Eduart Dushaj v General Prosecutors at the Appeal Court Genoa, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 11 July 2017 |
| Neutral Citation | [2017] EWHC 1892 (Admin) |
| Docket Number | CO/603/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 July 2017 |
[2017] EWHC 1892 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Garnham
CO/603/2017
Mr Peter Caldwell (instructed by Abbey Solicitors) appeared on behalf of the Appellant
Mr D Sternberg (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
Introduction
Mr Eduart Dushaj appeals, with the permission of Collins J, against the decision of District Judge Rose made on 2 February 2017 to order his extradition to Italy. Extradition is sought pursuant to a conviction European Arrest Warrant issued by the General Protectors Office at the Appeal Court in Genoa, Italy on 12 March 2015. The warrant relates to three offences committed during the year 2000 described as:
"Facilitating the entry of the named person into Italy illegally, procuring and exploiting that person for the purposes of prostitution in June 2000 and causing them to be held in conditions of slavery through those actions."
A sentence of 13 years' imprisonment was imposed, of which 12 years, five months and 28 days remains to be served.
Mr Peter Caldwell, counsel for the appellant, advances two grounds of appeal. First, he contends that the District Judge erred in concluding, pursuant to section 20 of the Extradition Act 2003, that the appellant was deliberately absent at the time of his trial. Second, he contends that the District Judge erred in concluding, pursuant to section 21, that the extradition would amount to proportionate interference with his rights under Article 8 of the ECHR.
The appeal is resisted by the requesting authority for whom Mr Daniel Sternberg appears. I am grateful to both counsel for their clear and economically expressed arguments.
The history
The history of this case is conveniently summarised in the respondent's skeleton argument.
The appellant was arrested on the EAW on 21 October 2016 in West Yorkshire. On 22 October 2016 an initial hearing took place before District Judge Snow. No issue was taken regarding his being served with a copy of the EAW or his prompt production or identity. He did not consent to his extradition. The extradition hearing was opened on that day and directions were set. The appellant was remanded on conditional bail.
District Judge Rose heard the requested person's case on 16 November 2016 and reserved judgment. He then made a request to the Italian authorities for further information and adjourned the extradition hearing until 2 February 2017. On that day the judge heard final submissions and considered the further information from the Italian authorities. The judge then gave a written judgment rejecting each argument raised by the requested person and ordering his extradition.
The EAW was issued on 12 March 2015. Box B contains details of the Italian judgment; Box C records the sentence and the sentence remaining to be served; Box D records that the requested person was not present at the trial that resulted in the decision. It is noted that the requested person was held in pre-trial custody from 20 June to 21 December 2000. He was questioned twice by the prosecutor and the pre-trial investigation judge. Each time he was informed of the charges against him and the evidence against him. After questioning, the pre-trial investigation judge confirmed his arrest and ordered that he be remanded in custody. Subsequently, the court granted him bail on conditions requiring him to report to the police. He was notified of his obligation to report. He did not report, but instead absconded.
As I have said, further information was provided by the Italian authorities. That happened on two occasions. First, by way of a document dated 20 January 2015 relating to an earlier version of the EAW and, second, by way of a document dated 2 February 2017. That document was sent in response to District Judge Rose's request for further information in November 2016. The author of that document confirms the appellant's knowledge of the criminal proceedings against him.
The statutory provisions
The critical statutory provision in this appeal is section 20 of the Extradition Act 2003. It provides as is material:
" Case where person has been convicted
(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
…
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
The Grounds of Challenge
Ground 1 — Section 20
In his perfected grounds of appeal Mr Caldwell advances as his first ground of appeal the argument that the District Judge erred in his application of section 20. He says it was not disputed that the appellant was convicted in his absence and that in those circumstances the court was required to consider whether the appellant was deliberately absent from his trial. Mr Caldwell points out that article 4a of the Framework Decision provides that the executing judicial authority may refuse to execute the warrant if a person did not appear at the trial unless "the European Arrest Warrant states that the person, in accordance with the usual requirements defined in the national law of the issuing state" falls into one of the prescribed circumstances as set out thereafter.
Mr Caldwell says that Box B of the EAW in this case has option 2 ticked, namely "No, the person did not appear in person at the trial resulting in the decision." He says it is important to observe that the judicial authority failed...
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