Gradica v Public Prosecutor's Office Attached To the Court of Turin [2009] EWHC 2846 (Admin)

[2009] EWHC 2846 (Admin)Case No CO/4754/2009IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/11/2009
Before
LORD JUSTICE PILLMRS JUSTICE RAFFERTY
Between
Robert GradicaAppellantPublic Prosecutor’s Office attached to the Court of TurinRespondent
Raphael Jesurum (instructed by HS Kang & Co) for AppellantJames Lewis QC and Ben Brandon (instructed by CPS) for RespondentHearing Hearing dates: 14 October 2009
JudgmentLord Justice Pill :
[1]Robert Gradica, an Albanian national (“the appellant”), appeals against the decision of the City of Westminster Magistrates’ Court to order his extradition to Italy. It was ordered by District Judge Riddle on 12 May 2009 on a European Arrest Warrant issued by the Public Prosecutor’s Office attached to the Court of Turin (“the Respondent”) seeking his surrender for the purpose of serving a sentence of imprisonment of seven years and two months. The sentence was imposed following convictions in his absence in 1999 for attempted murder and unlawful possession of a weapon, namely a knife. Italy is a Category 1 territory for the purposes of the Extradition Act 2003 (“the 2003 Act”) and Part 1 of the Act applies.[2]On behalf of the appellant, Mr Jesurum submitted that the judge erred(i) in finding that the requirements of section 20(5) of the 2003 Act were satisfied. The appellant would not be entitled to a retrial in the requesting jurisdiction;(ii) in finding that the requirements of section 20(8)(b) of the 2003 Act were satisfied in that the appellant would not have the right to cross-examine witnesses or obtain the attendance of witnesses on his behalf and any proceedings would, therefore, not amount to a retrial;(iii) in finding that the appellant’s extradition was compatible with his rights under article 6 of the European Convention on Human Rights, as required by section 21 of the 2003 Act. Any retrial would not comply with article 6. Before the District Judge it was argued that extradition was barred by reason of the passage of time. The judge found against the appellant on that issue and there is no appeal.[3]It is common ground that the District Judge was required to proceed under section 20 of the 2003 Act. That provides:- “(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. (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21. (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21. (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. (6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21. (7) If the judge decides that question in the negative he must order the person’s discharge. (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.”[4]As far as is material, section 21 of the 2003 Act provides:- “(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42). (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued. ”[5]It is common ground that the appellant was not convicted in his presence and that he had not deliberately absented himself from his trial. The alleged offences were committed on 6 March 1998 and the appellant and his co-accused were convicted in Turin on 17 December 1999.[6]In May 2007, the appellant was deported from the United Kingdom but returned, following the grant of a visa following his marriage to a UK resident, on 15 July 2007. The warrant was issued on 2 August 2007.[7]Reference was made to the Framework Decision on the European Arrest Warrant (2002), article 5(1) of which provides, insofar as is material:- “. . . Surrender may be subject to the condition that the issuing authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing member state and to be present at the judgment.”[8]The District Judge heard expert evidence from Ms G Fiorentino, though he had doubts, for reasons he expressed, about the extent of her expertise. She gave evidence over the course of two days. The judge referred to discrepancies in her evidence which emerged under cross-examination and analysed her evidence carefully. The witness believed that there was little or no prospect that the appellant would be granted a retrial in Italy. The right to have one is “artificial and illusory”. Weight would be given to the original finding that the appellant was unlawfully at large.[9]The judge considered written evidence from the Italian judicial authority, which was in “clear conflict” with that of Ms Fiorentino. The judge stated that he had no hesitation in preferring the position as stated by Ms Ciriaco for the judicial authority.[10]The District Judge referred to recent changes in Italian law modifying article 111 of the Italian Constitution and article 175(2) of the Italian Code of Criminal Procedure (“the Code”). He referred to and cited the analysis by Lloyd Jones J of the safeguards in Italian law in Daniele v The Governor of HM Prison Wandsworth and the Government of Italy [2006] EWHC 3587. The District Judge said:
“In that case it was concluded [by Lloyd Jones J] (para 38) ‘I am satisfied that this applicant, on his return to Italy, would be able to obtain from a court a fresh determination (both legal and factual) of the merits of the charges, where it has not been established that he had waived his right to appear and defend himself’ and (para 41) ‘I consider that there are sufficient safeguards in Italian domestic law to satisfy this court that the applicant’s extradition would not infringe Article 6 of the European Convention on Human Rights and would not be contrary to the interests of justice.”
