Visha v Criminal Court of Monza, Italy
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 20 February 2019 |
| Neutral Citation | [2019] EWHC 400 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4447/2018 |
| Date | 20 February 2019 |
[2019] EWHC 400 (Admin)
Lady Justice Rafferty DBE
Mrs Justice Carr DBE
CO/4447/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr M Hawkes (instructed by McMillian Williams Solicitors Ltd) appeared on behalf of the Appellant.
Miss C Brown (instructed by Crown Prosecution Service, Extradition Unit) appeared on behalf of the Respondent.
Introduction
This is the judgment of the Court.
The Appellant is a 31-year old Albanian. This is his appeal pursuant to section 26 of the Extradition Act 2003 (“the 2003 Act”) against the decision of District Judge Jabbitt (“the Judge”) on 1 November 2018 to order his extradition pursuant to an accusation European Arrest Warrant issued by the Respondent on 20 February 2014 and certified by the National Crime Agency on 22 April 2018 (“the EAW”). He has been and remains in custody following his arrest on the day of certification. The EAW seeks the surrender of the Appellant in order to prosecute him for offences arising out of his alleged involvement in a criminal gang committing offences that include murder, exploitation and the facilitation of prostitution and burglary.
Permission to appeal was granted by Ouseley J on 4 February 2019 on a single ground, namely that it is arguable that the procedure identified in Aranyosi and Caldararu [2016] QB 921 (“ Aranyosi”) should have been followed on the basis of a real risk of a breach of the Appellant's rights under Article 3 of the European Convention on Human Rights (“Article 3”) (“the ECHR”) upon his surrender because of general overcrowding (“the Article 3 issue”). An application to renew those grounds in respect of which permission was refused and to advance a new ground on abuse of process has been withdrawn.
The Appellant submits that the Judge fell into error in his treatment of the Article 3 issue. The Appellant having adduced evidence of a serious and growing problem of prison overcrowding in Italian prisons, the Judge was wrong to apply the so-called “international consensus test” and to proceed without any response or reply from the Italian judicial authorities on this issue, still less any assurance. Further, fresh evidence which post-dates the conclusion of the case below reveals that the conditions at the prison in which it is said to be likely that the Appellant would be held are “undoubtedly not Article 3 compliant”. The Appellant submits that the Judge's conclusions are wholly undermined by this fresh evidence.
The appeal has been heard on an expedited basis in the light of concerns that the relevant custody time limits in Italy will shortly expire (on 22 April 2019). The Italian authorities have indicated that the Appellant would need to arrive in Italy by the beginning of March 2019 in order to ensure that the relevant parties can be served in time for the necessary preliminary hearing.
Time is, therefore, of the essence. This judgment is being delivered immediately at the conclusion of the hearing before us. We would wish to express our gratitude at the outset to both counsel who have worked under pressure and have nevertheless provided high-quality and helpful submissions on both sides.
Yesterday, on the eve of the hearing, the Respondent served an application to admit two assurances to which we will turn in due course. Much of the submission before us today was naturally focussed on those assurances. Their thrust is to identify where the Appellant would be detained upon extradition and to indicate that he will be guaranteed at least three square metres of personal space in accordance with Article 3.
The EAW
The EAW, as supplemented by further information provided by the Respondent on 17 August and 6 September 2018, seeks the surrender of the Appellant in order to prosecute him for the following four offences:
“i) Criminal association — between July 2013 and 14 November 2013 in association with Dorjan Vishaj, Albert Ruci, Pellumb Hamza, Shpresin Vishaj, Besjan Mehemti, Vasilica Carmen Zaharia, Adison Shabani, Artur Vashaj and Sekret Vishaj in view of committing offences of exploitation and facilitation of prostitution, as well as burglaries, the Appellant specifically:
a) facilitated and exploited the prostitution activity of Ardita Ismajlukaj on the territory of the municipality of Lomazzo and Appiano Gential (CO);
b) took and got from the workplace the prostitute Mbarine Ismajlukaj thus facilitating her prostitution on behalf of the organisation;
c) paid to the criminal organisation part of the proceeds obtained from the exploitation of the prostitute Ardita Ismajlukaj and the sum due for the location occupied by her to prostitute herself;
d) took part in the meetings with the other members in the bingo hall of Vetermate con Minoprio (CD);
e) took part in the control of the ‘places’ to avoid that they be occupied by women unconnected with the organisation.
