clr/1979/1979_1_277.pdf

(2)of the Extradition of Fugitive Offenders Law, l910"(Law 97/70)—Application for discharge on ground of trivial nature of said offences, on ground that accusations werenot made ingoodfaith or in the interests of justice and on ground that charges he isfacing in Cyprus have not been disposed of or withdrawn—Sections 10

(1)and (c) and !l

(2)(b) of the said Law—Fact that applicant was convicted and sentenced in his absence not sufficient to establish that he was charged in badfaith or in a manner which wasnot in the interests of justice—Prerequisites envisagedby said section 10

(3)(

1. a)and(
2. c)not existing—Not open to Court tofuul that extradition of applicant would, having regard toall circumstances, be unjust oroppressivefor any other reason—Becausethe finding that the extradition would amount to an unjust or oppressive measure must be related to one of the grounds set out in section 10

(3)(a)(b) and (c)— Nolle prosequi entered in relation to each charge applicant is facing in Cyprus—Such charge to be treated as having been withdrawn—Application dismissed. On March 19,1979,ihc applicant,a Greek subject, was detained at the Central Prisons, in Nicosia, by virtue of an order made by the District Court of Limassol, under section 9

(2)of the Extraditionof Fugitive Offenders Law. 1970(Law 97/70),in thecourse of 277 Leotsakosv.Minister ofJustice &Another

(1979)proceedings, under thesaid Law, for his extradition toGreece, wherehe isdue toservea sentenceofeighteen months'imprisonment,which hasbeen passed upon himforfraud, andasentence of five months' imprisonment which has been passed upon him for escaping from lawful custody. OnApril 13, 1979, he applied 5 for hisreleasefrom suchdetention,throughan application for an order of Habeas Corpus, under section 10* of the above Law. He relied on paragraphs (a) and (c) of subsection

(3)of section 10**,and has contended, respectively, that the offences ofwhich hehas beenconvicted areof a trivial nature and that the relevant 10 charges which were preferred against him in Greece amount to accusations whichwerenot madeingood faith or inthe interests ofjustice, and that, consequently, his extradition would, having regard to all the circumstances, be an unjust or oppressive measure. He, further, contended that his extradition is precluded 15 because of the provisions of paragraph (b) of subsection

(2)of """ section 11 of the said Law which reads as follows: "

(2)An order of extradition shall not be made, under this section, in the case of a person who isservinga sentence of imprisonment or detention, or ischarged with an offence in 20 the Republic, until(

1. a)(
2. b)in the case of a person charged with an offence, the charge is disposed of or withdrawn and, any sentence of imprisonment that may have been passed upon him has been served (not being a 25 suspended sentence) " Held, dismissing theapplication,

(1)that the offences, in respect of which the applicant has been sentenced, cannot be treated as being of a trivial nature in the sense of section 10

(3)(a) of Law * Quoted in full al pp 280-82post ** Section 10

(3)(

1. a)and (
2. c)icads as follows "

(3)On any sueh application the Supreme Court may, without prejudice lo any other jurisdiction of it, order the dr.cnarge from custody of the person unaer ctraciition, if it decides that(

1. a)by reason of the trivial nature of the offenc of which he is accused or was conucted, or (
2. b). .. (
3. c)because the accusation against him was not made in good faith or in the interests of justice, his extradition would be, having regard to all the ciicumstupces, an unjust or oppressive measure " 278 1 C.L.R. 5 10 15 20 25 30 Leotsakos v. Minister of Justice &Another 97/70; that it has not been established that the accusations, in respect of which the applicant has been convicted and sentenced, were not made against him in good faith or in the interests of justice; and that, in this'respect, it cannot be accepted that the fact that the applicant was convicted and sentenced in his absence is sufficient to establish that the applicant was charged in bad faith or in a manner which was not in the interests ofjustice, especially as there is nothing to show that he was convicted and sentenced in absentia in a manner which conflicted with the relevant provisions of Greek Law.

(2)That once the prerequisites envisaged by paragraphs (a) and (c)of subsection

(3)of section 10of Law97/70 have not been shown to exist it is not really open to this Court to find that the extradition of the applicant would, having regard to all the circumstances, be unjust or oppressive for any other reason, such as the fact that there are pending in Cyprus civil proceedings against him because, in view of the way in which section 10

(3)is drafted, it seems that, the finding that the extradition would amount to an unjust or oppressive measure must be related to . one of the grounds set out in the three paragraphs·—(a),(b) and (c)—of subsection

(3); and that, accordingly, the first contention of the applicant must fail.

