Mohammed Elashmawy v Court of Brescia, Italy Fabio Riva (First Interested Party) Court of Taranto, Italy (Second Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Aikens,or
Judgment Date16 January 2015
Neutral Citation[2015] EWHC 28 (Admin)
Date16 January 2015
Docket NumberCase No: CO/3968/2014

[2015] EWHC 28 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Aikens

Mr Justice Ouseley

Mr Justice Mitting

Case No: CO/3968/2014

Between:
Mohammed Elashmawy
Claimant
and
Court of Brescia, Italy
Defendant
Fabio Riva
First Interested Party

and

Court of Taranto, Italy
Second Interested Party

Alun Jones QC and Martin Henley (instructed by Lloyds PR Solicitors) for the Claimant

John Hardy QC and Hannah Hinton (instructed by CPS Special Crime and Counter Terrorism Division) for the Defendant

Edward Fitzgerald QC and Aaron Watkins (instructed by BCL Burton Copeland) for the First Interested Party

Peter Caldwell and Saoirse Townshend (instructed by the CPS) for the Second Interested Party

Hearing dates: 05 & 06/11/2014

Further written submissions and evidence: 13 and 17/11/12.

Lord Justice Aikens
1

This is the judgment of the court to which all of us have contributed.

Background to the appeal: the appellant Mohammed Elashmawy.

2

The appellant is an Egyptian national, born on 21 March 1972. For some years he conducted several businesses in Italy. In 2005 Zhang L was employed by the appellant to work at a call centre that he ran. She was then 15 years old. The appellant allowed Ms L the use of a flat. Ms L alleged that on 25 July 2005 the appellant let himself into her flat and raped her violently after he had given her a "date rape" mixture to drink so that she became incapable of defending herself against his unwanted advances. She suffered injuries as a result of the attack. The appellant was charged, tried and convicted of Ms L's rape at the Court in Brescia, Italy. The first part of the criminal procedure took place in the appellant's absence, although his lawyer was present. The process led to the appellant's conviction and a sentence of 7 years imprisonment. The Court of Appeal of Brescia dismissed an appeal from that conviction. Subsequently the Court of Cassation remitted the case to a different section of the Court of Appeal in order that it should hear from various defence witnesses. However, under Italian criminal procedure the prosecution witnesses were not recalled and the appellant did not give evidence at that new hearing. Having followed this course, on 4 February 2011 the Court of Appeal of Brescia issued a judgment which affirmed the appellant's conviction and imposed a sentence of 6 years 6 months imprisonment. A further attempted appeal to the Court of Cassation was declared inadmissible on 26 October 2011. The appellant has accepted the conclusion of Deputy Senior District Judge Arbuthnot ("the judge") that he is a "fugitive" from his sentence. All of it remains to be served.

3

On 24 October 2013 the respondent Judicial Authority ("JA") issued a European Arrest Warrant ("EAW") requesting the surrender of the appellant to Italy so that he could serve his sentence. Italy has been designated a Category 1 territory for the purposes of the Extradition Act 2003 ("the EA") so that Part 1 of the EA applies to this case. The EAW is what is often called a "conviction" warrant, because it seeks the surrender of the appellant to serve a sentence for an offence of which he has been convicted and sentenced. The EAW was certified by the National Crime Agency on 25 October 2013. The appellant was provisionally arrested on 24 October 2013 when he was at Stansted Airport upon his arrival to the UK from Sweden. He has remained in custody ever since then.

4

The appellant did not consent to his surrender to Italy and so a full extradition hearing was started by the judge on 24 January 2013. The hearing continued over a further four days between May and August 2014. Judgment was given by the judge on 18 August 2014. The judge dismissed all the grounds of challenge raised by the appellant and ordered his extradition to Italy.

