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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gzimaila v Prosecutor General's Office, Lithuania [2015] EWHC 2523 (Admin) (11 May 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2523.html Cite as: [2015] EWHC 2523 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		11 May 2015

1. MR JUSTICE KING: This is an appeal against an order for extradition made by the District Judge sitting at the Westminster Magistrates' Court on 17 October 2014. It is an order for the extradition of the appellant pursuant to an accusation warrant in which the requested person's return is sought to face criminal prosecution for fraud which allegedly took place in July 2010. The EAW was issued by the Prosecutor General's Office, Lithuania on 29 June 2012 and was certified by SOCA on 31 January 2014.
2. The requested person was arrested in this jurisdiction on 2 June 2014. He was produced before the Magistrates' Court on 3 June 2014. He declined to consent to extradition. The hearing was opened and he was remanded on bail. The order was made on the occasion of the final hearing, at which he was legally represented with the assistance of an interpreter. No oral evidence was heard. There was no proof from the requested person.
3. The sole issue taken on this appeal is that the judge below erred in the application of section 12A of the Extradition Act 2003, a section which came into force on 21 July 2014. It is not in dispute that section 12A applies. Section 12A provides as follows:

i. "Absence of prosecution decision

ii. (1)A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—

iii. (a)it appears to the appropriate judge that there are reasonable grounds for believing that—

iv. (i)the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and

v. (ii)the person's absence from the category 1 territory is not the sole reason for that failure.

vi. and

vii. (b)those representing the category 1 territory do not prove that—

viii. (i)the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or

ix. (ii)in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure.

x. (2)In this section "to charge" and "to try", in relation to a person and an extradition offence, mean—

xi. (a)to charge the person with the offence in the category 1 territory, and

xii. (b)to try the person for the offence in the category 1 territory."

4. Section 12A has been the subject of a judgment of the Divisional Court in Kandola & Ors v Generalstaatwaltschaft Frankfurt, Germany & Ors [2015] EWHC 619 (Admin). It is clear both from the face of section 12A and the guidance given in Kandola that there is a two-stage process to be undertaken when applying section 12A.
5. Section 12A provides for an extradition bar by reason of absence of a prosecution decision if, and only if, subparagraph (a) is satisfied by the requested person and then subparagraph (b) is not complied with by the respondent. I need concentrate for present purposes only on subsection (a), providing:

i. "If it appears to the appropriate judge that there are reasonable grounds for believing that -

(ii) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and

(iii) the person's absence from the category 1 territory is not the sole reason for that failure."

6. The wording of section 12A and the judgment in Kandola make clear that the onus is on the requested person to satisfy the judge that there are reasonable grounds for believing that which is set out in (i) and that which is set out in (ii). It is only if the judge is satisfied there are reasonable grounds for believing those matters that the conditions in subsection (b) kick in and impose upon the respondent the onus to prove to the criminal standard either of the matters set out in (b)(i) and (ii).
7. In Kandola at paragraph 30, this appears:

i. "At the first stage, it seems to us that the default position will be that the two decisions have been taken. It is only if the requested person raises before the appropriate judge the challenge that no prosecution decision to charge or try has been made, that the appropriate judge (in England and Wales the DJ) has to decide the point. The phrase 'it appears to the appropriate judge' must mean that he is satisfied, on the material before him, that there are 'reasonable grounds for believing that' one or both of the two decisions have not been made. The phrase 'reasonable grounds for believing' means that, on the objective view of the appropriate judge, there are 'reasonable grounds for believing' that one or both of the two decisions have not been made. 'Reasonable grounds for believing involves something less than proof on a balance of probabilities, but more than simple assertion, or a fanciful view or 'feeling'."

8. Paragraph 31 of Kandola says this:

i. "On what evidence is the DJ to come to a decision that 'it appears' to him that there are 'reasonable grounds for believing' that at least one of the two decisions has or has not been made by the competent authorities? The exercise will be conducted on two bases. First, it may be clear from the EAW itself, read as a whole, that the appropriate authorities have taken or have not taken the two decisions. If the matter is clear from the terms of the EAW as a whole that the decisions have been taken, then the DJ should look no further in relation to that point. That is because the DJ is entitled to rely on the statements made in an EAW by a fellow judicial authority. Although section 12A is not based on either FD [Framework Decision], it seems to us that any statement of the relevant judicial authority on this issue must be treated with a high degree of trust, because the whole basis of the EAW mechanism is 'based on a high level of confidence between Member States': see paragraph (10) of the preamble to FD 2002."

