Gheorghe Brasov v Deputy Prosecutor General of Rome, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 06 February 2015 |
| Neutral Citation | [2015] EWHC 779 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 February 2015 |
| Docket Number | CO/5227/2014 |
[2015] EWHC 779 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/5227/2014
Mr D Sternberg (instructed by ABV Solicitors) appeared on behalf of the Appellant
Ms H Hinton (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
Background
This is an appeal against a decision of District Judge Barrie, dated 10 November 2014, to order the extradition of the appellant pursuant to a European Arrest Warrant. The warrant seeks the appellant's extradition to Italy to serve the balance of a sentence of 6 years' imprisonment, of which 2 years 11 months and 11 days remained to be served. That sentence has been imposed for convictions on four offences. The warrant reads, as follows:
"Circumstances: The investigations carried out by the Judicial Police (statements made the victims, identifications of persons in photographs, surveillance, control and observation operations, transcripts of searches and seizures, wiretappings) revealed that Mr Brasov Gheorghe, together with his co-offenders, was a member of a criminal organization engaged in recruiting and introducing into the State's territory Romanian girls as well as facilitating and exploiting their prostitution. In particular, the aforesaid girls were given one bus ticket to travel from Romania to Italy. Once the girls arrived in Italy, at the trading centre Cityper of Grottammare, members of the organisation took them and destined them to various houses in the municipalities of San Benedetto del Tronto, Fermo, Alba Adriatica and Martinsicuro, after withdrawing their Romanian passports and giving them another false passport of the Czech Republic. Then the girls began to prostitute themselves and used, to find their clients and to have contacts with them, advertisements on local newspapers and mobile telephone numbers provided by the members of the association whom they also gave part of the earnings of prostitution. In particular, the role of Brasov Gheorghe was to organize the houses used by the girls, he had the task to find and rent the apartments to be used for the girls's prostitution and also to prepare the means necessary to this activity and to periodically collect the sums obtained from it."
The warrant continues that the offending occurred up to 4 October 2002 and that it occurred in San Benedetto del Tronto and other places. The warrant states that the degree of participation in the offence was as a "co-author".
The statutory provisions are then identified. In relation to offence 1: article 416 of the Italian penal code; offence 2: article 110 of the Italian penal code, combined with other provisions of Legislative Decree 286/1998; offence 3: article 110 of the penal code combined with articles of Law 75/1958; and offence 4: articles 110, 477, 482 and 61 number 2 of the Italian penal code. The legal classification for the four offences is stated as follows: offence 1: criminal association; offence 2: complicity in facilitating illegal immigration; offence 3: complicity in facilitating and exploiting prostitution; and offence 4: complicity in faking passports. The warrant indicates that in terms of the Framework list, the offences are participating in criminal association; trading in human beings; facilitating illegal entry and stay; and faking administrative acts and trafficking in false documents. However, the warrant states that an offence not covered by the Framework list is the facilitating and exploiting of prostitution.
There had been a hearing in Italy in June 2003 in relation to the offending, and the appellant was convicted in his absence. The matter subsequently went to the Court of Appeal of the Ancona Criminal Division. It made a decision in November 2009 which became final in February 2011. Following the convictions the European Arrest Warrant was issued. In additional information from the judicial authority it is stated that the appellant was fully aware of the offences and that he was informed of the indictment and charge sheet.
In careful and thorough submissions on his behalf, Mr Sternberg contends that the district judge was incorrect in ordering the appellant's extradition. His submissions fall under three heads.
Section 2: the warrant particulars
The first issue Mr Sternberg raises concerns section 2(6)(b) of the Extradition Act 2003 (the 2003 Act"), which requires as information in the warrant particulars of conviction. In short he contends that this warrant fails to include the requisite information and therefore is not a valid part 1 warranty.
This matter was agitated before the judge. She reserved judgment and handed down very full reasons. She rejected Mr Sternberg's submission that there were no particulars on the face of the warrant relating to the appellant's involvement in these four offences. She said that she read "complicity" in the warrant to mean conspiracy for the purposes of the offending. She highlighted the use of the word "co-author" in the warrant. She said that the particulars in the warrant were sufficient in outlining the purpose of the criminal organisation; that the warrant as a whole made clear that this appellant was part of a conspiracy to traffic women to Italy for prostitution; and that this was effected by bringing them into the country unlawfully involving use of false passports. The warrant in her view was clear that the appellant was a member of the organisation and his part of the conspiracy was to provide housing and also to collect their earnings. Albeit that that was his specific involvement, her view was that the particulars were such as to indicate that he was involved in the other offences as part of the overall conspiracy. At paragraph 42 of her judgment she said:
"In my judgment, it is clear from the warrant that the [police investigation] identified Mr Brasov and his co-accused as members of a criminal organisation engaged in recruiting Romanian girls to Italy to facilitate and exploit them for prostitution. That was the criminal aim of the organisation and that was the overall conspiracy to which Mr Brasov was a party. The fact that his particular role was identified as the 'houser' of the girls does not mean he was not in agreement to the commission of the other offences in furtherance of the organisations criminal aim and common design."
Before considering Mr Sternberg's submissions, it is well to refer to the three authorities cited to me which have a bearing on them. The first is my judgment in an accusation warrant case, Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) where I said this, with the agreement of Richards LJ:
"7… In other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."
In Pelka v Judge Radomir Boguszewski Regional Court In Gdansk Poland [2012] EWHC 3989 (Admin) Collins J referred to Ektor and then went on to say this in relation to conspiracy offences:
"6. Certainly, where involvement in a conspiracy is alleged, it is not necessary to include any great detail as to the precise acts committed in furtherance of the conspiracy. But, as a general proposition, it seems to me that a warrant ought to indicate, at least in brief terms, what is alleged to have constituted the involvement or the participation of the individual in question. It seems to me that, prima facie, simply to say there was a conspiracy and he conspired with others is to do whatever the end result of the offence is, is likely not to be sufficient. Indeed, if one looks at the case of Kopycki itself, one sees that that approach is likely to have appealed to Calvert-Smith J."
Perhaps most importantly in considering Mr Sternberg's submissions is the judgment of Hickinbottom J (with which Moses LJ agreed) in Sandi v The Craiova Court, Romania [2009] EWHC 3079 (Admin). In that decision Hickinbottom J stated at paragraph 33 that the appropriate level of particularity in a conviction warrant case to satisfy section 2(6)(b) depended upon the circumstances of each case and, at paragraph 34, that adopting a purposive approach the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for, and to enable him to consider whether any bars to extradition might apply. Hickinbottom J referred to Article 8(1) of the Framework Directive and stated that in relation to a conviction warrant he considered that it would almost always be necessary to include...
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