5

There were before the judge and there are before us three grounds on which the appellant resists his surrender. The first is, (in summary), that he was absent from his original trial in 2008, upon the advice of his lawyer that his attendance was not necessary and that the hearing would be formal. There were two appeals. The appellant does not accept that he was present at the first in 2009, but he accepts that he was present and properly represented at the second appeal before the Brescia Court of Appeal in 2011. However, because he was not present at the "trial" where he was convicted in 2008 and because it is accepted that he would have no right to a retrial upon his surrender to Italy, the appellant argues that he should be discharged pursuant to section 20(7) of the EA. We will call this ground of appeal "the trial in absentia ground". Secondly, if this first argument does not succeed, the appellant argues that the trial as a whole was flagrantly unfair, because he was unable to cross-examine prosecution witnesses or otherwise challenge their evidence at any stage in the proceedings leading to his original conviction or thereafter. Accordingly, any surrender of the appellant to serve a sentence following a trial that was in flagrant breach of his rights under Article 6 of the European Convention on Human Rights ("ECHR" or "the Convention") would make the surrender to serve the prison sentence a breach of his Convention rights under Article 5. That is because the imprisonment would constitute unlawful detention as the prior trial process had been in flagrant breach of the appellant's Convention rights. Therefore, it is argued, the appellant should be discharged pursuant to section 21(2) of the EA. We will call this ground of appeal "the Articles 5 and 6" ground.

6

The final ground of appeal is that the prison conditions in Italy are systemically so appalling that detention in them would constitute inhuman or degrading treatment or punishment, so if the appellant were surrendered to serve his sentence in an Italian prison there would be a real risk that his Article 3 ECHR rights would be infringed. Moreover, the various assurances given by Italian authorities as to where and in what conditions the appellant would be detained are insufficiently precise or reliable to overcome this systemic inadequacy. Therefore the appellant should be discharged, again pursuant to section 21(2) of the EA. We will call this ground of appeal "the Article 3 and prison conditions" ground.

Background to the first interested party: Fabio Riva.

7

Fabio Riva, the First Interested Party, ("Mr Riva") is the subject of two "accusation" EAWs issued by JAs in Italy. The first was issued by the Court of Taranto. That EAW seeks the surrender of Mr Riva to face a criminal prosecution in respect of alleged offences of conspiracy to commit public health and safety offences and offences against public administration and trust whilst he was Vice Chairman of the Board of Directors of Riva SpA. Mr Riva challenged that EAW before District Judge Zani on several grounds. One of them was the Article 3/ prison conditions ground. District Judge Zani promulgated his Ruling on 26 February 2014. He rejected all the challenges made to what has been called "the Taranto EAW". In relation to the Article 3/prison conditions ground DJ Zani heard expert evidence. He concluded that "the Italian authorities are not only well aware of their Convention obligations but that they will abide by them": para 167.

8

The second EAW was issued by the Court of Milan: "the Milan EAW". That is also challenged. A full extradition hearing before the Magistrates' Court is pending. The Milan EAW is also challenged by Mr Riva on the Article 3/ prison conditions ground.

9

At a case management hearing on 6 October 2014, Aikens LJ ordered that the parties in the appeal of Riva against the Court of Taranto should be joined as Interested Parties in the appeal of the appellant Elashmawy, in order that counsel acting respectively for Mr Riva and the Court of Taranto could present arguments on the legal principles and the facts concerning the Article 3/ prison condition issue. There are other issues in the Taranto EAW appeal, but they were not the subject of argument at the hearing of Mohammed Elashmawy's appeal. Meanwhile proceedings in the Milan EAW case have been stayed pending the outcome of this appeal.

10

On 5 and 6 November 2014, we heard oral argument from Mr Alun Jones QC and Mr Edward Fitzgerald QC on behalf, respectively, of the appellant Elashmawy and the First Interested Party, Mr Riva, Mr John Hardy QC on behalf of the respondent and Mr Peter Caldwell on behalf of the Second Interested Party. Mr Jones complained that some material relied on by the respondent had been produced for the first time at the appeal before this court and also that it had been served on the appellant very late. We ordered that Mr Jones could make further written submissions on the new material and adduce further evidence if so advised and that Mr Hardy could respond to that, in accordance within a timetable that we laid down.

11

We therefore reserved judgment.

The history of the criminal proceedings in Italy against the appellant in more detail.

12

The history of the proceedings, as found by the judge and as supplemented by the material which we were shown (without objection), is as follows: there were preliminary investigations by the Italian authorities until June 2006. On 11 June 2006 a notice of their conclusion (in Italian) was given to the appellant at a police station and he signed it. Before the judge there was a dispute about whether the appellant had signed that document and whether he understood it. The judge dismissed the...

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