Hekri Domi v The Public Prosecutor's Office, Court of Udine (an Italian Judicial Authority)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cheema-Grubb DBE,Lady Justice Carr DBE |
| Judgment Date | 19 April 2021 |
| Neutral Citation | [2021] EWHC 923 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/254/2020 |
| Date | 19 April 2021 |
[2021] EWHC 923 (Admin)
Lady Justice Carr DBE
and
Mrs Justice Cheema-Grubb DBE
Case No: CO/254/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Hickman QC and Myles Grandison (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: 24 March 2021
Approved Judgment
Introduction
The Appellant, Mr Hekri Domi, is a 27 year old Albanian citizen. On 19 December 2018 the Respondent, the Public Prosecutor's Office at the Court of Udine, Italy, issued three European Arrest Warrants seeking his extradition (“the EAWs”). The EAWs are conviction warrants seeking the Appellant's return to Italy in order to serve an overall sentence of ten years and four months' imprisonment (of which nine years, nine months and 22 days remain to be served). Italy is a Part 1 territory for the purpose of the Extradition Act 2003 (“the 2003 Act”).
On 20 January 2020 District Judge McGarva (“the District Judge”) ordered the Appellant's extradition pursuant to s. 21(3) of the 2003 Act. This is the Appellant's appeal pursuant to s. 26 of the 2003 Act against that order. By s. 27(2) this court can allow the appeal if:
“(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided that question in the way he ought to have done, he would have been required to order the person's discharge.”
The appeal raises questions as to the circumstances in which, if at all, an individual who has been deported from a territory is to be treated as present at a subsequent criminal trial in that territory for the purpose of s. 20 of the 2003 Act (“s. 20”) and the scope (and correctness) of the decision in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin); [2016] 1 WLR 3344 (“ Cretu”). The court is asked, amongst other things, to consider the interplay between the 2003 Act and the Council Framework Decision 2002/584/JHA (as amended by Council Framework Decision 2009/299/JHA (“the 2009 Framework Decision”)) (“the 2002 Framework Decision”) in the context of the District Judge's findings on the facts.
As set out more particularly below, the issues fall to be decided by reference to the law applicable before the end of the transition period governing the departure of the United Kingdom (“UK”) from the European Union (“EU”) on 31 December 2020. In order to resolve them the court has had the benefit of helpful submissions from Mr Hickman QC and Mr Grandison for the Appellant and Mr Perry QC and Ms Brown for the Respondent.
The Facts
The Appellant was born on 10 March 1994 in Albania. In September 2009, at the age of 15, he moved to Udine in Italy. He wanted a better life: to study and then to work. He reported to the Italian police on arrival and was sent to a college for unaccompanied immigrant children.
On 20 April 2011 the Appellant committed “robbery” and “bodily injury” offences (“the EAW 2 offences”). The offending involved a joint enterprise armed robbery on a supermarket using a toy gun; the Appellant was armed with a knife. Violence was used against two female members of staff and €1,800 taken.
The Appellant was arrested on 21 April 2011 and placed in pre-trial custody on 23 April 2011. On that occasion the Appellant requested an “abbreviated” trial ( rito abbreviato) (granting him a right to a one-third reduction in sentence in the event of conviction). On 4 October 2011, upon request by the Appellant's court-appointed lawyer, Avv. Petaryni, the Judge ordered that pre-trial custody be replaced with a community order. An order was made suspending the trial for a year in order for the Appellant to be placed on probation and monitored. That order, however, was subsequently revoked on the basis of non-compliance by the Appellant. After a further suspension was terminated for violation of conditions by the Appellant, the trial commenced and proceeded. On 18 May 2012 a sentence of three years' imprisonment was imposed. It was suspended at that stage (“the EAW 2 sentence”). The sentence became final on 4 July 2012.
On 11 October 2012 the Appellant is said to have committed “robbery”, “unlawful carrying of arms and objects able to inflict injuries” and “bodily injury” (“the EAW 1 offences”). The offending involved the threatening of a shop assistant with a box cutter in order to steal €350. During the course of his escape, he was encountered by a man whom he pushed to the floor, causing injuries.
