Court dismisses extradition application due to lack of evidence proving the offence is an extradition crime.

[*23] 1978 September

(NIKITAS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of an application for the

extradition of Maurice Engels,

(Extradition Application No. 1/78).

Fugitive offenders - Extradition - Powers of the Court - Procedure - Section 9 of the Extradition of Fugitive Offenders Law, 1970 (Law 97/70) - No evidence adduced by Police to enable Court perform its task - Essential element for deciding whether offence an extradition crime lacking - Respondent discharged - European Convention on Extradition (Ratification) Law, 1970 (Law 95/70).

Chief Inspector Haviaras, for the Police.

A. Markides, for the Respondent.

RULING

The following ruling was delivered by: -

NIKITAS, D.J.: This is an application [*24] for the extradition of the respondent Maurice Engels of U.K. nationality who was arrested in Cyprus on a warrant of arrest issued by a judge of this Court.

The extradition has been requested by the Greek Government on the ground that the respondent is accused of offences involving the importation and sale of a narcotic drug in Greece contrary to the provisions of the Greek Penal Code. The offences are alleged to have been committed in 1971 within the jurisdiction of the Greek courts.

The application is made under the European Convention on Extradition which was ratified by Law 95/70 passed by the House of Representatives on December 23, 1970 and thus became part of our domestic law. The Convention was signed by Greece and ratified by Cyprus subject to a number of declarations which, however, have/ no bearing on the outcome of these proceedings.

The following evidence was introduced by the Police in support of the application, for extradition:-

(a) Copy of a warrant of arrest which had been issued against the respondent on 27.11.72 by a judicial officer in Athens (Ext. 2).

(b) Evidence establishing the identity of the respondent i.e. photographs and finger prints (Ext. 4).

(c) The request of the Greek Government to the Embassy of the Republic of Athens (Ext. 5) and lastly [*25]

(d) A statement by the Greek Judicial Authorities setting out the offence for which extradition is requested and the relevant provisions of Greek Law, Reference is also made to the time and place of the commission of the alleged offences (ext. 3).

After the close of the case for the Police, counsel for the respondent raised the question of the, sufficiency of the evidence in question and either side addressed the Court.

There is no time to refer in extenso to the arguments put forward but in a nutshell the submission of counsel for respondent is that the provisions of s.9 of Law 97/70 which regulate committal proceedings are applicable and that since the kind of evidence envisaged by s.

13 of that Law has not been tendered, no prima facie case was made out within the meaning of s. 74 of Cap.155.

It was submitted on behalf of the Police that the matter is governed by s. 12 of Law 95/70 and that the documents produced in evidence comply with the requirements laid down in that section. It was further submitted that the application is made under Law 95/70 and consequently the relevant procedural provisions of the Extradition of Fugitive Offenders Law 97/70 should be disregarded because they are applicable only in cases of person accused or convicted of extradition offences committed in a designated Commonwealth country or a Treaty State.

The material provision in Law 95/70 which regulates extradition procedure is s. 22. [*26]

It reads as follows:-

"Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party".

It follows, therefore, that the procedure prescribed in Law 95/70 prevails over any other contrary provision in the other enactment. Accordingly the question is whether s. 12, Law 95/70, on its true construction, was intended to regulate procedure in a Court of Law of the requested country.

Section 12 says:-

"1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.”

"2. The request shall be supported by:

"(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;”

"(b) a statement of the offences for which extradition

is requested. The time and place of their commission, their legal [*27] descriptions and a reference to the relevant

legal provisions shall be set out as accurately as possible; and”

"(c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality."

In my judgment it is clear that s. 12 enumerates the steps to be taken by the requesting State for setting in motion the extradition process and nothing more. If the view I have taken is correct, then, by virtue of s. 22 of Law 95/70 the provisions of our domestic law on the matter i. e. Law 97/70 come into play and must be applied. On receipt of a request duly supported by the documents referred to in s. 12, the Minister of Justice may issue an authority to proceed, as indeed was done in the present proceedings under Law 97/70 (See Ext. 2).

I am of the opinion that s. 9 of Law 97/70 regulates committal proceedings in the present circumstances. Section 9 of law 97/70 sets out in detail the powers of the Court.

The judge before whom the person arrested is brought has the same jurisdiction and powers as the judge holding a preliminary inquiry.

It will be remembered that under s.

94 of the [*28] Criminal Procedure, Cap, 155, the committing judge decides whether the evidence, on the face of it, raises a probable presumption of guilt.

By virtue of s. 9(5) of Law 97/70 when an order to proceed has been issued in respect of a person accused of an offence and the Court is satisfied, after hearing the evidence tendered by both sides

" ... that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the Court,"

the Court shall commit him to prison to await his return. If the Court is not so satisfied it must discharge such person from custody.

The Police have not introduced any evidence at all either oral or in the form of depositions to enable the Court to perform its task. In the absence of any such evidence there is no case to answer and the respondent must be discharged.

If I were to uphold the submission of the Police, extradition would have been a purely administrative matter without the necessity of resorting to a Court of Law at all. I believe that such an interpretation would have been contrary to the letter and the spirit of Law 95/70 and in particular s. 22 thereof.

One of the arguments put forward by Chief Inspector Haviaras is that in case the Court rules that the evidence is insufficient then, an. adjournment should be granted under s. 13 of Law 95/70 to enable the Police [*29] to present additional evidence.

Section 13 provides:-

"If the information communicated by the requesting Party is found to be insufficient to allow the requested Party to make a decision in pursuance of this Convention, the latter Party shall request the necessary supplementary information and may fix a time-limit for the receipt thereof".

In my view s. 13 has no application to the proceedings before the Court of the requested country. It only gives a right to the requested country to require more material before it initiates extradition proceedings.

Before concluding this ruling I may perhaps refer to another point. The definition of an extradition crime under Law 95/70 is to be found in s. 2(1) which provides:-

"Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months".

Under Cyprus Law i.e. the Narcotic Drugs Law, [*30] the offences for which the respondent is accused, if committed in Cyprus would be punishable by imprisonment exceeding by far the limit set out in section 2(1). Exhibit 3 though stating that under Greek law the offences are regarded as felonies and are punishable by imprisonment makes no mention of the length of imprisonment. Thus an essential element for deciding whether the offences are extradition crimes is lacking.

In the result the respondent is discharged from custody.

Order accordingly.

Application dismissed.

Respondent discharged.