[11]The District Judge referred to authoritative statements that the Framework Decision required co-operation between the signatories and an approach to requests for extradition in the spirit of mutual trust. As to the nature of the retrial in Italy, the District Judge stated that he could not know and should not speculate about what evidence would be called. Section 20(8) of the 2003 Act “should not be interpreted as being different from Article 6” of the Convention. “Italian courts are required to apply the principles of the Italian Constitution and the Convention”. The judge accepted the judicial authority’s assurance that “the resulting proceeding would clearly need to heed the principles of Article 111 of the Constitution”. If, to ensure a fair hearing, “it would be necessary to order the retaking of evidence to ensure that he has in fact had a fair hearing, the judge has a duty to make such an order. “In short, I am satisfied that the rights affected by Article 6, and replicated in section 20(8), will be met by the Italian judicial system”.[12]In relation to section 21, the District Judge concluded:- “I have confidence in the Italian judicial authorities to provide a trial process that is fair overall, and compliant with the ECHR.”[13]Mr Jesurum submitted that the question in Section 20(5) must be answered in the negative unless the rights specifically identified in Section 20(8) are provided. The appeal could be decided by answering the question in Section 20(5) in the negative without having to consider the availability of a retrial. Counsel gave priority to the section 20(8) issue and I follow the order he chose, though his submissions on the two points did overlap. His emphasis has been upon the allegedly limited nature of any retrial.[14]Mr Jesurum relied on the decision of the European Court of Human Rights (“ECtHR”) in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1. The court stated, at paragraph 34:- “Article 6(3)(d) is an aspect of the right to fair trial guaranteed by article 6(1), which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument. As with the other elements of article 6(3), it is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence. As minimum rights, the provisions of article 6(3) constitute express guarantees and cannot be read, as it was by the Court of Appeal in Sellick, [[2005] EWCA Crim 651], as illustrations of matters to be taken into account when considering whether a fair trial has been held. Equally, even where those minimum rights have been respected, the general right to a fair trial guaranteed by article 6(1) requires that the Court ascertain whether the proceedings as a whole were fair. Hence, in Unterpertinger v Austria 1991 13 EHRR 17 the Court held that the reading out of statements of witnesses without the witness being heard in a public hearing could not be regarded as being inconsistent with article 6(1) and (3)(d) of the Convention but it went on to emphasise that the use made of this evidence had nevertheless to comply with the rights of the defence which it was the object and purpose of article 6 to protect. This meant that, in principle, the accused had to be given a proper and adequate opportunity to challenge and question a witness against him either when the witness made the statement or at a later stage.[15]Applying those principles to the two cases before them, the court stated, at paragraph 37:- “The Court notes that in the present cases the Government, relying on the Court of Appeal’s judgment in Sellick, . . . argue that this Court’s statement in Lucà and in other similar cases is not to be read as laying down an absolute rule, prohibiting the use of statements if they are the sole or decisive evidence, whatever counterbalancing factors might be present. However, the Court observes that the Court of Appeal in Sellick was concerned with identified witnesses and the trial judge allowed their statements to be read to the jury because he was satisfied that they were being kept from giving evidence through fear induced by the defendants. That is not the case in either of the present applications and, in the absence of such special circumstances, the Court doubts whether any counterbalancing factors would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for the conviction of an applicant. While it is true that the Court has often examined whether the procedures followed in the domestic courts were such as to counterbalance the difficulties caused to the defence, this has been principally in cases of anonymous witnesses whose evidence has not been regarded as decisive and who have been subjected to an examination in some form or other. This occurred in Doorson v Netherlands (1996) 22 EHRR 330, where the applicant was convicted of drug trafficking on the basis of statements by anonymous witnesses and a witness who attended trial but then absconded. The anonymous witnesses were ultimately questioned at the appeal stage, in the presence of the applicant’s lawyer, but not the applicant, and without the identity of the witnesses being revealed to the applicant’s lawyer. The Court found no violation. It was satisfied that no violation of article 6(1) taken together with article 6(3)(d) of the Convention could be found if it was “established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities”. However, the court also recalled at paragraph 76: ‘Even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements.’” ‘Even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements.’”[16]The convictions in both Al-Khawaja and Tahery depended on the evidence by way of written statement of a single witness. In relation to the first of the cases, the court stated at paragraph 42:
“The Court is not persuaded any more appropriate direction could effectively counterbalance the effect of an untested statement, which was the only evidence against the applicant.”
In the second of the cases, the court stated, at paragraph 46:
“The right of an accused to give evidence in his defence cannot be said to counterbalance the loss of opportunity to see and have examined and cross-examined the only prosecution eyewitness against him.”