This is contrary to Article 416 §2 and 4 of the Criminal Code. The maximum sentence is 15 years' imprisonment.
ii) Exploitation — between July 2013 and 14 November 2013 at Appiano Gentile and Lomazzo (in complicity with Dorjan Vishaj) the Appellant received from her the proceeds of prostitution. He also took her and made others take her to the workplace and provided her with the means to ‘exercise her activity’. The offence is aggravated as the Appellant consistently hit Ardita Ismajlukaj causing injuries to her teeth. This is contrary to Article 110 of the Criminal Code and Article 3n.8 and 4n1 Law 20 February 1958 n.75. The maximum sentence is 12 years' imprisonment.
iii) Facilitation of prostitution — between July 2013 and 14 November 2013 in Appiano Gentile and Lomazzo, the Appellant facilitated the prostitution of Mbarime Ismajlukaj by taking her to and from the workplace. This is contrary to Article 3 n.8 of Law 20 February 1958 n.75. The maximum sentence is one of six years' imprisonment.
iv) Murder — on 14/15 November 2013 in the car park of a supermarket in Seveso he murdered Leka Selim by stabbing him to death with a knife (in the face, chest and abdomen). The murder is aggravated by ‘malice aforethought’ because the applicant went to the meeting with the victim armed with a knife. This is contrary to Articles 575, 577 n.3 of the Criminal Code. The maximum sentence is one of life imprisonment.”
The Framework List has been ticked in order to designate the conduct for offences 1 and 2 as “participation in a criminal organisation” and “murder”.
Procedural History
The enforceable decision in Italy was made on 2 January 2014. On 10 February 2014 the Appellant was declared a fugitive. The EAW was issued on 20 February 2014 and certified on 22 April 2018. In the meantime, the trial due to start on 1 October 2015 was suspended because the Appellant was untraceable at the time.
On 21 April 2018 the Appellant was arrested in respect of domestic human trafficking offences. Whilst he was in custody, checks revealed the existence of the EAW and he was arrested pursuant to the EAW the next day. He was subsequently charged with conspiring with others to require others to perform forced labour and arrange the travel of others for the purposes of exploitation.
The extradition proceedings were opened formally on 23 April 2018. The case was adjourned pursuant to section 8(a) of the 2003 Act (because of the modern slavery and people-trafficking charges). The Appellant was remanded in custody. On 22 May 2018 the Appellant and his co-defendant appeared in Newcastle Crown Court on the domestic charges. The case was adjourned for trial in September 2018 but by July last year the domestic charges had been discontinued. Thus, on 3 July 2018 the extradition case resumed with a hearing fixed for 18 September 2018. That hearing then had to be adjourned due to technical difficulties. The full hearing finally commenced on 1 October 2018. It was adjourned in order to allow the Appellant to submit further materials which he did on 25 October 2018. Judgment was then delivered on 1 November. The Appellant's extradition was ordered. He lodged this appeal on 7 November 2018.
The Hearing and Judgment below
The Appellant did not give oral evidence at the hearing, although his brother Vladimir Visha did. His brother was to describe a blood-feud in Albania between the Appellant's family and that of the murder victim Leka, which is not relevant for present purposes. The Appellant relied upon a report on “Detention in Italy” prepared by Associazione Antigone (“Antigone”) dated 31 July 2018. Antigone is a small NGO established in 1991 dealing with human rights protection in the Italian penal and penitentiary system. It has unrestricted access to the Italian prison estate and is funded by the Italian Prison Ombudsman. Mr Scandurra, Antigone's director of research, gave evidence to the Judge via Scopia link.
In his ruling the Judge rehearsed the law and the evidence before him, going on to make his findings of fact. He accepted that the...
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