Nicolae Nastase aka Nicolae Soloman v Office of the State Prosecutor, Trento, Italy
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty |
| Judgment Date | 20 December 2012 |
| Neutral Citation | [2012] EWHC 3671 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4122/2012,Case No: CO/4122/2012 |
| Date | 20 December 2012 |
[2012] EWHC 3671 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty DBE
Mr Justice Kenneth Parker
Case No: CO/4122/2012
Aaron Watkins (instructed by Kaim Todley Solicitors) for the Appellant
Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 21st November 2012
The extradition of the appellant Nicolae Nastase is sought by the respondent State Prosecutor, Trento, an Italian Judicial authority, pursuant to an EAW 'conviction warrant' issued on 8 May 2008 in respect of an alleged robbery committed in 2004. The judgment of the Court of Trento dated 11 October 2007 became final and enforceable in Italy on 26 November 2007.
The appellant was arrested in the United Kingdom and after contested extradition proceedings DJ Zani in a judgment dated 17 April 2012 rejected his arguments. The focus was and remains on s.20 of the 2003 Extradition Act ("the 2003 Act"). The appellant argued that he was neither present at nor deliberately absent from the trial which founded the conviction upon which the EAW is based, and that the judicial authority failed to demonstrate to the criminal standard that if extradited he would be entitled to a retrial or that it or appellate proceedings would satisfy the requirements of the 2003 Act. He relied upon s.20(5) and (8). He poses this question: What does " entitled" in s.20 mean?
The appellant's case is that an analysis of statute and of authority reveals " entitled" to mean enjoyment of an unfettered right under law not subject to discretion and that on either party's case there are reasonable doubts about whether he would be entitled to a retrial if extradited.
He argues that he enjoys a right restricted to an application to renew a time-limit to lodge an appeal. The judge has a discretion to grant or refuse it, exercised by reference to material outwith the access of courts in the UK. The consequence for which he argues is that an extradition court in this jurisdiction cannot assess the likely or possible outcome. In addition, before extradition the judicial authority must show the existence of clear rights as to a retrial process to ensure compliance with s.20(8) of the 2003 Act.
The Respondent contends that the evidence before this court and the District Judge shows that the appellant would be entitled to a retrial on return. Further, his rights set out in section 20(8) on return to Italy will be respected. Italian law provides for a retrial compatible with Article 6 of the European Convention on Human Rights and the 2003 Act. The DJ's decision was correct and consistent with appellate jurisprudence.
The legal framework
Section 20 reads where relevant as follows:
"20. 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….
(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….
(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 legislative background
The Council Framework Decision of 2009 ("the 2009 Framework") describes itself as "amending Framework Decisions…..thereby enhancing…procedural rights…and fostering the application of the principle of mutual recognition to decisions rendered in…absence…"
Article 4a where relevant permits refusal to execute an EAW in respect of a conviction in absentia unless the subject were timeously summoned in person or notified of the date and place of his trial and that a decision might be handed down if he did not appear, or counsel represented him, or, served with the decision and informed of his right to a retrial, he did not contest the decision or did not request a retrial within the applicable time frame.
The alterations effected by the 2009 Framework by and large mirror s.20. Against that backdrop the Appellant argues that "request" means "exercise the right of requiring a retrial" and that the enquiry created by s20 is evidential, based first on the EAW and then on any supplementary evidence the requesting state provides.
The present case
The EAW is criticized as misrepresenting the factual position and, as a consequence, being silent as to relevant Italian law. Box E in part reads:
"The person concerned was sentenced by a judgment issued against a person declared to be a fugitive from justice by the order of the Judge for Preliminary Investigations of Trento issued on 7, June 2005 and notified by means of service on his defence counsel on Oct. 25, 2007 to Art 165 of the Criminal procedure code."
This is said to suggest that the Appellant was (i) a fugitive and (ii) notified by service of documents on his counsel of the sentence imposed. It is said not to acknowledge that he was not deliberately absent and had a court-appointed lawyer acting without instructions rather than a lawyer acting on instructions whom he had appointed.
Four sets of further information were provided by the Judicial Authority in response to requests from the lower court. The first is covered by a note from the Italian Ministry of the Interior dated 3 rd September 2011. contains a 3 rd August 2011 letter from the public prosecutor in Trento stating that the police searched for Nastase who was declared a fugitive on 7 th June 2005, and a copy of the warrant for desertion issued by the Court of Trento which notes that exhaustive attempts to find him were in vain and that he escaped voluntarily. It appoints counsel for him and orders notification of his fugitive status to be served on counsel. 8 th May and 15 th September 2005 reports from the Trento Carabinieri confirmed that searches for him had been unsuccessful.
The public prosecutor responsible for the information in the EAW wrote:
"This office cannot assure that [Nastase] will be subject to a new trial as his judgment of conviction has already become final.
It is necessary however to specify that according to this constant case-law of the Court of Appeal, if the convicted person submits the said request, the Court of Appeal judge shall grant an out of time appeal in terms of Article 175 of the code of criminal procedure ("the Italian Code")with the consequent celebration of a new trial."
The judicial authority's translated Article 175 provides, so far as relevant:
"Article 175—Out of time appeal
1. The Public Prosecutor, the private parties and the defence counsel can lodge an out of time appeal if they can prove that they could not comply with the set time limit for a fortuitous even of force majeure…
2. If a judgment or a decree of conviction was rendered in absentia, the defendant may, upon his request, be granted a new term to lodge an out of time appeal, except when he has had actual knowledge of the proceedings or order and he voluntarily renounced to appear or to file an appeal, or opposition. The judicial authority shall carry out the necessary controls."
3. […]
4. The decision on the request shall be made by the judge trying the case at the time the request is submitted. The before the case is remitted to trial, the said decision shall be made by the pre-trial investigation judge. When the judgment or decree of conviction has been pronounced, the decision shall be made by the judge competed in respect of the appeal or opposition."
The Appellant submits that on its face this suggests that a retrial would depend on whether following an application the Court of Appeal granted one and that there is thus a discretion to refuse.
An 11 October 2011 response by the prosecutor to questions from the Crown Prosecution Service reveals his view that Nastase was legally informed of the hearing, but neither arrested nor interviewed and " therefore there was no subsequent order or obligation". He was declared a fugitive, defined as " a person who voluntarily escapes precautionary custody, house arrest, prohibition on leaving the country and obligation of residence or an order of imprisonment". As to Article 175(2) the prosecutor writes " The…person may request an out of time appeal…when he can prove he did not have effective knowledge of the order"
The Respondent concedes this was in error as to the burden of proof. The correct position was set out in the Ministry of Justice's evidence of 19 March 2012 and supported by Prof Iorio the appellant's expert before the District Judge. It would be the judge's responsibility to demonstrate effective knowledge on the part of the applicant before he, the judge, could refuse an application under Article 175.
The fourth set of further information from the Italian...
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