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.

Section 20reads where relevant as follows:

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 EAW is criticized as misrepresenting the factual position and, as a consequence, being silent as to relevant Italian law. Box E in part reads:

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. It 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:

The judicial authority’s translated Article 175 provides, so far as relevant:

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 Ministry of Justice dated March 19 2012 attaches the judgment of the Court of Cassation in Judgment 1805 delivered on January 20 2011.

On Article 175 it wrote:

The judgment of the Court of Cassation in case 1805 shows that a person convicted in absentia whose term of appeal is restored may obtain the renewal of the proceedings on appeal, without exclusion of these benefits because the person was classified as a fugitive. A person tried in absentia and not aware of the proceedings shall always have the right to obtain the renewal of the trial under Article 603(4) of the Italian Code of criminal procedure.

The second document is the judgment in case 1805/2010. The second ground of appeal was whether the appellant were entitled to a renewal of the trial based on the condition that he had no knowledge of the first judgment. It is summarised in part:

The Appellant before us argues that the concept of automaticity nowhere features in the judicial authority’s evidence and that “automatically” as defined by the Ministry of Justice does not mean “as of right”, only that the applicant bears no burden to prove innocent ignorance of the proceedings.

Thus, so the argument goes, the question of renewing evidence also involves a measure of discretion. Accordingly, the judicial authority has not provided a clear and correct account of the operation of Italian law. Its material is internally confusing and at odds with the Ministry of Justice’s on key points. This Court is left to bridge gaps, make assumptions, draw inferences, and resolve contradictions and uncertainties about the application of foreign law. That is unacceptable in principle Mucelli, R (on the application of) v TheGovernment of Albania[2012] EWHC 95 (Admin).Nor is mutual trust the solution since it can inform only the approach to clear statements by the requesting state.

Professor Paolo Iorio an Italian academic and lawyer gave evidence to the DJ. Since then, the judgment of this court in Rexha v Officer of the Prosecutor, Court of Rome [2012] EWHC 3397) included significant anxieties about aspects of his evidence in that (Rexha’s) case which it is unnecessary to rehearse. Sensibly, Mr Watkins for the appellant advanced his arguments before us without reliance on Professor Iorio although he did not formally abandon his evidence. Consequently it is unnecessary for me to consider Professor Iorio’s opinion and, like Mr Watkins himself, I have had no difficulty reaching a conclusion whilst putting it aside.

The judge is criticised as incorrect on many more fronts than the meaning of “entitled”. On the burden of proof, having correctly acknowledged that the “requesting judicial authority have [sic] theburden of proving beyond reasonable doubt that the requested person deliberately absented himself from his trial”, when considering the burden under section 20(5), he is said to have changed his approach when he found:

He is said wrongly to have relied upon an assessment of Italian law in unrelated cases, whereas S.20 necessitates a circumstance-specific evidential enquiry. It is not the appellant’s case that Italian law is incapable of providing retrial proceedings to defendants convicted in absentia, rather that the granting of a retrial is too uncertain.

He is said to have conflated Article 6 ECHR with s.20. Status as a contracting party does not short-circuit the S.20 enquiry: Bohm v Romanian Judicial Authority[2011] EWHC 2671(Admin)

He is said to have failed to address arguments as to out-of-time appeal proceedings and wrongly to have fortified his conclusions based on general principles of mutual trust.

In what the appellant described as the kernel of his judgment the DJ said:

In Gradica v Public Prosecutor's Office Attached to theCourt of Turin[2009] EWHC Admin 2846,the Divisional Court considered the intersection of Article 175, Article 6 ECHR and s.20 of the 2003 Act. At paragraphs 31 and 35 Pill LJ, with whom I agreed, said:

The approach in Gradica was endorsed in Tous v District Court in Nymburk, Czech Republic [2010] EWHC 1556 (Admin) where Cranston J said:

In Benko v Law Enforcement Division of Veszprem County Court, Hungary [2009] EWHC 3530 (Admin) a Divisional Court of Dyson LJ and Tugendhat J considered whether a retrial, dependant on the requested person’s application, complied with the requirements of s.20 of the 2003 Act and held:

In Da An Chen v Romania [2006] EWHC 1752 (Admin) Mitting J said: “‘Entitled’ as a matter of ordinary language must mean ‘has the right under law’. It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking a court to exercise a discretion.”

