Igor Gisca v Prosecutor General of Trieste, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 10 February 2023 |
| Neutral Citation | [2023] EWHC 241 (Admin) |
| Docket Number | Case No: CO/1032/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 241 (Admin)
THE HON. Mr Justice Bourne
Case No: CO/1032/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Tinsley (instructed by Highgate Solicitors) for the Applicant
Georgia Beatty (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 18 January 2023
Approved Judgment
This judgment was handed down remotely at 10am on 10 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Honourable
This is an application for permission to appeal against the decision of District Judge Clarke on 10.3.22 ordering the Applicant's extradition to Italy. There are also applications to adduce further evidence consisting of English translations of some Italian documents which were in the original extradition bundle, and to add a further ground of appeal.
The case arises from two conviction warrants. The first (“EAW1”) relates to 39 offences of a theft-related nature between 6 February and 7 May 2009 which gave rise to a sentence of 2 years 6 months of which 2 years remains to be served. The second (“EAW2”) relates to an offence of burglary on 2 July 2010 with a sentence of 1 year 4 months, all of which remains to be served. The EAW2 offence triggered liability to serve the remaining part of the sentence for the EAW1 offences.
At the extradition hearing, following the provision by the judicial authority of further information, the Applicant conceded that there was no bar to extradition under section 20 of the Extradition Act 2003. By his amendment application he now seeks to rely on section 20 despite that concession. At the hearing he also relied on section 14, contending that his extradition would be oppressive, and section 21, contending that his extradition would infringe his rights under ECHR Article 8.
The district judge rejected evidence from the Applicant that he left Italy in 2009 because he was told that he faced deportation. Placing significant reliance on the fact that the deportation order was marked as being still to be executed, she did not accept that he “was thrown out in the way that he says that he was and that he was told not to return”. She also said that she did “not accept that the RP left Italy in 2009 and did not return save for one transit through Verona airport on one occasion in 2011”. It is not quite clear how that sentence should have been punctuated, i.e. which part or parts of that composite proposition might have been accepted even if the whole were not. However, she went on to explain that she did not know whether the Applicant left Italy and later returned, or “remained longer”, but she did find that he was in Italy to commit the further offence in July 2010.
The district judge also rejected his evidence that when he was interviewed by Italian police at Verona airport on 30 November 2011, he was just passing through Italy, finding instead that he was also in Italy a few days earlier on 22 November 2011. At Verona airport on 30 November he was served with a form which said that he was being investigated and therefore “is forced to communicate any change of legal domicile”, and he ticked a box which says “I refuse to choose registered residence and also to nominate an advocate for defence”. Although she said she could not decide how good his Italian was, the district judge rejected his evidence that he signed the form without knowing what it meant.
In light of those findings, she ruled that he “knowingly placed himself beyond the reach of the legal proceedings in Italy and in relation to these proceedings and as a result is a fugitive”.
That finding meant that the Applicant could not rely on section 14, which bars extradition where it would be unjust or oppressive by reason of the passage of time, because a fugitive is deemed to be responsible for the delay.
In respect of Article 8, the district judge directed herself by reference to the applicable case law, in particular Norris v Government of the United States of America (No 2) [2010] UKSC 9; HH v Italy (2012) UKSC 25 and Polish Judicial Authorities v Celinski & Others (2015) EWHC 1274. She then carried out a careful balancing exercise, identifying the factors for and against extradition. Having regard to her finding that the Applicant was a fugitive and given the gravity of his offending, the former outweighed the latter. She therefore rejected his challenge under section 21 and ordered extradition.
The Applicant's perfected grounds of appeal focus on challenging the district judge's finding that he was a fugitive, which was central to her rejection of his case under section 14 and material to her rejection of his case under section 21.
In De Zorzi v Attorney General Appeal Court of Paris [2019] EWHC 2062 (Admin), it was said that the test for fugitive status is whether the requested person deliberately and knowingly placed himself beyond the reach of a legal process. The Judicial Authority must prove this to the criminal standard: see Kociukow v Poland [2006] EWHC 56 (Admin).
The Applicant's counsel makes the following submissions:
(1) The Applicant is not a fugitive in respect of EAW 1. He initially received a sentence of 2 years 6 months of which 6 months was served and the rest was suspended. The 2 years was activated because of the commission of the further offence in 2010. This process occurred in 2017 and he had no knowledge of it.
(2) There is no evidence that the Applicant had any knowledge of his trial, conviction or appeal in respect of the EAW2 proceedings for the 2010 offence.
(3) The finding of fugitivity is based on the form which he signed at Verona airport on 30 November 2011. That form only said that he was being investigated, not that he was being prosecuted, and did not identify a specific offence or any possible consequences of it. A space on the form for particulars had not been filled in. His choice not to provide an address or nominate a solicitor was one of three options on the form. He probably left Italy at the behest of the authorities and not of his own motion because he had received a deportation order dated 8 November 2009, which he and the serving police officer signed. It cannot safely be assumed that he was given a sufficient explanation by the Italian police or that he understood any explanation that he was given.
(4) On these facts, his departure represented a failure by the Italian authorities to deal with the 2010 offence. Instead of letting him depart, they could have arrested him and a decision could have been made either to charge him or drop the matter.
(5) If the district judge had not found the Applicant to be a fugitive, he would have had a strong case under section 14. There were long delays in dealing with the EAW2 offence and in activating the sentence in the EAW1 offences, during which time he went from being an 18 year-old care leaver to having settled work, a marriage and two children and to supporting an extended family in the UK.
(6) The delay would also have been an important factor under Article 8.
On 10 October 2022, Julian Knowles J refused permission on paper. Fugitivity was a question of fact for the district judge and he considered her findings of fact to be unimpeachable. Nor was there any arguable error in the Article 8 analysis.
On 7 December 2022 the Applicant applied to (1) adduce evidence of translations of certain Italian documents previously provided and (2) amend his appeal to rely on a further ground, under section 20 of the 2003 Act.
As to (1), the translations are of two pages concerning the order that the Applicant be deported from Italy. In the Italian original they are two of four pages, all dated (or referring to) 8 November 2009. The notification of the deportation order itself was in English and Italian. The first translated document, issued by the Prefect of the Province of Udine, was the deportation order which stated that the Applicant was expelled, that he could not return without authorisation within 5 years on pain of imprisonment and re-expulsion and that he had a right of appeal. The second translated document was issued by an official known as the Questor of the Province of Udine. It noted that the deportation order could not immediately be executed because of a lack of transportation, travel document and detention facilities, and then ordered the Applicant to leave the territory, stating that in case of transgression he would be arrested and then subjected to “expulsion with accompaniment to the border”.
The Applicant contends that the translations show that he was...
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