(3)That in relation to each charge that the applicant was facing in Cyprus there has been entered a nolle prosequi; that, consequently, such charge may properly be treated as having • been withdrawn, in the sense that it is no longer pending against the applicant; that, thus, it cannot be held that the provisions of paragraph (b) of subsection

(2)of section 11 of Law 97/70 preclude, at present, the extradition of the applicant; and that, accordingly, the second contention of applicant must be dismissed. Application dismissed. 35 Cases referred to: R. v. Governor of Pentonville Prison, ex parte Teja [1971] 2 All E.R. 11 at pp. 22-23; Union of India v. Manohar Lai Narang and Another, Union of India v. On-.i Prakash Narang and Another [1977] 2 All E.R. 348 at pp. 361-362; Kakis v. Government of the Republic of Cyprus and Others [1978] 2 All E.R. 634. 279 Leotsakos v. Minister of Justice & Another

(1979)Application. Application for an order of Habeas Corpus directing the re­ lease of the applicant from the Central Prisons, Nicosia, where he is being detained by virtue of an order made by the District Court of Limassol, under section 9

(2)of the Extradition of Fugitive Offenders Law, 1970 (Law 97/70), in thecourse of proceed­ ings, under the said Law, for his extradition to Greece. E. Vrahimi, for the applicant. 5 V. Aristodemou, Counsel of the Republic, for the respond­ ents. Cttv. adv. vult. 10 TRIANTAFYLLIDES P. read the following judgment. By means of the present application the applicant seeks an order of Ha­ beas Corpus, which this Court is empowered to grant under Article 155.4 of the Constitution, as well as under section 10 of 15 the Extradition of Fugitive Offenders Law, 1970 (Law 97/70). The applicant, who is a Greek subject, is being detained at the Central Prisons, in Nicosia, by virtue of an order made by the District Court of Limassol, on March 29, 1979, under section 9

(2)of Law 97/70, in the course of proceedings, under the said 20 Law, for his extradition to Greece, where he is due to serve a sentence of eighteen months' imprisonment, which has been passed upon him for fraud, and a sentence of five months' im­ prisonment, which has been passed upon him for escaping from lawful custody. His detention is lawful, being envisaged, inter alia, by Article 11.2(f) of the Constitution. The applicant has, however, sought to secure, by means of the present proceedings, his release from such detention by relying on the provisions of section 10 of Law 97/70, which read as follows:- 25 30 10.-

(1)To Δικαστήριον, εν πάση περιπτώσει, καθ' ην ήθελε διατάϋει την κράτησιν τοϋ ύπό εκδοσιν προσώπου δυνάμει τοΰ άρθρου9, θέλει πληροφορήσει άματον ένδιαφερόμενον, sis κοινήν γλώσσαν, περί τοϋ δικαιώματος αυτούόπως ύποβάλη αϊτησινδιά habeas corpus προςτούτοιςδέαμελλητί 35 κοινοποίηση, την τοιαύτην άπόφασιν τω 'Υπουργώ.

(2)Πρόσωπον, ούτινος διετάχθη ή κράτησις δυνάμει τοϋ ώς εΐρηται άρθρου 9 δενδύναται δυνάμειτοΰ παρόντος Νόμου νά άποδοθη εις το Κράτος ή την χώραν, ήτις ήτήσατο τήν εκδοσιν αΰτοϋ 280 40 1 C.L.R. Leotsakos τ. Minister of Justice & Another TriantafyMdes P. (α) έν πάση περιπτώσει, μέχρις ού παρέλθη διάστημα δεκαπέντε ήμερων άπό της ημέρας, καθ' ήν εξεδόθη τό περί εκδόσεως διάταγμα* 5 10 (β) έν ή περιπτώσει ήθελευ ύποβληθη αίτησις διά habeas corpus έφ' όσον εκκρεμεί ή έ£έτασις της υπο­ βληθείσης αΐτήσεως.

