition proceedings. She had not concealed her whereabouts in that the Respondents had always know where she lived. She had been released on bail and had returned to France on one occasion. She had been summoned to attend again but

Mr Hall acknowledges that culpable delay can only be relied on if the Appellant is not a fugitive. Nonetheless he submits that there were a number of serious failures by the French authorities which have contributed to the delay: they failed to appeal the decision of the Dutch court in 2005 under the 1957 Convention request; they failed to seek to enforce the three-year sentence in the Netherlands; they failed to include the Appellant’s Dutch address in the EAW issued in 2005 and they failed to seek to enforce the EAW in the Netherlands. He says, furthermore, that the courts have consistently held that inaction may lead to a false sense of security.

As to article 8, Mr Hall argues that if the Judge was wrong as to his conclusion on the Appellant’s fugitive status, this court should undertake its own balancing exercise.

In response, Mr Swain, on behalf of the French Authorities, says that the District Judge was right to conclude that the Appellant was a fugitive. He says that the evidence from the Judicial Authority establishes that the Appellant was under judicial supervision from 15 July 2000 and that she failed to comply with the conditions of that supervision with the result that the arrest warrant was issued on 28 June 2001. He says that the District Judge was right to conclude that the Appellant was aware of the summons requiring her to attend the appeal hearing in 2002 which she failed to attend. She received notification from the French courts of the sentence and that a warrant for her arrest had been issued following her failure to attend. She then “decided not to surrender herself to the French penal authorities”. He says this provides a proper basis for the District Judge’s findings that the Appellant was a

Mr Swain say that Pillar-Neumann was a case which turned on its facts and can be distinguished. He points out that the requested person in that case had been residing in the UK before the criminal investigation began and only became aware of the criminal proceedings whilst in the UK. She had never been under any obligation to the Judicial Authority. She could not have returned even if she had wished to do so because she had no passport. He accepts that resisting extradition did not render an individual a fugitive but asserts that that conclusion did not form the basis of the District Judge’s findings in the present case. He says that Versluis can similarly be distinguished on its facts. The requested person there was not under any obligation to co-operate with the enforcement of the prison sentence. By contrast here, the Appellant, argues Mr Swain, was the subject of obligations imposed by the court including obligations to attend hearings. She breached those obligations; she failed to surrender to the court and she became a fugitive.

Mr Swain says that the District Judge was correct to determine there was no culpable delay on the part of the Judicial Authority in this case. He says there are no grounds for criticising the failure of the French authorities to appeal the Dutch decision refusing extradition. He says the Judicial Authority cannot be criticised for failing to request a transfer of the sentence to the Netherlands given that there is no evidence before the court to address the legal requirements for such a process to be undertaken. He says there was no significant delay after the refusal of the original request in

As to article 8, Mr Swain submits the District Judge approached the balancing exercise correctly. In particular, he was correct to conclude the Appellant was a fugitive, correct to consider there was no false sense of security and correct to reject the suggestion that there was culpable delay in this case for which requesting state was responsible.