9. In this case, both the appellant, through Mr Kiss-Wilson, and the respondent, through Ms Townshend, invite the court to look no further than the words appearing on the face of the European Arrest Warrant. The judge below did no more than that. In the relevant part of his judgment the District Judge sets out his reasons for rejecting the section 12A point by reference first to that which is stated on the head of the warrant, that is to say:

i. "I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution."

10. Secondly to that which is stated in box (b) of the warrant, namely: "Decision on which the warrant is based", and these words appear under paragraph 1:

i. "Arrest warrant or judicial decision having the same effect: Ruling of the District Court of Kaunas City dated 15 June 2012.

ii. Type: Ruling to impose a measure of constraint - arrest (pre-trial investigation No. 81-1-00306-10)."

11. Finally to that which is set out in box (e) under the heading: "Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person":

i. "Valentas Gzimaila, while acting in a group of accomplices, with persons who were serving their sentence at Kybartai Correctional House - Arnas Tiska and a person who have not been identified during the pre-trial investigation, while seeking to obtain by fraud for his own benefit and for the benefit of his accomplices property of another person - money, on 17 July 2010, approximately at 16:00 o'clock, when a person who has not been identified by the pre-trial investigation called by phone to Jurgita Vasiliauskiene introducing himself as alleged cousin Rolandas Zvicevicius, and provided knowingly false information that he injured a person during a traffic accident, and that close relatives of the said person demanded LTL 6,000.00 to compensate damage, also that he is using another person's phone since he lost his own phone, and thereby having mislead and coerced J Vasiliauskiene into transferring [mobile] telephone service charge up coupons for the amount of LTL 99.00, afterwards she was told to withdraw money from an ATM machine and to give it to his friend under name Arturas, he (V Gzimaila), while executing A Tiska's instructions, approximately at 17:00 o'clock arrived at AB SEB bank located at the address J Basanaviciaus St. 22, Jonana, where he introduced himself as Arturas, a friend of the [victim's] cousin Rolandas Zvicevicius, thereby he mislead J Vasiliauskiene and took LTL 400.00, LTL 300.00 whereof, upon the instructions of A Tiska, he used (spent) for telephone service charge up coupons and LTL 100.00 he left for himself. Afterwards, while continuing the criminal act, on 17 July 2010, approximately at 20:00 o'clock, when the person who has not been identified by the pre-trial investigation called to J Vasiliauskiene and said that the injured person's [health] is worsening and that money is needed, which she has to give to the person under the name Arturas, he (V Gzimaila) while executing instructions of A Tiska, by a taxi vehicle, which has not been identified during the pre-trial investigation, came as a person under name Arturas to the house of J Vasiliauskiene located at Sveicarijos village, Jonava district, from there, together with J Vasiliauskiene he went to Swedbank AB ATM machine located at Vasario 16-osios St. in Jonava town, where he took from J Vasiliauskiene LTL 1,500.00, LTL 1,300.00 whereof, upon instructions of A Tiska, he gave to young ladies who have not been identified by the pre-trial investigation, and LTL 200.00 he left for himself. Afterwards, while continuing the criminal act, on 18 July 2010, approximately at 9:30 o'clock, when a person who has not been identified by the pre-trial investigation called to J Vasiliauskiene and instructed that an additional amount of LTL 1,500.00 needs to be paid to the injured person, which she needs to give to the person under name Arturas, he (V Gzimaila), when executing the instructions of A Tiska, approximately at 12:00 o'clock by a taxi vehicle which has not been identified during the pre-trial investigation, he came to the house of J Vasiliauskiene located at the above mentioned address, where, as the person under name Arturas, he took from J Vasiliauskiene LTL 2,000.00, LTL 1,300.00 whereof he gave to a girl who has not been identified during the pre-trial investigation, LTL 200.00 whereof he used for telephone service charge up coupons, LTL 250.00 whereof he transferred into the account of V Steponavivius, who was serving his sentence at Kybartai Correction House, and LTL 250.00 whereof he left for himself. Thereby, while acting by common intent, by fraud, for his own benefit and for the benefit of A Tiska as well as for the benefit of the person who has not been identified during the pre-trial investigation, he obtained property belonging to J Vasiliauskiene - LTL 3,999.00 thereby inflicting upon J Vasiliauskiene a total material damage in the amount of LTL 3,999.00 i.e. he committed a criminal act provided in Paragraph 1 of Article 182 of the Criminal Code of the Republic of Lithuania."

12. I might add that which is also recorded in the judgment, namely that which appears under the heading: "Nature and legal classification of the offence(s) and the applicable statutory provision/code" with reference to particular Articles of the Criminal Code of the Republic of Lithuania:

i. "Article 182 Fraud

1. Any person who, for his personal or others' advantage, by fraud obtains property or property rights belonging to another person, evades or eliminates property-related obligation, shall be punished by community service."

