Tous, R (on the application of) v District Court In Nymburk - Czech Republic

Factual and Procedural Background

This appeal arises under section 26 of the Extradition Act 2003 against a decision by District Judge Evans at the City of Westminster Magistrates' Court. On 16th March, the District Judge ordered the extradition of the Appellant to the Czech Republic pursuant to a European Arrest Warrant issued by a Czech District Court judge in 2009. The warrant relates to a four-year sentence imposed in the Appellant's absence for offences of grievous bodily harm and endangering under the influence of a habit-forming substance, following a motor vehicle accident in April 2008 that resulted in serious injuries and a fatality.

The warrant indicates that the Appellant was not personally summoned or informed of the trial date and place, but states that upon return to the Czech Republic, the Appellant would have legal guarantees including the right to apply for cancellation of the conviction and a retrial within eight days after delivery of the judgment. The Appellant was arrested in the UK in February of the year of the decision, denied guilt, and was remanded in custody after bail was refused. The District Judge considered whether the Appellant was entitled to a retrial under section 20 of the Act and ultimately ordered extradition, concluding the right to a retrial existed as set out in the warrant.

Legal Issues Presented

1. Whether the District Judge erred in concluding that the Appellant is entitled to a retrial upon return to the Czech Republic following a conviction in absentia.
2. Whether the European Arrest Warrant and accompanying documentation sufficiently guarantee the Appellant's rights under Article 6 of the European Convention on Human Rights, including the right to a fair retrial.
3. Whether the procedural safeguards under section 20 of the Extradition Act 2003 and the Framework Decision on the European Arrest Warrant have been properly satisfied.

Arguments of the Parties

Appellant's Arguments

• The District Judge failed to properly assess whether the Appellant has a clear right to a retrial under Czech law, particularly regarding the triggering and duration of the eight-day period to apply for cancellation of the judgment.
• The warrant lacks clarity on when the eight-day period begins—whether from the date of judgment, service of the judgment, or another date—and there was no evidence provided to clarify this.
• The judicial authority did not provide sufficient detail or evidence to satisfy the burden of proof that the Appellant is entitled to an Article 6 compliant retrial.
• Amendments to the Framework Decision in 2009 require explicit guarantees that the Appellant will be served with the judgment upon surrender, informed of the right to retrial, and advised of the relevant time frame, which the warrant does not adequately provide.
• The judicial authority chose not to clarify these matters despite the opportunity to do so, resulting in reasonable doubt about the Appellant’s retrial rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under section 20 of the Extradition Act 2003, which requires the extradition judge to determine if a person convicted in absentia has the right to a retrial and whether the procedural safeguards under Article 6 are met. The court noted that the European Arrest Warrant included a statement of legal guarantees under Article 306 of the Czech Criminal Code, which provides for cancellation of the judgment and a retrial within eight days of delivery of the judgment.

Although the warrant and its translation had deficiencies—such as unclear triggering of the eight-day period and incorrect gender references—the court found that the warrant’s assertion that the Appellant would have the right to a retrial was sufficient. The court emphasized that the Czech Republic’s status as a party to the European Convention on Human Rights further ensures compliance with Article 6 obligations. The court considered the 2009 amendments to the Framework Decision but concluded they did not impose additional guarantees beyond those already incorporated in the warrant.

The court rejected the Appellant’s contention that the lack of clarity about timing of the retrial application created reasonable doubt sufficient to discharge him under section 20. The burden lies with the judicial authority to prove the right to retrial exists, and the warrant’s content met this burden despite imperfections. Consequently, the court affirmed the District Judge’s conclusion that the Appellant is entitled to a retrial upon return.

Holding and Implications

The court DISMISSED THE APPEAL, upholding the decision to extradite the Appellant to the Czech Republic.

The direct effect of this decision is that the Appellant will be surrendered under the European Arrest Warrant with the assurance that he will be entitled to a retrial consistent with Article 6 upon return. The court did not establish any new precedent but reaffirmed the application of established principles regarding retrial rights in extradition cases involving convictions in absentia under the 2003 Act and relevant Framework Decisions.