(3)Τό Άνώτστον Δικαστήριον, έπιλαμβανόμενον της τοι­ αύτης αίτήσεως, δύναται, μή επηρεαζόμενης οΙασδήποτε ετέρας δικαιοδοσίας αυτού, υά διατά£η τήν άποφυλάκισιν τοΰ ύπό εκδοσιν προσώπου, έφ' όσον ήθελε κρίνει ότι (α) λόγω της ασήμαντου φύσεως τού αδικήματος, 8Γ 6 διώκεται ή κατεδικάσθη- ή 15 20 25 30 35 (β) λ ό γ ω της παρόδου μακρού χρόνου, άφ' οΰ έγένετο ή διάπρα£ιςτού αδικήματος, ή, αναλόγως της περιπτώσεως, άφ' ού καταζητείται προς εκτισιν ποινής μετά καταδίκην αυτού· ή ( γ ) λόγω τού ότι ή κατ' αυτού κατηγορία δέν έγένετο καλή τη πίστει ή έν τ φ συμφέροντι της δικαιοσύνης ή άπόδοσις αυτού θά άπετέλει, λαμβανομένων ύ π ' όψιν άπασώυ των • περιστάσεων, άδικον ή καταπιεστικον μέτρον.

(4)Τό Άνώτατον Δικαστ.ίριον, έπιλαμβανόμενον οιασδή­ ποτε τοιαύτης αιτήσεως, Βύι χται νά δεχθη συμπληρωματικά αποδεικτικά στοιχεία, σχετιι ά προς την άσκησιν της δικαιοδοσίας αυτού δυνάμει τού άρθρου 4 ή δυνάμει τοΰ εδαφίου

(3)τοΰ παρόντος άρθρου.

(5)Διά τους σκοπούς τού παρόντος άρθρου, ή διαδικασία δια τήν έΕέτασιν αιτήσεως υποβληθείσης διά τήν εκδοσιν habeas corpus λογίζεται εκκρεμούσα μέχρις ού έκδικασθή ή κατ' αυτής τυχόν ασκηθείσα έφεσις, ή παρέλθη άπρακτος ή προθεσμία, έν ή δύναται νά άσκηθη τοιαύτη εφεσις, ή, εφ' όσον απαιτείται άδεια διά την άσκησιν εφέσεως, ή προθεσμία έν ή δύναται νά αΐτηθη ή παροχή της τοιαύτης αδείας " ( " I O . - ( l ) The Court in every case where a person to be extradited is committed to custody under section 9, shall inform immediately such person, in ordinary language, of his right t o make an application for habeas corpus and 281 Triantafyllldes P. Leotsakos v. Minister of Justice & Another

(1979)moreover shall forthwith communicate its relevant decision to the Minister.

(2)A person committed to custody under the said section 9 cannot be extradited under this Law to the State or Country which has requested his extradition- 5 (

1. a)in any case, until the expiration of a period of fifteen days beginning with the day on which the order for his extradition was made; (
2. b)if an application for habeas corpus is made, so long as proceedings on that application are pending. 10

(3)On any such application the Supreme Court may, without prejudice to any other jurisdiction of it, order the discharge from custody of the person under extradition, if it decides that- 15 (

1. a)by reason of the trivial nature of the offence of which he is accused or was convicted; or (
2. b)by reason of the passage of long time since the commission of the offence, or, as the case may be, since he has become a wanted person in order to 20 serve his sentence after having been convicted; or (
3. c)because the accusation against him was not made in good faith or in the interests of justice, his extradition would be, having regard to all the circumstances, an unjust or oppressive measure. 25

(4)On any such application the Supreme Court may receive additional evidence relevant to the exercise of its jurisdiction under section 4 or under subsection

(3)of this section.

(5)For the purposes of this section the proceedings in an 30 application for habeas corpus shall be treated as pending until any appeal in those proceedings isdisposed of or until the expiration of the time within which such an appeal may be brought, or, when leave to appeal isrequired, of the time within which such leave may be applied for"). 35 Counsel for the applicant has relied, in particular, on para282 1 CL.R. Leotsakos v. Minister of Justice & Another Triantafyllides P. graphs(a)and (c)ofsubsection

