Stojkova, R (on the application of) v District Court In Okresny [2010] EWHC 3532 (Admin)

Case No CO/9256/2010[2010] EWHC 3532 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 20 December 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OF STOJKOVAClaimantv
Between
DISTRICT COURT IN OKRESNYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr B Keith (instructed by Lawrence & Co) appeared for ClaimantMr D Sternberg (instructed by CPS Special Crime Division) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE DAVIS: This is an appeal against an extradition ordered by District Judge Zani on 26 August 2010. The appellant, Helen Stojkova, is under the order to be extradited to Slovakia, which is, of course, a category 1 country for the purposes of the Act and a member of the European Union.[2]The extradition was ordered pursuant to a European arrest warrant previously issued in the following circumstances. The appellant had been convicted in Slovakia in respect of the offence of possession of a narcotic drug on 4 September 2000. She had bought about 3 grams of heroin from a dealer and was arrested. There was also an offence of theft occurring on 26 September 2001, in effect involving her stealing a purse from a bag.[3]There were two judgments given by the courts in Zilina, the district court, and latterly the regional court on 14 September 2004. It appears there is some lack of clarity as to how the two judgments interrelate, and, indeed, there are some references to there having been an appeal on sentence but, as I understand it, the appellant admitted her guilt and she was convicted and sentenced in her presence and ultimately received a sentence of four years in prison.[4]However, in September 2004, and before the sentence could take effect with regard to her, she came to the United Kingdom. It appears that she has family members in the United Kingdom. She gave birth to twins in 2004. As I gather, her husband has remained in Slovakia.[5]On 24 October 2005, an order for her committal to prison was issued by the district court in Zilina and she was arrested pursuant to the European arrest warrant on 9 February 2010 and produced at Westminster Magistrates Court on that date.[6]The hearing took place on 24 June 2010 and again on 12 August 2010, the judgment being delivered on 26 August 2010, as I have mentioned.[7]I have previously ruled that the appellant should not be permitted at this appellate stage to advance a further ground which was not relied upon before the district judge. The two grounds on which a challenge to the order is made is by reference to the provisions of section 13(b) of the 2003 Act, and by reference to section 21 of the 2003 Act, read in conjunction with article 3 of the European Convention on Human Rights.[8]So far as section 13(b) is concerned, that, of course, applies if it appears that if extradited the appellant might be prejudiced at her trial or punished, detained or restricted in her personal liberty by reason of her race, religion, nationality, gender, sexual orientation or political opinions.[9]In this context, the appellant put in a witness statement and gave evidence before the district judge. In her witness statement she said that her family was of Romany gypsy stock, although she said that they did not live as gypsies and had not done so, as far as she was aware, for generations. She said that her ethnicity had caused the family "problems" in Slovakia as there is a lot of racism there, she says; and she recalls an instance at school when she was 8 when her teacher treated her badly because she said that she was a gypsy. She claims that she has always faced prejudice throughout her life in Czechoslovakia and the Slovak Republic due to her ethnicity.[10]She describes how she became involved in the world of drugs and she says also that her husband was heavily involved in organised crime. She says that when she was arrested on 26 June 2001 she was beaten. She also says that she was beaten on the bottom of her feet with batons on another occasion by the police. She then accepts that she admitted the offence in court and was ultimately sentenced to four years' imprisonment. She claims that she received as high a sentence as she did because of her gypsy origin and that she was discriminated against. She also asserts, without any evidential basis, her belief that the judge was bribed.[11]She says, so far as her problems about living with her husband are concerned, amongst other things this:
"The problems became worse as between late 2003 and early 2004 I saw what I believe was my husband shooting somebody outside an isolated property we had been staying at."
[12]The words "I saw what I believe was my husband" rather speak for themselves.[13]She then says in her witness statement that during this period she realised:
"That I was attracted to women. This was and is completely unacceptable in my community. Homosexuals are treated like absolute scum and are victimised. I tried to keep this a secret, but I think my husband found out about a relationship with a particular woman. This only made the situation a lot worse."
[14]Again the words "I think" are striking.[15]She then deals with her living conditions in the United Kingdom, and she said that she thought she had beaten her drug habit but relapsed in 2007. She says about her relapse "I think this was due to feeling sexually repressed."[16]She then goes on to say that she has no family to speak of left in Slovakia, and, "I know that with my background I would not last a minute in Slovakia." It would appear from her evidence that she has not, in fact, had any direct prison experience in Slovakia herself.[17]Expert evidence was given by a Dr Kenrick on behalf of the appellant in the court below. Dr Kenrick had previously submitted a written report relating to the position of Roma in Slovakia. He gives examples of active discrimination against Roma. He extends those examples to the police and to discrimination in housing and health and to discrimination in education. He also in his report has a section on prisons, referring to overcrowding and things like that.[18]Dealing with the issue of the appellant's claimed lesbian orientation, Dr Kenrick in his written report says this:
"Homosexual and lesbian practice are permitted by the state. There is some prejudice, as evidenced by the recent attack on a gay pride parade. I do not see this as a relevant issue in this case."
[19]In his judgment, District Judge Zani set out the background and the applicable legal principles in some detail. He summarised the evidence given by the appellant before the district judge and then went on to deal with the evidence given by Dr Kenrick.[20]He records Dr Kenrick's evidence that Dr Kenrick anticipated that the appellant may well be harassed by jailors and non Roma prisoners, and also by some Roma prisoners who may themselves take objection to her sexual orientation.[21]The district

