Anolica Dumitrache v Office of the Prosecutor of the Republic Attached to the Court of Pordenone, Italy
| Jurisdiction | England & Wales |
| Judge | Cheema-Grubb J DBE,Lady Justice Carr DBE |
| Judgment Date | 23 April 2021 |
| Neutral Citation | [2021] EWHC 958 (Admin) |
| Date | 23 April 2021 |
| Docket Number | Case No: CO/329/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 958 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Carr DBE
and
Mrs Justice Cheema-Grubb DBE
Case No: CO/329/2020
Benjamin Seifert (instructed by Lansbury Worthington Solicitors) for the Appellant
David Perry QC and Catherine Brown (instructed by the Extradition Unit, Crown Prosecution Service) for the Respondent
Hearing date: 25 March 2021
Approved Judgment
Introduction
The Appellant, Anolica Dumitrache, is a 30 year old Romanian citizen. His extradition is sought by the Respondent public prosecutor from the United Kingdom to Italy pursuant to two conviction European Arrest Warrants (“the EAWs”) arising out of various criminal offences committed by the Appellant in Italy, a Part 1 territory for the purpose of the Extradition Act 2003 (“the 2003 Act”).
The Appellant was arrested on both EAWs on 21 May 2019. Following a final hearing on 12 November 2019, on 20 January 2020 District Judge Goldspring (“the District Judge”) ordered his extradition to Italy pursuant to s. 21(3) of the 2003 Act. This is his appeal pursuant to s. 26 of the 2003 Act against that order.
Following the grant of leave to appeal by Spencer J on 15 July 2020, two grounds of appeal are before the court:
i) In relation to s. 20 of the 2003 Act (“s. 20”): the District Judge erred a) in finding to the criminal standard that the Appellant was present at the trial resulting in the decision the subject of the second EAW (“EAW 2”) and b) in finding that the Appellant would be entitled to a retrial in the event that he was not deliberately absent from his trial on the offences the subject of EAW 2;
ii) In relation to s. 21 of the 2003 Act (“s. 21”): the District Judge erred in finding that surrender of the Appellant would not constitute a violation of Article 8 of the European Convention on Human Rights (“Article 8”).
The Appellant also contends that he has been granted permission to challenge the District Judge's findings in relation to the first EAW (“EAW 1”) on the same grounds (albeit by reference to different facts).
The appeal is resisted in full. It is said that the District Judge reached the correct conclusion, principally for the reasons that he gave. There is also an (unopposed) application by the Respondent to adduce fresh evidence in respect of further information provided by the Italian authorities dated 11 March 2021.
Given the date of the Appellant's arrest (before 31 December 2020), the issues fall to be decided by reference to the law applicable before the end of the transition period governing the United Kingdom's departure from the European Union.
This constitution also heard the appeal in Domi v The Public Prosecutor's Office, Court of Udine (an Italian Judicial Authority) [2021] EWHC 923 (Admin) (“ Domi”), a case which likewise turned on the correct application of ss. 20 and 21 in the context of conviction European Arrest Warrants seeking surrender of an individual appellant to Italy. Whilst the issues raised on each appeal are not identical, they are set against the same general contextual background, and the appeals were heard on consecutive days. Mr Perry QC and Ms Brown appeared for the Respondent on each appeal. Different counsel represented the Appellants: Mr Hickman QC and Mr Grandison for Mr Domi, and Mr Seifert for the Appellant, but these counsel collaborated (and were instructed by the same solicitors).
The Facts
The Appellant was born in Targu Jiu, Romania, on 22 June 1990.
The circumstances in which he came to be in Italy have not been revealed. But on 26 September 2012 he and another purchased an Audi A4 vehicle that had been stolen on 23 September 2012 (“the EAW 1 offence”).
His trial in relation to the EAW 1 offence took place on 12 November 2014 before the Asti court. According to EAW 1, the Appellant did not appear in person but he was represented by a court-appointed defence lawyer. He was convicted and sentenced to a suspended custodial term of one year and four months, and fined €600. The judgment became irrevocable on 2 March 2015.