The court added, at paragraph 47, that in absence of the witness, it did not find that a warning given to the jury “however clearly expressed, would be a sufficient counterbalance where the witness’s untested statement was the only direct evidence against the applicant.” Violations of article 6 were established.[17]Mr Jesurum also relied on the decision of the ECtHR in Lucà v Italy (Application No 33354/96, 6 February 2001), at paragraph 40:
“If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later state, their admission in evidence will not in itself contravene art 6(1) and (3)(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6. . .”
[18]It was submitted that parliamentary material should be admitted to consider the effect of Section 20(8)(a) and (b). I do not accept that submission but, in any event, the last ministerial statement before adoption cited by counsel (Hansard, vol 413; col 438) was that “the wording that we adopted is drawn straight from article 6.3 of the European Convention on Human Rights, so it has an impeccable pedigree”.[19]The decisions in Al-Khawajaand Tahery were expressly confined to the facts in those cases. The statements of the court demonstrate that the overall fairness of the trial is the governing consideration. The case is not authority for the proposition that the literal and universal application of the words in article 6.3 are a necessary ingredient of every fair trial. That issue has been considered by the ECtHR in other cases.[20]In Van Mechelen v Netherlands (1998) 25 EHRR 647, the ECtHR was concerned with the use of statements made by anonymous witnesses but the statement of principle has a more general application. That court stated:
“49. . . . the requirements of Article 6 para. 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 para. 1 . . . 50. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair . . . 51. In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see the Ludi v Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, para 49). . . 54. However, if the anonymity of prosecution witnesses is maintained, the defence will be faced with difficulties which criminal proceedings should not normally involve. Accordingly, the Court has recognised that in such cases Article 6 para. 1 taken together with Article 6 para. 3 (d) of the Convention requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities. . . 55. Finally, it should be recalled that a conviction should not be based either solely or to a decisive extent on anonymous statements. . . 58. Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied.”
[21]In Sejdovic v Italy (Application No 56581/00), 1 March 2006, the ECtHR, sitting as a Grand Chamber, stated, at paragraph 127:
“In particular, it is not for the Court to indicate how any new trial is to proceed and what form it is to take. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its obligation to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded, provided that such means are compatible with the conclusions set out in the Court’s judgment and with the rights of the defence.”
In Demebukov v Bulgaria (Application No 68020/01), 28 February 2008, the ECtHR stated, at paragraph 46:
“The Convention leaves the contracting States wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6.”
[22]Van Mechelen was cited in this court in Murtati v Government of Albania 2008 EWHC 288 2856 Admin, at paragraph 20. The question to be decided is whether the trial in Italy will comply with article 6, as so construed.[23]Mr Jesurum submitted that it was not necessary for him to establish that the earlier trial had been unfair; the question is whether the retrial will be fair. What happened at the earlier trial may, in my view, throw light on the approach that will adopted by the Italian court at a retrial. We have the record of proceedings in the Court of Turin, filed on 31 January 2000. The appellant was defended in his absence by a lawyer appointed by the court.[24]The appellant was tried with Spahiu, also absent. The record is detailed and begins with this summary:
“On 6 May 1998 at approximately 7.30 in Chiera, on the corner between Corso Vittorio Emanuele 11 and Via Palazzo di Citta, Bujar Marku, an Albanian citizen, was attacked by two persons and stabbed several times”
The victim and attackers had been on a service bus and the attack occurred soon after the three men left the bus. There was substantial evidence about the attack and the two men running away quickly.[25]The victim did not give oral evidence and there is no explanation as to why he did not do so. He was interviewed in hospital and gave the names of the persons who had stabbed him, Robert Gradica and Spahiu. Some time later, when the victim’s health was better, though he was still in hospital, he confirmed his earlier statements. He also gave the names to his brother, who repeated them to the police. The victim recognised Spahiu from a photograph.[26]The court gave careful consideration to the question of identity, stating:
“Now it is necessary to deal with the reliability of the accusatory statement.”
Reliance was placed on the early disclosure of names, while the victim was on the danger list and intubated. He had known the men for some time. He had never changed his statement and did not appear to be in any doubt or uncertainty. There was no reason why he would have lied to his brother. The court considered potentially corroborative evidence. A witness heard the three men talking on the bus in a foreign language and the victim speaks only Albanian and some Italian. On that basis, the court concluded that the men were of Slavic origin. Descriptions of the two men were given by eyewitnesses and the court compared these with photographs of the defendants. A witness had taken part in a photo-identification and assessed the level of similarity between the image and Spahiu at seventy per cent.[27]The court stated:
“So we can conclude by emphasising that the descriptions provided by the witnesses are totally comparable and, in any event, reflect the physical characteristics of the two accused, thus confirming the accusatory declarations made by Bujar Marku and giving them added reliability: the two accused must, therefore, be held responsible for the crime attributed to them.”
