Kalejs v Republic of Latvia

Federal Court of Australia|2001-06-06|Before: Kenny J

REASONS FOR JUDGMENT 1 On 29 May 2001, the second respondent, a magistrate acting pursuant to s 19 of the Extradition Act 1988 (Cth) ("the Act"), determined that the applicant, Konrads Alfreds Kalejs, was eligible for surrender in relation to extradition offences for which surrender is sought by the first respondent, the Republic of Latvia. An order was made pursuant to s 19(9) of the Act that the applicant be committed to prison to await surrender under a surrender warrant. 2 On 29 May 2001, the applicant filed an application pursuant to s 21(1)(a) of the Act for a review of the second respondent's order. By way of interlocutory relief, the applicant sought an order releasing him on bail pursuant to s 21(6)(f)(vi) of the Act. The application was supported by an affidavit sworn by the applicant's solicitor, Mr Gerard Lethbridge. I heard the application for bail the same day. After hearing submissions on behalf of the applicant and the first respondent, I ordered that the applicant be released on bail until the review had been heard and determined on his own undertaking on the following conditions: (1) that he reside permanently at the Latvian Retirement Village, Fraser Crescent, Wantirna, Victoria; (2) that he notify the Melbourne Office of the Commonwealth Director of Public Prosecutions, in writing, within 24 hours of any proposed change of address; (3) that he surrender all passports and other travel documents held by him (or held on his behalf), whether in his own name or any other name, to the Officer in Charge, Australian Federal Police, 383 LaTrobe Street, Melbourne, Victoria; (4) that he not apply for a passport or any other travel document; and (5) that he not attend at any airport or any other point of international departure. 3 When I made my orders, I indicated that I would deliver reasons for judgment at a later date. These reasons follow.

the parties' respective positions 13 The applicant submitted that the following factors amounted to special circumstances justifying his release on bail: (a) his poor health; (b) his need for regular medical treatment and nursing care; (c) his advanced years; (d) the unexplained and very lengthy delay in making the extradition request; (e) the fact that he is an Australian citizen; (f) the fact that Latvia will not extradite its citizens to Australia, and it is exceptional to extradite Australian citizens to such countries; (g) the strength of the grounds for review; (h) his lack of any prior convictions; (i) the nature of the conduct in fact alleged, which, although described as "war crimes" and "genocide" by Latvia, does not involve: · Mr Kalejs's presence at any death camp or extermination camp, but rather as external guard at the Salaspils Police and Labor Education Camp (into which camp it is not alleged he ever entered); · any personal violence on the part of Mr Kalejs or in his presence; · any planning, organisation or imposition by Mr Kalejs of the conditions within Salaspils. 14 In connection with pars (a) and (b) above, Mr Lethbridge deposed: Mr Kalejs suffers from blindness, hearing deficiency, prostate cancer, and dementia. He is not able to stand with steadiness or walk for more than a few steps unaided. The Applicant is in need of regular medical treatment and nursing care. Medical reports concerning the applicant and bearing dates between 8 February 2001 and 15 May 2001 were exhibited to Mr Lethbridge's affidavit, including reports from a treating general practitioner, a consulting neuropsychologist, a consultant physician in geriatric medicine, a consultant psychiatrist and psychogeriatrician, and an ophthalmologist. 15 The first respondent accepted that the applicant is eighty-seven years of age and an Australian citizen. It accepted that at all relevant times the applicant had complied with the conditions of bail imposed upon him in December 2000. The first respondent further accepted that "the medical reports relied upon by [the applicant] state that [he] appears to be unwell", although it observed that the offences for which extradition is sought were serious. The first respondent did not dispute that the court had jurisdiction to grant the application for bail and did not oppose the grant of bail on the conditions that the court subsequently imposed. The applicant did not object to these conditions.

reasons for grant of bail 16 Plainly enough, some of the factors relied on by the applicant are contentious, and I am in no position at this stage of the proceeding to form a view about them. These were factors (d), (f), (g), and (i) in the applicant's list of factors set out above. I granted bail because of the applicant's advanced age and the evidence concerning his medical condition, and because there seemed to me little risk that the applicant would abscond if he were granted bail. As already noted, in Timar v Republic of Hungary [1999] FCA 1559, the Full Court accepted that a bail applicant's medical condition may constitute "special circumstances" justifying release on bail in upholding Weinberg J's decision ([1999] FCA 691) to the same effect. 17 In this case, the applicant's medical condition was well documented in the medical reports to which I have already referred. In a letter dated 15 May 2001, the applicant's treating general practitioner stated that the applicant: suffers from prostate cancer, blindness, increasing dementia and marked frailty of age. … [W]ith his rapid decline mentally his insight into the proceedings approaches zero … . In a report of 18 March 2001, a consulting neuropsychologist stated: The pattern of performances revealed by Mr. Kalejs … indicates a man of 87 years and 8 months who presents at this point in time as having some self - and carer - reported deterioration in his cognitive function over the last few years. He is a man of low average to average pre-morbid intelligence who performs at this level consistently in the present on tests of well-learned functions but in a significantly impoverished way on tests of working memory which is significantly lower than would be expected on the basis of his pre-morbid level of functioning. His performance on tests of memory functions indicates a diminution of his performance in comparison to estimates of his premorbid levels of functioning on most aspects of audio-verbal learning after delay and in terms of his recognition memory. He has evidence of compromise in his ability to be able to complete automatic sequences, and as well as this, a mild compromise in confrontational naming and significant impoverishment of his verbal fluency performances. All of these performances taken together seem to indicate that Mr. Kalejs is performing at less than the level that would be expected for a man of his age in comparison to the normative standard and are consistent with the notion of a dementing condition of a mild to moderate degree. The neuropsychologist added: I would anticipate that due to Mr. Kalejs' problems with memory and working memory functions, his difficulty in language comprehension and his problems with automatic sequences that he would have quite some difficulty in understanding complex processes associated with his legal situation. He would require comprehensive reminding of what had taken place before and would require constant updating on information that was going on, on a second by second basis. In a report dated 28 March 2001, a consultant physician in geriatric medicine said: Mr. Kalejs has significant cognitive impairment involving both his memory and speed of thinking as well as significant impairment in his higher level functions such as abstraction, planning, reasoning and mental flexibility. … [I]t is clear that he has a dementing illness. A consultant psychiatrist and psychogeriatrician stated, in a report dated 10 April 2001: In summary then we have a gentleman with a moderate degree of dementia most likely multi infarct in type that is progressive in degree and nature. He is appropriately placed in a nursing home where he requires full care and supervision with his [activities of daily living]. In a report dated 8 February 2001, an ophthalmologist confirmed that the applicant has "a combination of advanced (end stage) chronic glaucoma and atrophic age related macular degeneration", and that he was unable to read. 18 The applicant's advanced age and his medical condition led me to conclude that there were in this case "special circumstances" shown for the purpose of s 21(6)(f)(iv) of the Act. Further, having regard to his age, his medical condition, and the fact that he has complied with bail conditions since 13 December 2000, I was satisfied that there is little risk that the applicant would abscond if I granted bail upon the conditions nominated by the second respondent and accepted by the applicant. 19 Accordingly, I determined to order the release of the applicant on bail on his own undertaking upon the conditions to which I have referred. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Counsel for the Applicant: Mr B E Walters with Mr A Palmer

Counsel for the First Respondent: Ms M M Gordon

Solicitor for the First Respondent: Director of Public Prosecutions

Counsel for the Second Respondent: No appearance

Solicitor for the Second Respondent: No appearance

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