(3)ofsection 10,above,and has contended, respectively, that the offences of which the applicant has been convicted are of a trivial nature and that the relevant charges which were preferred against him in Greece amount to 5 accusationswhichwerenotmadeingoodfaith orintheinterests ofjustice, and that, consequently, hisextradition would, having regard to all thecircumstances,be an unjust or oppressivemeasure. Law 97/70 appears to be modelled, to a considerable extent, 10 on the Fugitive Offenders Act, 1967,in England (see Halsbury's Statutes of England, 3rd ed., vol. 13,p. 286) and was enacted soon after there had been ratified the European Convention on Extradition, by means of the European Convention on Extradition (Ratification) Law, 1970 (Law 95/70). 15 I cannot agree that the aforementioned offences, in respect of which the applicant has been sentenced, as was already stated, to terms of imprisonment of eighteen and five months, respectively, can betreated as beingof a trivial nature in the senseof section 10

(3)(a) of Law 97/70. 20 Nor can I agree that it has been established that the accusations, in respect of which the applicant has been convicted and sentenced, were not made against him in good faith or in the interests ofjustice; and, in this respect, Icannot accept that the fact that the applicant was comicted and sentenced in his ab25 sence is sufficient to establish th..t the applicant was charged in bad faith orinamanner whichwasnot intheinterestsofjustice, especially as there isnothing to show that hewasconvicted and sentenced in absentia in a manner which conflicted with the relevant provisions of Greek Law. 30 Once the prerequisites envisaged by paragraphs (a)and (c)of subsection

(3)of section 10of Law 97/70 have not been shown to existit isnot really open tometo find that the extradition of the applicant would, having regard to all the circumstances, be unjust or oppressive for any other reason, such as the fact that 35 there are pending in Cyprus civil proceedings against him; because, in view of the way in which section 10

(3)is drafted, it seems that thefindingthat the extradition would amount to an unjust or oppressive measure must be related to one of the grounds set out in the three paragraphs—(a), (b) and (c)—of 40 sub-section

(3). 283 Triantafyllides P. Leotsakos v. Minister of Justice & Another

(1979)In this respect, it isto be noted that section 10

(3)of Law 97/70 corresponds closely to section 8

(3)of the Fugitive Offenders Act, 1967, in England, and in R. v. Governor of Pentonvilte Prison, ex parte Teja, [1971] 2 All E.R. 11, Lord Parker C.J. said (at pp. 22-23) the following:" Finally one comes to s.8

(3). That provides: * On any such application the High Court or High Court of Justiciary may, without prejudice to any other jurisdiction of the Court, order the person committed to be discharged from custody if it appears to 10 the Court that—(

1. a)by reason of the trivial nature of the offence of which he is accused or was convicted; or(b)byreason ofthepassage of time sinceheisalleged to have committed it or to have become unlawfully at large, as the case may be; or(
2. c)because the accusation 15 against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.* The only ground on which it is suggested that this Court should act is by reason of the passage of time since the ap- 20 plicant is alleged to have committed the offences. What counsel for the applicant says is that, although the ground for discharging the applicant must be by reason of the passage of time, yet in deciding whether it would be unjust or oppressive to return him on that ground, onemust 25 consider all the circumstances; and the circumstances which he prays in aid here are not only the proceedings and decision of the Supreme Court in Costa Rica, but also the fact of this continuous adverse comment by Ministers and press alike of the applicant's conduct from 1966 right up to date. 30 He says that there is a real danger that, in the light of the publicity given, even, one would think, publicity which would amount in this country to contempt of Court, he will not h.ive or may not have a fair trial, and, accordingly, that that isa circumstance which this Court should take into 35 consideration in saying whether by reason of the passage of time it would be unjust or oppressive to return him. 1 would only add that, as it seems to me, the wording of 284 5 1 C.LJ*. 5 Leotsakos τ. Minister of Justice & Another Triantafyllides P. s. 8

(3)is very much narrower in its ambit than s. 10 of the Fugitive Offenders Act 1881, and I very much doubt that one is entitled to take into consideration as part of the cir­ cumstances anything which does not flow from or is unconnected with the passage of time. At the end of the day, having considered all the circumstances, it is only when by reason of the passage of time that it is thought unjust or oppressive to return the applicant". In Unionof India v. Manohar Lai Narang and another, Union 10 of India v. Omi Prakash Narang and another, [1977] 2 All E.R. 348, Viscount Dilhorne said-(at pp. 361—362):— 15 20 25 30 35 " Whether the application to the Court under s. 8