The offences the subject of EAW 2 are said to have been committed by the Appellant on 24 October 2015 (“the EAW 2 offences”). The Appellant burgled a company plant in Pravisdomini and stole 102 pallets of wood with a value of €4,000. He also attempted to steal a further 60 pallets, but was prevented from doing so by the intervention of the police. He was found to be in possession of a 40cm long metal crowbar and a counterfeit testing certificate.
He was arrested the next day. Following a hearing on 26 October 2015 he was remanded in custody. At a hearing on 4 November 2015 attended by the appellant in person, the defence requested the judge to proceed on the basis of an abbreviated trial ( rito abbreviato) pursuant to which, if convicted, a defendant is entitled to a one-third reduction in sentence.
That hearing took place on 9 November 2015. The Appellant (and his co-defendant) were in prison at this stage and indicated that they did not want to participate. The Appellant was represented. He was convicted. There is a debate, explored below, as to what happened beyond conviction at this hearing.
On 10 (or 11) November 2015 the Appellant was released from custody subject to a prohibition order preventing him from being in “the territory of the Court of Pordenone”. Upon his release, the Appellant nominated Avv. Luciano Rizzo, a lawyer practising in Pordenone, as his domicile.
The judgment of 9 November 2015 became irrevocable on 5 January 2016 and on 18 January 2016 an imprisonment order was issued for the Appellant to serve a term of 11 months and 12 days' imprisonment.
The Appellant returned to Romania shortly after his release. He says that he then met his partner. They had a son, born on 12 May 2017.
In May 2018 police discovered the Appellant to be living in Romania.
At some point later in 2018, the Appellant came to the United Kingdom “for a better life”, followed shortly by his partner and son. He and his partner now work in Kent for the same company, he as a fork lift truck driver and she as a packer. He pays the rent and household bills. Were he to be extradited, he says that his partner and son would not manage financially. His partner would have to give up her job to care for her son.
He must have arrived in this country by 2 November 2018, because on that date he stole from a motor vehicle in Kent, for which he received a police caution the next day.
On 19 February 2019 an order of aggregation of the Appellant's sentences was issued in Italy: namely a total sentence of two years, three months and 12 days' imprisonment (together with a fine of €1,000) for the purpose of both EAWs (“the aggregation order”). As set out above, the Appellant was arrested in this country on 21 May 2019.
The EAWs
EAW 1
EAW 1 relates to the offence of handling stolen goods on 26 September 2012.
Box B indicates that the decision on which the EAW is based is an enforceable judgment of the Asti Court of 12 November 2014 which became irrevocable on 2 March 2015.
Box C indicates that a custodial term of one year and four months was imposed, together with a fine of €600. After the aggregation order, two years, three months and 12 days remain to be served and the total fine was €1,000.
Box D states that the Appellant:
“[1. Yes, the person appeared in person in custody at the trial re…was present in that he was incarcerated for these facts (he was arrested flagrante delicto and released on 11 November 2015). Defence counsel appointed by the Court 1.]
2. No, the person did not appear in person at the trial resulting in the decision. The sentenced person was not present and had a court-appointed counsel. He had been stopped immediately after the facts and submitted to police identity card.” (original emphasis in bold)
Box E indicates that the EAW 1 offence took place before and until 26 September 2012 and sets out the details of the offending.
The Framework List was not ticked.
Pursuant to a request for further information, the following further information was provided: the trial took place in the absence of the Appellant, who was represented by a court-appointed defence lawyer upon whom documents were served. He had not been arrested. The sentence imposed was originally suspended but then activated as a result of the conviction on the EAW 2 offences.
EAW 2
EAW 2 relates to the offences committed on 24 October 2015 of aggravated burglary, attempted theft, use of a false document and unjustified possession of a metal crowbar.
Box B indicates that the decision on which the EAW is based is an enforceable judgment of the Court of Pordenone of 9 November 2015 which became irrevocable on 19 February 2016.
Box C indicates that a custodial term of one year was imposed, together with a fine of €400. After the aggregation order, two years, three months and 12 days remain to be served and the total fine was €1,000.
Box D stated:
“1. Yes, the person appeared in person at the trial resulting in the decision. The [Appellant] was present in that he was incarcerated for these facts (he was arrested flagrante delicto and released on 11 November 2015). Defence counsel appointed by the Court.”
Box E indicates that the EAW 2 offences took place on 24 October...
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