In Ahmetaj v Prosecutor General Attached to Court of Appeal Genoa[2010] EWHC 3924 (Admin) a Divisional court of Laws LJ and McCombe J considered an EAW seeking the appellant’s return to Italy The appellant resisted extradition on the basis that he would not be granted a retrial on return. It was not disputed that the appellant was absent when convicted. Laws LJ said:

In Bohm Irwin J said: “The question then is whether, under the law of the requesting state, the defendant would be entitled to a retrial on appeal or a review amounting to a retrial, and for the present purpose I emphasise the word “entitled”… If the answer…is “no” or “perhaps” or “in certain circumstances”, then that is not enough, the statutory test is not met”. In that case the provisions of article 522 of the Romanian penal code supplemented by further information made clear that the decision to grant a retrial rests on the discretion of the Romanian Court.

In Rexha Laws LJ and Owen J considered a challenge to the compatibility of article 175(2) of the Italian Code with section 20. The court said:

The Appellant submits that S.20 sets an absolute standard from which no departure is permissible. Absent an express and unequivocal guarantee, both in respect of the right to a retrial and of the specific Convention rights applying in that re-trial, the statutory test cannot be met. S.20(8) provides an additional specific protection over and above the general protection otherwise afforded. Specific, particularised and unambiguous evidence must clearly and unequivocally confirm that the returnee will be granted the rights set out in the statute, should he exercise them. Since Parliament inserted these rights, for the test in s.20 to be met there must be an express assurance relating to them. Assumptions based on the requesting authority being a Convention signatory are not sufficient with section 20.

The Appellant seeks to contrast what he describes as on the one hand a strict approach to section 20, pointing to Bohm and to Da An Chen , with what he describes as an attempt to resolve lack of clarity.

He submits there has been either general reliance on a requesting state being a Contracting Party to the Convention combined with the provisions of Article 6 ECHR or on the domestic tribunal putting itself in the place of the court of the requesting state and attempting to assess the outcome of an application for a retrial (Ahmetaj;Rexha). He further submits that in the most recent jurisprudence the conflict for which he argues has not been addressed. Mr Watkins told us that in Rexha not only was the precise meaning of “entitlement” not considered but also no reference made to the strict approach of Bohm. We were fortunate that Mr Sternberg could reassure us that, on the contrary, the court in Rexha was well aware of the single judge Adminstrative Court decision of Bohm.

The Appellant argues that insofar as cases such as Ahmetaj, Gradica and most recently Rexha approach the concept of “entitled” in a more flexible way they have stretched normal meaning beyond its natural limit.

The evidence is said nowhere to contain an unequivocal assertion that the appellant, if extradited, would enjoy an unfettered entitlement to a re-trial, still less that any re-trial would guarantee the rights set out in Article 6(3)(c) and (d) of the Convention. Rather, the evidence demonstrates that entitlement to a retrial is anything but automatic. The evidence is said to be that there exists discretion for a judge determining an application under Article 175 and that consequently the answer to the question posed by section 20(5) is not unequivocally “yes”.

I accept that since it post-dates the deadline for lodging an appeal an application under article 175 is an out-of-time subsequent appeal lodged during the appeal phase. However as illustrated in Gradica and explained by the Court of Cassation in judgment 1805/2010, a person unaware of proceedings, tried in absentia, may obtain restoration of the term to lodge an appeal if he can show that he was not present at the original proceedings. The appellant has no further burden to discharge. Such restoration is excluded only if the judge can on the evidence demonstrate the defendant knew of the proceedings and voluntarily renounced his right to appear or to file an appeal. The judgment also reminds us that Article 175 was amended to comply with dicta of the ECHR and to add safeguards.

An insuperable difficulty confronting the appellant is that UK jurisprudence has consistently found article 175 compatible with section 20. In addition to Gradica, in Ahmetaj the court said “under Article 175(2) as amended, a defendant who is absent from his first trial will be granted what may be called a fresh merits hearing without strings or conditions unless he deliberately evaded the trial on the first occasion.”. Notwithstanding some confusion in the documents supplied by the Judicial authority, the court accepted that as the appellant had never had any contact with the Italian Judicial authorities, and always been represented by a court-appointed defence lawyer, his right to a retrial was unconditional, notwithstanding the theoretical possibility of its refusal. In Rexha the prosecutor’s office had been unable to guarantee a retrial. Once again the Divisional Court accepted that there was no basis on which the Italian Court or prosecutor’s office could resist an application for a retrial and the appellant would have the protection of his Article 6 convention rights if extradited. That the law of a requesting territory requires a requested person to apply for retrial was not found incompatible with s.20 of the 2003 Act in Benko.

These decisions in my view show a difference between on the one hand an exercise of what one might term pure discretion when considering an application for a retrial (Bohm) and the application of the law to the facts in accordance with a criminal code on the other. The latter is the approach of the Italian Court at least since Daniele v The Governor of HM Prison Wandsworth, The Government of Italy & The Secretary of State for the Home Department [2006] EWHC 3587 (Admin).