judge went on to record his view as follows:

"Albeit Dr Kenrick has considerable experience in matters Slovak, his expertise is in the field of education and language. Furthermore, when he has visited the Slovak Republic, he has not been inside any of their prisons. He acknowledges that some independent human rights organisations have had access to such prisons and that a report was prepared in 2009 stating that conditions therein had recently improved. Dr Kenrick's evidence was only of limited assistance."
[22]I can see no reason at all for departing from that assessment of Dr Kenrick's evidence by the district judge.[23]Dealing, then, with the argument by reference to section 13, the district judge directed himself in accordance with what was said in the case of Fernandez v Government of Singapore [1971] 1 WLR 987 subsequently endorsed by Scott Baker LJ in the case of Hilali v Central Court of Criminal Proceedings Number 5 [2006] EWHC 1239. This was said:
"The burden is on the appellant to show a causal link between the issue of the warrant, his detention, prosecution, punishment or the prejudice which he will suffer and the fact of his race or religion. He must show that there is a reasonable chance or reasonable grounds for thinking, or a serious possibility that such events will occur."
[24]The district judge found here that there was no such reasonable ground for thinking, or serious possibility, and he was satisfied that the Slovak authorities were aware of their obligations and that they would comply with the same.[25]The district judge had express regard, as he stated, to the evidence of the appellant in reaching this conclusion. However he made no specific finding as to her credibility, and, for example, he made no specific finding as to whether or not she had been beaten by the police, as she said.[26]However, it has to be said with regard to the appellant's witness statement that much of it is assertion and it is difficult to see the basis, in some respects, for which the appellant justifies alleged fears as to what may happen to her whilst in prison: although, of course, she does speak as to some instances of prejudice to her beforehand.[27]It seems to me that there is no basis for interfering with the district judge's conclusion on this particular point. He assessed the evidence and he reached a conclusion open to him. Broadly speaking, there is a presumption, rebuttable, of course, that Slovakia will comply with its convention and international treaty obligations so far as the operation of its prison system is concerned, as, indeed, other aspects of its institutional life; and, as I see it, the district judge was entitled to conclude that the evidence advanced by the appellant did not displace that being so with regard to her specific instance.[28]Turning, then, to the ground advanced under section 21, which, of course, brings in human rights considerations, and in particular in this case article 3, the arguments here to a considerable extent overlap. The district judge dealt with those fully and carefully, and he indicated that here too he was not satisfied that the appellant had shown that she would be subject to ill treatment or torture or degrading treatment within the ambit of article 3 and as explained by various authorities.[29]What had been alleged by the appellant was that she would, because of her ethnicity and perhaps also because of her sexual tendencies, receive inhumane treatment from prison guards, she would receive inhumane treatment from fellow prisoners and she would receive inhumane treatment from those connected with associates of her husband; and that the authorities were not in a position sufficiently to prevent that from happening.[30]In my view on this essentially factual aspect, the district judge reached a proper conclusion. Undoubtedly, the district judge approached the matter in legally a correct way and I conclude he was entitled to reject this ground as raised under section 21.[31]Some argument was raised in the court below by reference to article 8, dealing with the private and family life of the appellant as seemingly established in the United Kingdom and not least the fact that she has twins. Regrettably, however, it is often likely to be the case that females who are sentenced to custodial sentences do have to suffer the undoubted hardship that can arise thereby by being separated from their children, and children may suffer likewise in consequence. But that in itself is not a justification for interfering. Mr Keith, on behalf of the appellant, rightly did not seek to press that point further.[32]Looking at matters in the round, I can see no basis for interfering with the district judge's conclusion and this appeal is therefore dismissed.[33]MR KEITH: My Lord, might I have a detailed assessment for Legal Aid?

MR JUSTICE DAVIS: Yes, you may.

[35]MR KEITH: Thank you.

MR JUSTICE DAVIS: Any other matters? Thank you both very much for your assistance.

Cited in 1 later judgment