[28]The circumstances were thus significantly different from those in Al-Khawaja. In addition to the witness’s evidence, there was circumstantial evidence in the present case and evidence of a similarity in appearances. Moreover, I comment, with respect, on the care with which the only real issue in the case, that of identification, was considered by the court. The record of proceedings conducted in the appellant’s absence does not suggest that Italian courts are unmindful of the requirement for a fair trial.[29]On the other question, whether there is a right to a retrial, this court has evidence in writing from Professor Voena, of the Faculty of Law at the University of Turin, dated 5 August 2009, to which Ms Ciriaco replied in a letter dated 15 September 2009. This evidence was not before the District Judge. Respect is due to the finding of the District Judge in favour of the respondents. This court must, however, consider the evidence for itself including the fresh evidence now available.[30]Professor Voena accepts that a defendant granted an appeal may apply for evidence to be reheard under article 603 of the Code. He claims that cases in which the adversarial hearing is renewed are “of an exceptional nature”. There is a burden on the defendant to establish the need. Everything hinges, he says, on the exercise of the discretionary power vested in the court. In the opinion of Professor Voena, the Italian legislation does not satisfy the requirements imposed by article 6 of the Convention or section 20(8) of the 2003 Act. Reliance is also placed on the failure of the co-accused Spahiu to obtain a retrial but there is insufficient evidence of the circumstances to draw any conclusion from that.[31]For the respondents, Mr Lewis QC submitted that the required safeguards are in place in Italian law. That is sufficient; it is not for the court to predict, or to lay down, what form the retrial should take. In her September 2009 statement, Ms Ciriaco, for the judicial authority, reiterates that the wording of article 175 of the Code, as amended following the decision by the ECtHR in Sejdovic, complies with the principles enunciated by the ECtHR. It allows the “unaware defendant judged in absentia . . . to be automatically granted the out of time appeal (or rather than without being forced to demonstrate that his unawareness ‘depends on’ [which I read as meaning ‘is’] his responsibility”. [My quotation marks].[32]Ms Ciriaco refers to the “principle of full evidence”. Under the Code, it is possible to convict the defendant only if full evidence of his guilt emerges. That principle influences, she states, the possibility of a new enquiry at the appeal stage:
“The repetition of the enquiry is not unqualified or automatic but it is possible when the appeal judge, unlike the first instance judge, maintains that he cannot decide on the basis of the evidence gathered. It is necessary to clarify that the need of a new enquiry occurs not only when the evidence already gathered is not clear, or when new evidence emerges, but also when, the evidence that is already gathered is clear, the taking of evidence again may lead to a different evaluation by the second judge and hence lead to a new result.”
[33]The provision in article 603(3) of the Code that the retrial is ordered ex officio “only if the judge regards it as absolutely necessary” does not, it was submitted, create a lack of compliance with article 6. Italian law must be interpreted “in compliance with the principles enshrined in the European Convention” (paragraph 5.2 of Ms Ciriaco’s earlier report). It follows, it was submitted, that in discharging his duty under article 603(3) of the Code, the Italian judge is required to apply the principles of the Constitution and the Convention.[34]Reliance is also placed on Ms Ciriaco’s earlier evidence, accepted by the District Judge, that “thanks to the ratification law, the provisions of the European Convention are in force in the Italian law”. In her second statement, Ms Ciriaco states that “the Italian Court of Cassation is progressively interpreting the new norms in such a way as to bring them as close as possible, in their concrete application, to the indications given by the European Court of Human Rights”.[35]Like the District Judge, I accept the evidence of the judicial authority. Having considered the four experts’ reports, I confess that I am less clear than I would like to be about the operation of some of the provisions described. What I regard as crucial, however, is the clear evidence that the provisions of the Convention are applied in Italian criminal trials. Notwithstanding the reservations he has expressed about its operation in practice, Professor Voena notes in his report that “the Italian system has . . . inserted a series of guarantees, literally copied from article 6 of the European Convention of Human Rights into article 111 of the Constitution”. I am satisfied on the evidence that adequate assurances have been given that, on the appellant’s return to Italy, the Italian courts will afford him the rights guaranteed in article 6 of the Convention.[36]I also agree with the District Judge that an overall view of the trial process must be taken when assessing whether there will be compliance with article 6. That is established by the jurisprudence of the ECtHR and the approach is not nullified by Al-Khawaja. Section 20(8) of the 2003 Act adopts the wording of article 6 and is to be construed in accordance with the jurisprudence of the ECtHR on that article.[37]The questions posed in section 20(5) and section 21 of the 2003 Act can be answered in the affirmative. I would dismiss this appeal. Mrs

Justice Rafferty :

[38]I agree.

Cited in 5 later judgments