Sheriff refuses Lord Advocate’s application to extradite Slovakian man to serve sentence for ‘joy-riding’

A sheriff ruled that it would be “oppressive” to return him given the passage of time since he committed the “relatively minor” offence.

Pavol Mercia, 33, who has lived in Scotland since 2006, appeared before Sheriff Tom Welsh QC in Edinburgh Sheriff Court last month for a full extradition hearing on a European Arrest Warrant (EAW).

The court heard that he was wanted by the Slovak Republic to serve a sentence of eight months imprisonment for the offence of joy-riding in a car on a forest road in northern Slovakia, when he was 22 years old and disqualified from driving.

He was convicted in absentia in September 2009 of the offence which occurred in July 2004.

However, 11 years later – when he had a partner, a home, a job, a young family and a settled life in Scotland – the Lord Advocate sought a warrant on behalf of the Slovak Republic for his extradition to serve the eight-month sentence.

The court heard that the respondent, a citizen of the Slovak Republic, was born and brought up in Poprad at the foot of the Tatra Mountains in Slovakia.

In July 2004 he was spoken to by the local police about an incident of joy-riding in a local forest.

He said he thought he was charged and appeared in court in 2004, but he heard no more about the case until “out of the blue” the EAW was executed in Scotland in April this year and the requested state had failed to supply a relevant timeline or clarification about the passage of time.

The respondent was now living in Forfar with his Polish partner and her two children aged two and four.

The delivery driver was the “breadwinner” and had become a “father figure” for the children, supporting them and his partner, the court was told.

The sheriff was asked to decide: (1) whether the passage of time constituted a bar to his extradition, in terms of s14 of the Extradition Act 2003; (2) whether the precise terms of the EAW complied with s 20 of the 2003 Act, which protects the right to a fair trial of persons convicted in absentia and returned by the UK to a requesting country; and whether given the whole circumstances of this case, extradition would be compatible with the respondent’s right to a family life within the meaning of the Human Rights Act 1998.

He noted that respondent had continued to live openly in his home town for two years after the alleged offence before deciding to migrate within the EU and moved to Scotland, where he got a series of jobs, met a new partner and “settled down with a new young family”.

“Then, out of the blue, this EAW is served on him,” the sheriff said.

He described the absence of clarification from the authorities in Slovakia explaining what happened from the state’s perspective during the passage of time – “despite repeated official requests” from the authorities here – as “problematic”.

In a written judgment, Sheriff Welsh said: “Given the passage of times between the index event, the conviction, the issue of the EAW request and the proof, taken separately and together, against the background of the relatively minor nature of the offence as opposed to the very significant and material changes which have occurred in the respondent’s life, all of which, had the respondent been treated with ordinary promptitude by the requesting state, would not have come to pass before he was appropriately dealt with, then, in those circumstances I conclude it is, on balance, oppressive to return him now and I discharge the warrant on that ground.”

However, the sheriff added that he was not prepared to hold that the respondent should be discharged in terms of s20(7) for want of a fair trial guarantee should he have to be returned, nor that that extradition was incompatible with the respondent’s right to a family life in terms of article 8 of the European Convention on Human Rights.

Sheriff Welsh said: “Had the present case not involved a significant issue in terms of s14 which, in my view, is determinative, I would not have been persuaded, on a balance that the specific facts established here, involved such exceptional hardship, as to outweigh the clear public interest in allowing extradition. Typically, extradition and hardship go together, cheek by jowl. Therefore, case law indicates it will only be in exceptional circumstances that private right will trump the public interest in extradition.

“In the absence of a passage of time argument, I would conclude that any hardship caused, would be caused by the respondent going to prison, losing his job and thereby bringing straitened circumstances upon his family, none of which are exceptional, in the context of extradition. That hardship would not flow from a breach of his right to a family life as such, if he is legitimately imprisoned even 11 years after the index offence, for a relatively minor offence.

“Therefore, I would not be prepared to hold, independently of s14, that extradition is incompatible with the respondent’s Convention rights, in terms of s 21(2) of the 2003 Act and discharge him on the basis of a breach of his article 8 right to a family life, whether considered individually in his own right, or, if looked at, from the perspective of the article 8 rights of his de facto family.”