|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shirnakhy & Anor v Permanent Duty Director, Weiden Local Court Germany & Anor  EWHC 1103 (Admin) (06 May 2020)
Cite as:  EWHC 1103 (Admin)
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE LEWIS
| (1) RAYHAN SHIRNAKHY
(2) JAMAL HOSSEINALI
- and –
|(1) PERMANENT DUTY DIRECTOR, WEIDEN LOCAL COURT GERMANY
(2) AMTSGERICHT COLOGNE, GERMANY
David Perry Q.C. and Juliet Wells (instructed by Armstrong Solicitors) for the Second Applicant
Jonathan Hall Q.C., and Jonathan Swain (instructed by the Crown Prosecution Service) for the Respondents
Hearing date: 30 April 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 10:30am on Wednesday 6 May 2020
Lady Justice Nicola Davies and Mr Justice Lewis:
The First Applicant
"EUROPEAN ARREST WARRANT
This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".
"(i) The expert to have a reasonable opportunity to make any necessary amendments before signing, dating and serving the same.
(ii) The Judicial Authority to have a reasonable opportunity to consider the report and comment upon it.
(iii) (in all likelihood) the expert having to giving [sic] live evidence at some later date, particularly if the contents of her report were not accepted."
The Application for Permission
"2. DJ Zani was unarguably correct in the way he dealt with the attempt to introduce a challenge to whether the Local Court was a judicial authority, authorised to issue EAWs. The earlier EAW was withdrawn because of the lack of independence of the German issuing prosecutor. This new issue concerned whether the Local Court was authorised under German domestic law to issue EAWs. (a) The draft report of a German lawyer on the topic was submitted on the morning of the full hearing, which had already been adjourned once. It could not have been received without being finalised, and an opportunity given to respond, necessitating an adjournment, (b) In any event, the highest that the draft put it was to say that the position was far from clear. No one could have concluded that the German courts were acting without domestic power on that basis. The applicant has identified no binding authorities in support of his claim, (c) Indeed, I do not consider that it would be appropriate for UK Courts to rule on that issue, which is a matter for German courts to decide, (d) I see no reason why DJ Zani had to wait and see what might emerge from DJ Snow who was, it was said, to be hearing such an issue, (e) The fact, if fact it be, that only Regional Courts or Landsgericht are designated for the purposes of Article 6(3) of the Framework Decision does not alter the German domestic position; it is only declaratory and such a declaration is not a requirement for domestic jurisdiction, (f) The grounds refer to the possibility of amended grounds and further evidence, but none have been supplied."
The Second Applicant
The Application for Permission
THE LEGAL FRAMEWORK
"2 Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is—
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State."
"12A Absence of prosecution decision
(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—
(a) it appears to the appropriate judge that there are reasonable grounds for believing that—
(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
(ii) the person's absence from the category 1 territory is not the sole reason for that failure,
(b) those representing the category 1 territory do not prove that—
(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or
(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."
"25 Physical or mental condition
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
"(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition."
The Framework Decision
"Definition of the European arrest warrant and obligation to execute it
1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision…."
Determination of the competent judicial authorities
1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law."
i) the district judge was wrong not to admit the evidence of Dr Oehmichen or that this court should in any event admit that evidence?
ii) the EAWs were not issued by a judicial authority within the meaning of section 2 of the 2003 Act and Article 6 of the Framework Decision because:
a) Amtsgerichte or local courts are not competent as a matter of German law to issue EAWs; or
b) at the time they were issued, Amtsgerichte had not been notified to the General Secretariat of the European Council pursuant to Article 6(3) of the Framework Decision as competent judicial bodies for issuing EAWs?
THE FIRST AND SECOND ISSUES
OTHER GROUNDS OF APPEAL