(3)be on the ground of the triviality of the offence or of the passage of time or of mala fides, theCourtis required to have regard to all the circumstances. In my opinion this can only mean' circumstances relevant to the particular ground or grounds on which the application for release is based. Where that is sought by reason of the trivial nature of the offence, only circumstances relevant to the nature of the offence are to be regarded;· for to order a person's release on that ground it must appear to the Court that it would be unjust or oppres­ sive to return him by reason of the trivial nature of the offence and not for any other reason. Where the applica­ tion is, as it was in this case, on the ground that it was unjust or oppressive to return him by reason of the passage of time, I agree with Siynn J.that the circumstances to which regard may be had must be relevant to the question whether or not it would be unjust or oppressive to return a person because of the passage of time. (See also per Lord Parker C.J. in R. ν Governorof PentonvillePrison, ex parte Tcja^). It was argued for the applicants that the trivial nature of the offence, the passage of lime and mala fides were 'gate­ ways' and once through a gateway, the Court, after having regard to all the circumstances, could order the discharge of a fugitive if any circumstances existed which would render his return unjust or oppressive. In my opinion the lan­ guage of s. 8

(3)does not permit of any such interpretation. It docs not say that where the offence is trivial, where there 1 11971] 2 AH E.R. l i at 23. 285 Triantafyllides P. Leotsakos τ. Minister of Justice & Another

(1979)has been passage of time and where there has been lack of good faith, the Court can order the discharge if it appears that there are any grounds for concluding that his return would be unjust or oppressive. It can only do so by reason of triviality, passageof time or bad faith. If this contention is right, then the omission of the words 'or otherwise' has little significance and the power of the Court remains si­ milar to that it had under the 1881 Act, despite the change of wording. I do not think this contention well founded and I reject i t " 5 10 The Teja and Narang cases, supra, were referred to by the House of Lords in England in the later case of Kakis v.Govern­ ment of the Republic of Cyprusand others,[1978] 2 All E.R. 634. Counsel for the applicant has argued, also, that the extradition of her client is precluded because of the provis ons of paragraph 15 (b) of subsection

(2)of section 11 of Law 97/70, which reads as follows:("ii.-(i)

(2)Καθ' όσον άφορα εις πρόσωπον, όπερ εκτίει ποινήν φυλακίσεως ή κρατήσεως ή διώκεται δι3 αδίκημα τι έν τη Δημοκρατία, δέν δύναται νά έκδοθη,δυνάμει τοΰ παρόντος 20 άρθρου, διάταγμα εκδόσεως, μέχρις οΰ - ιι.-(ΐ) (α) - - - - (β) έν δέ τη περιπτώσει προσώπουδιωκομένουδι' αδί­ κημα τι, έκδικασθηή άποσυρθήή κατ* αύτοϋ προσαφθεϊσα κατηγορίακαι εκτίση τήν τυχόν έπιβληθεΐσαν αΰτω ποινήν φυλακίσεως (ουχί έπ' άναστο- 25 λη)" ("

(2)/ norder of extradition shall notbe made,underthis section, i, the case of a person who is serving a sentence of imprisonn.e;nt or detention,or is charged with an offence in the Repubi.c, until(

1. a)(
2. b)in the case of a person charged with an offence, the charge is disposed of or withdrawn and, any sen286 30 1 CX.R. Leotsakos v. Minister of Justice & Another TriantafjHides P. tence of imprisonment that may have been passed upon him has been served (not being a suspended sentence)." It is to be notedthatthis section corresponds to subsection

(2)5 of section 9 of the Fugitive Offenders Act, 1967. I donotfindthatthereisanymeritinthis contentionofcoun­ sel for the applicant, because it is common ground that in rela­ tion toeachcharge thattheapplicantwas facing inCyprus there has been entered a nolle prosequi and,consequently,such charge 10 may properly be treated as having been withdrawn, in the sense that it is no longer pending against the applicant; thus, it cannotbe held thattheprovisions of paragraph (b)of subsection

(2)of section 11 of Law 97/70preclude, at present, the extradi­ tion of the applicant. 15 20 Inthe light of all the foregoing considerations 1have decided thatthisapplication for an order of Habeas Corpusfails andhas tobedismissedaccordingly; but inviewof the natureof thepro­ ceedings for Habeas CorpusIamnotprepared tomakeanorder for costs against the applicant. Applicationdismissed. No order as ίο costs. 287