13. The District Judge referred to the argument that was advanced before him, as has been advanced before me, that the EAW was not issued for the purpose of prosecution but that the appellant was wanted for the purpose of investigation. He found that the warrant was clearly a valid warrant for the prosecution of the requested person in Lithuania on the following grounds:

i. "i. The heading on page 3 of the EAW states that 'I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution'. Those words which describe the purpose of the EAW are clear.

ii. As to the conduct alleged as set out in box (e), I find that the wording sets out:

The requested person is alleged to be part of a plan to defraud another, and took part in obtaining that persons money

The words used make it clear that the pre trial investigation has been completed and that the stage of prosecution has now been reached."

14. In subparagraph iii under this section of his judgment the District Judge considered the point made on behalf of the appellant in respect of box (b) with the reference to the decision on which the warrant is based. The District Judge found as follows:

i. "I find that those words simply describe the type of warrant issued, that being a warrant issued before the actual trial has started. I do not interpret them as showing that the case against the requested person was still at an investigative stage."

15. He then said in his judgment, under the heading "Section 12A EA":

i. "For the reasons set out above I find that the competent judicial authority have made a decision to charge Mr Gzimaila and that therefore there is no bar to his extradition under this section."

16. Mr Kiss-Wilson cogently challenges this line of reasoning. He has submitted to me that looking at the totality of the warrant, in particular what is said in box (b) as to the nature of the warrant upon which the decision on which the EAW warrant is based, and that line in the circumstances set out in box (e), where it is said that "Valentas Gzimaila ... approximately at 16:00 o'clock, when a person who has not been identified by the pre-trial investigation called by phone to [an identified person] introducing himself as alleged cousin [so and so], and provided knowingly false information ... ", on that basis the court should have reasonable grounds for believing that a decision has not yet been taken to charge or try.
17. At first blush I was attracted by the submission that the description of the judicial decision upon which the EAW was based could give rise to reasonable grounds for believing that the purpose of the EAW was to carry out pre-trial investigations. However, reading the totality of the warrant, beginning with its opening phrase, looking at the detail given in the circumstances in box (e) and the other circumstances set out in box (f), I do not consider that there are any reasonable grounds for believing that the competent authority has not made a decision to charge or a decision to try.
18. At box (f) this appears under the heading "Other circumstances relevant to the case":

i. "Pursuant to Paragraph 4 of Article 95 of the Criminal Code of the Republic of Lithuania, if a person who committed a criminal act hides from pre-trial investigation or trial, the course of the statute of limitations has been suspended. The calculation of the statute of limitations shall resume from the day when the person is arrested or arrives on his own free will to pre-trial investigation officer, prosecutor or court. However, the judgment of conviction may not be delivered if 25 years have passed after he/she committed the crime, while in case of crime connected with murder the statutory period is 30 years and calculation of the statute of limitations has not ceased due to commission of a new criminal act.

ii. Valentas Gzimaila hid from the pre-trial investigation, on 29 March 2012 he was announced wanted; from this date the course of the statute of limitations for passing a judgement of conviction has been suspended."

19. I note from that the information that the appellant "hid from pre-trial investigation, on 29 March 2012 he was announced wanted; from this date the course of the statute of limitations for passing a judgement of conviction has been suspended".
20. What has particularly swayed with me, however, is the detail set out under box (e). It sets out in detail that which the appellant is alleged to have done. For example, it says that the appellant, while executing the instructions of one A Tiska, approximately at 5.00 pm arrived at a certain bank at a certain address, where he introduced himself as a friend of the victim's cousin and thereby misled the identified person and took an identified sum of money upon instructions, where he then did certain things. Then it continues: "Afterwards, while continuing the criminal act, on 17 July 2010, approximately at 20:00 o'clock, when the person who has not been identified by the pre-trial investigation called to [an identified person] ... " he, that is the appellant, while executing certain instructions came as a person under a certain name to a certain address and did certain things, involving the taking of money from an ATM machine.
21. No-one reading those details could believe other than that as far as the appellant is concerned the pre-investigation had been completed. The fact that it had not been completed in relation to the identity of other persons or indeed vehicles involved is to nothing in this context. I am not impressed by the argument of Mr Kiss-Wilson that the fact one person has not been identified by a pre-trial investigation means there are reasonable grounds for believing that it had not been completed in respect of the appellant, and a decision to charge or try the appellant has not yet been made.
22. This finding is sufficient for me to conclude that this appeal must fail. However, even if I were wrong on my reading of what is properly to be drawn from the wording of the warrant itself, Mr Kiss-Wilson could not be in a position to submit that the onus has been put upon the judicial authority to prove that which is set out in subparagraph (b) of section 12A (the second stage referred to in Kandola) unless he could satisfy me that there was material before the judge below and/or before me to lead to the conclusion that there are reasonable grounds for believing that (ii) of 12A(a) is satisfied; that is to say that there are reasonable grounds for believing that the person's absence from the category 1 territory is not the sole reason for any failure to make one of the two decisions. In that regard, Kandola assists this court at paragraph 33 in these terms:

i. "How is the DJ to tackle the question, at the 'reasonable grounds for believing' stage, of whether the sole reason for the lack of decisions to charge and/or try is the absence of the requested person from the category one territory? Again, it must be for the requested person at this stage to provide sufficient evidence to raise a case that his absence from the category one territory is not the sole reason for the lack of decisions to charge and try him. It is likely that this could only be done by some sort of extraneous evidence from the requested person. We think that the evidence need not be elaborate, but mere assertion will be insufficient to raise a case that there are "reasonable grounds for believing" that the sole reason for the lack of decisions is not the absence of the requested person from the category one territory concerned."

23. In this case there is absolutely no material before this court to raise the case identified in paragraph 33 of Kandola. All the court has is that which is set out in the warrant itself. No further evidence was put before the judge below and no evidence has been placed before me. It is certainly not sufficient to rely, as Mr Kiss-Wilson sought to, again on that line in box (e): "when a person who has not been identified by the pre-trial investigation", for that purpose.
24. I have not ignored Mr Kiss-Wilson's reliance on authorities which predate section 12A but were decided in the context of the section 2(2) and (3) argument as to whether or not a warrant is a warrant for the purpose of prosecution, in particular Varnas v Lithuania [2013] ECHR 647 and Rytmetis v Prosecutor General's Office Of The Republic Of Lithuania [2010] EWHC 1048 (Admin). Varnas is a decision of the European Court of Human Rights and Rytmetis is a decision of the Divisional Court. The passages relied on by Mr Kiss-Wilson do not assist him on the issue whether or not there is material sufficient to satisfy the court that there are reasonable grounds for believing that the sole reason for the lack of any decision to charge or try is the absence of the requested person from the category 1 territory. They do not deal with this issue. What they deal with is the fact, which I accept, that there is a process in Lithuania whereby a person may be held for the purpose of a pre-trial investigation as well as for the purpose of a judicial hearing and the execution of judgment (see paragraph 57 of Varnas). The paragraph relied on in Rytmetis, paragraph 15, does not assist on the issue to which I have referred. That passage refers to the decision in Thompson v the Public Prosecutor of Boulogne [2008] EWHC 2787 (Admin), where Baker LJ said that care should be taken to ensure that nothing in the body of the warrant detracts from the unequivocal statement that the person is required for a criminal prosecution. That is an observation which goes to the first element of section 12A(a) which I have already determined against Mr Kiss-Wilson.
25. I should also say that I have not ignored the argument raised by Mr Kiss-Wilson that the decision of the Divisional Court in Kandola in the case of the appellant Droma, assists him. As far as Droma is concerned, she succeeded in the arguments raised referable to section 12A. In paragraph 45, this appears:

i. "It is accepted that the JA that issued the Droma EAW is a prosecutor, rather than a judge of the court. It was issued in the context of the issue of an underlying 'untersuchungshaftbefehl', or warrant for "examination, scrutiny or investigation", as is clear from box (b) of the EAW. In box (e) it states that the 'accused with an as yet unknown perpetrator' carried out the extradition offence. On this basis, Mr Summers submitted that there were clearly reasonable grounds to believe that no decision to charge or try Ms Droma had been made. We accept that submission. In fact Mr Jones, on behalf of the respondent JA, conceded that no decision to charge or try Ms Droma had been made by the competent authorities."

26. I do not find that that passage assists in this case because the warrant in this case is very different in its content than that which was apparently in the case of Droma.
27. For the reasons I have already given, in my judgment, when one reads the detail in box (e) one could not come to a conclusion that there are reasonable grounds to believe that in the case of the appellant the pre-trial investigation had not been completed and a decision to charge or try the appellant has not yet been made.
28. For all these reasons this appeal must fail. I stress that it fails on two distinct bases. I am satisfied that there is no material before this court, and was not therefore before the court below, which could lead a court to the conclusion that there are reasonable grounds for believing that the competent authority has not made a decision to charge or has not made a decision to try. But, secondly, quite distinctly, there is certainly no material before this court, and was not below, sufficient to lead the court to conclude that there are reasonable grounds for believing that the person's absence from the category 1 territory was not the sole reason for any such failure.
29. For all those reasons this appeal must be dismissed.