Applying my interpretation of the authorities to the facts in this case, I do not doubt that the Italian Court will comply with the provisions of its own Code and re-open the appellant’s case in the appellate phase. He is entitled to a retrial if he can show that he was absent from the original proceedings: Gradica. No more is required from the appellant. His entitlement to a retrial is excluded only if the court is satisfied, on the evidence, that he knew of proceedings and voluntarily renounced his right to appear or to file and appeal. Where there is no evidence of his knowledge there is no basis on which his appeal could be excluded. The Italian courts can be expected to apply their own law and decisions of the Court of Cassation. I am fortified in my conclusion to note that the second and third sets of further information contain assurances that the Court of Appeal of Trento in similar cases granted an out-of-time appeal under Article 175 leading, in substance, to a new trial. I remind myself too of the judgment in Case 1805/2010 which supports those assurances.

The existence of procedural steps does not remove the entitlement to a retrial. Rather, the Italian authorities must be premitted to regulate their own proceedings by imposition of their own rules. Section 20 may create entitlements, but procedural rules set parameters within which such rights are exercisable. In my view the evidence demonstrates that s.20(5) is satisfied by the provisions recited in the material provided to this court and to the District Judge. I am not persuaded that Nastase would be excluded from those protections. I conclude that the District Judge was correct to answer the question set out in section 20(5) of the 2003 Act in the affirmative.

Nor, for what it is worth, in my view does the EAW misstate the position in Italian law. Nastase relies upon the October 11 2011 statement by the Italian prosecutor as to the operation of article 175. However, the wording of Article 175(2) was included with the September 22 2011 further information from the Judicial Authority and finds a substantive echo in the subsequent further information provided by the Ministry of Justice. In my judgment there is nothing in this aspect of the appeal.

The appellant argues that he would not have the benefit of the rights in section 20(8) of the 2003 Act on return. Case 1805 confirms that a reopening of the evidence under article 603 of the Italian Code is not limitless and depends on the Judge’s assessment. The further information confirms there is no distinction between an unaware person tried in absentia and a fugitive and that a defendant in such a position always has the right to obtain renewal of the trial under article 603(4) of the Code. The conclusion of the Court of Cassation is that a person who satisfies article 175(2) also meets the requirements of article 603(4) and is entitled to a re-opening of the evidence. The judgment of the Court of Appeal of Genoa in Ahmetaj provides a practical illustration. The steps taken by the Italian court to grant an appeal amounting to a retrial in which he was represented and would be able to challenge the evidence called are clear.

A tribunal re-opening proceedings and renewing the evidence should be permitted to regulate evidence as it sees fit. Such a course would plainly be Article 6 compliant. Any concern in that regard may be raised in an appeal to the Court of Cassation as case 1805 illustrates. Consequently, I can identify no basis on which the District Judge should have found that the appellant will be denied the rights set out in section 20(8) of the 2003 Act. Neither Article 6 nor mutual trust need be prayed in aid to establish this: that the appellant meets the evidential pre-conditions to both obtaining a re-opening of the case in the appellate phase and the calling of new evidence cannot be disputed given the content of the further information of October 24 2010.

It follows that in my view theDistrict Judge reached conclusions open to him on the evidence, and not undermined by the appellant’s submissions. He correctly stated the burden and standard of proof. To state, as he did, that a reasonable doubt if raised must result in the appellant’s discharge is not incorrect, nor does it imply a presumption in favour of the judicial authority.

After a detailed review of the jurisprudence the DJ correctly observed that each challenge to Italy’s provision of retrial rights has failed. There was no evidence that Nastase had actual knowledge of the proceedings and voluntarily renounced the right to appear or file an appeal in time, which would exclude him from an application to appeal out of time. The Italian court would permit evidence to be heard at the appeal under article 603 of the Italian code and in accordance with article 6 of the ECHR.

That he was satisfied that the Italian Court would comply with article 6 of the Convention and article 603 of the Italian code was not to conflate the requirements of section 20 of the 2003 Act with article 6, except insofar as section 20(8) mirrors the requirements of article 6(3)(c) and (d). The District Judge did not use mutual trust as the sole basis on which to answer the questions in section 20 of the 2003 Act. Rather, he made findings based on the evidence.

Since in my view there is no basis on which the appellant’s application to renew the trial could be opposed or refused by the Italian Court no question of the exercise of discretion or abrogation of a right to retrial arises. The position is not materially different from that considered in Gradica and in Ahmetaj.

I would dismiss the appeal.