Between 20 and 22 January 2013 the Appellant committed offences of “extortion” (twice), “resisting a public official” and “unlawful possession and carrying of weapons (“the EAW 3 offences”). The Appellant robbed a man of money and jewellery and then sought money for return of the jewellery. When arrested, the Appellant used violence on police officers and was found to be in possession of a 27 cm knife. He was remanded in custody on these offences on 22 January 2013.
On 13 February 2013 the Appellant was served with a “notice of the end of the preliminary investigations” in respect of the EAW 1 offences and informed of his rights to appoint a lawyer of his choice and declare/elect domicile for service. He was also notified of the obligation to inform the Italian authorities of any change in the declared/elected domicile. At first, the Appellant did not appoint a lawyer of his choice to represent him in relation to the EAW 1 offences, so the Judicial Police confirmed the appointment of the court appointed lawyer, Avv. Cassina. However, on 27 April 2013 the Appellant instructed Avv. Crosilla to represent him in relation to the EAW 1 offences. He met her for the first time on 30 April 2013 when he attended court for a preliminary hearing. On his instructions, Avv. Crosilla sought and obtained an adjournment (of six weeks) until 11 June 2013 in order for her to take further instructions. The Appellant's case is that she never took any such instructions. The Appellant was returned to custody. Avv. Crosilla at no stage visited him prior to his deportation.
On 13 May 2013 the Appellant appeared in court in respect of the charges on the EAW 3 offences. He was represented by Avv. Cassina. Following another “abbreviated” trial procedure, he was sentenced to a term of two years and six months' imprisonment, suspended (“the EAW 3 sentence”) and released on probation.
On 13 May 2013 the Appellant was served with a deportation order (“the deportation order”) and deported to Albania on 15 May 2013. That deportation order was made not by the courts but was an administrative order made by the Prefect of Udine on the basis that the Appellant had overstayed his expired residence permit for more than 60 days and not applied for a renewal. This was apparent on the face of the order. It had nothing to do with any of the EAW 1, 2 or 3 offences. The deportation order stated that it would be a criminal offence for him to return to Italy within a minimum period of five years “save obtaining specific authorisation from the Ministry of the Interior”. Failure to abide by the deportation order would result in a sentence of up to four years.
The Appellant's position is that he (genuinely and reasonably) believed that his deportation brought all of the criminal proceedings in Italy to an end.
However, the criminal proceedings in Italy in relation to the EAW 1 offences continued. On 11 June 2013 the adjourned preliminary hearing took place, attended again by Avv. Crosilla for the Appellant. On 4 November 2014 the Appellant was convicted on the charges relating to the EAW 1 offences. Again, although he was not personally present, he was represented at the hearing by Avv. Crosilla. He was sentenced to four years and 10 months' imprisonment. This led to the activation by the court of the EAW 2 and 3 (suspended) sentences which were “included in the order of enforcement of concurring sentences”. A total sentence of 10 years and four months' imprisonment was thus imposed. The judgment of 4 November 2014 (“the November 2014 judgment”) became final on 18 February 2015. An order of enforcement of the amalgamated sentences was issued on 2 May 2016.
The Appellant points to the fact that the convictions for the EAW 1 offences (committed in October 2012) were relied on to justify activation of the EAW 3 sentence (as well as the EAW 2 sentence) (even though the EAW 1 offending pre-dated the operational period of the EAW 3 sentence). However, whilst this would not have been the approach of the English criminal courts, it was permitted as a matter of Italian law.
Following his deportation to Albania in 2013, the Appellant arrived in the United Kingdom in March 2015 with his then girlfriend, with whom he had been in a relationship since 2010. She obtained work as a receptionist and he worked in a restaurant and then as a gardener. They married in May 2016 and had a son in June 2017. The Appellant was able to obtain a residence card on the basis that he was a family member of an EEA national exercising Treaty rights in the United Kingdom. Once he had a full right to work he started as a labourer for Kilhan Construction. He has worked his way up to become a foreman. His wife works in customer services and is due to give birth to their second child imminently. He is...
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