“(d) Decision rendered in the absentia and: 1 . The person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia. 2. x No, the person was not in person at the hearing which led to the decision. 3. If you have marked point 2, please confirm the existence of one of the following elements. 3.1a x the person was legally summoned on May 27th 2009; June 24th 2009; September 2nd 2009, October 7th 2099, November 18th 2009, January 13th 2010, February 24th 2010, March 24th 2010, May 5th 2010, May 26th 2010, June 23rd 2010, September 15th 2010, October 20th 2010, November 3rd 2010 and therefore was informed about the date and place settled for the trial whose decision was issued and was informed that a verdict can be issued even if he doesn’t come to the trial; Or 3.1b the person was not personally summoned, but has effectively received by other communication means of an official notification regarding the date and place settled for the trial whose decision was issued so at it was ascertained without any doubt that the person knew about the settled trial and she was informed about the fact that a decision could be issued if he doesn’t come to trial; Or 3.2 x being informed about the settled trial, he authorized a defender who was appointed either by himself or ex officio in order to defend him during the trial and indeed he was defended by that lawyer at the trial. 3.3 the person was given the decision personally and he was expressly informed about his right for re-judging the case or choosing a means of appeal and for this he has the right to come and let the case, including the new proofs, being re-examined and this may have as consequence the annulment of the previous decision; and the person expressly declared that he would not contest this decision: Or the person did not asked either the case re-judgment or the promotion of a means of appeal in a due time. 3.4 x the person was not given the decision personally but: - the decision will be given to him personally as soon as possible after delivery; and - at the moment when the person will be given the decision, this person will be expressly informed about the right of case re-judgment or a means of appeal that he has the right to, where he could attend personally and that means the whole case, including the new proofs, to be re-examined and this could lead to the annulment of the previous decision; and - the person will be informed about the time interval in which he may ask the case re-judgment or the promotion of a means of appeal, that is 10 days. 4. If you have marked point 3.1b, 3.2, or 3.3 please provide information regarding the modality in which the relevant condition was fulfilled: - he benefited of an ex officio defender.”
“the person was not personally served with the decision, but - the person will be personally served with the decision without delay after the surrender, and - when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and - the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be … days. ”
“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. (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.”
“Physical or mental condition (1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. (2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him. (3) The judge must – (a) Order the person’s discharge, or (b) Adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.” (a) Order the person’s discharge, or (b) Adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.”
“The Framework Decision, the Court of Justice’s decision in Pupino and the European legal principle of conforming interpretation are not therefore part of United Kingdom law under the 1972 Act. The only domestically relevant legal principle is the common law presumption that the Extradition Act was intended to be read consistently with the United Kingdom’s international obligations under the framework decision on the European arrest warrant. But this presumption is subject always to the will of Parliament as expressed in the language of the Act read in the light of such other interpretative canons and material as may be relevant and admissible.”
“Failing their repeal, annulment or amendment, the position in respect of Title VI measures remaining in force unamended at the end of the five year period is that the United Kingdom has, under article 10(3) and 10(5) of Protocol No 36, an option to notify a blanket opt-out as from1 December 2014 with an accompanying right to apply to opt back in selectively to individual measures. If the United Kingdom decides not to notify a blanket opt-out or if, having notified one, it applied successfully to opt back in to the Framework decision of the European arrest warrant, it must accept the jurisdiction of the Court of Justice and the Commission’s right of enforcement.”
“First, section 20(3) cannot be construed in the light of FD 2009, … Secondly, it is clearly established by Calderelli and Atkinson & Benningtonthat what constitutes "the trial" for the purposes of section 20(3)is a question of fact and that in many Member States, "the trial" is a process, not just a single hearing. We think we must follow that approach. Thirdly, however, we accept that, upon its correct construction, section 20(3) can only become relevant when, in accordance with the procedures of the relevant requesting state, a "trial process" has been initiated against the requested person. Whether this "trial process" has been initiated will be a question of fact in each case. Fourthly, given the terms of section 206of the EA, it must be for the JA to prove to the criminal standard, that the requested person has absented himself from this "trial process" and that he has done so deliberately. How the requested person knows of the process is irrelevant; it is the fact of his knowledge of the process that counts. Fifthly, whether a requested person has absented himself from the trial process "deliberately" calls for a consideration of what is in the mind of that person: see Atkinson & Binnington at [40] per Maurice Kay LJ. A requested person cannot have "deliberately" absented himself from a "trial process" if he did not know that that process is taking place or is about to be started. Sixthly, we agree with Mitting J that proof of the fact that the requested person had taken steps which made it difficult or impossible for the prosecuting authorities of the requesting state to serve the requested person with documents which would have notified him of the fact, date and place of the trial or, we would add, the start of the "trial process", is not of itself proof that the requested person has "deliberately absented himself from his trial" for the purposes of section 20(3).”
“I reach the following conclusions: (a) In Section 85(3) Parliament has adopted the expression "deliberately absented himself from his trial". Consideration must be given to the concept of deliberate absence and to the concept of a trial. The Respondent has deliberately absented himself from Albania but there is no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial. (b) The word "trial" was adopted by Parliament in the context of the presence of Article 6 with its use of the word "hearing" and its reference to a right to a hearing and a right to be informed of the nature and cause of the accusation. Article 6 confers the right to a fair trial and the word "trial" would not have been used by Parliament in Section 85(3) if a wider view of absence had been intended. (c) The sub-section must be construed in a context in which capital importance is attached to the appearance of a defendant at his trial. The focus is on a specific event at which the Respondent could expect to be present. Other factors, as well as the need to facilitate extradition, are at work. (d) Parliament could have used an expression such as "deliberately absenting himself from legal process" which could, on appropriate findings of fact, include leaving a jurisdiction to avoid arrest but Parliament has not done so and the sub-section cannot be construed as if it had. The expression "his trial" contemplates a specific event and not the entire legal process. (e) In the result, I am unable to construe the words of Section 85(3) as covering the present circumstances. While the absence from the jurisdiction of Albania is established, it is not established that the Respondent left that jurisdiction, or remained in the United Kingdom, with the intention expressed in the sub-section.”
“The scheduled date of a trial may for practical reasons initially be expressed as several possible dates within a short period of time.”
“The right to a fair trial of an accused person is guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights. This right includes the right of the person concerned to appear in person at the trial. In order to exercise this right, the person concerned needs to be aware of the scheduled trial. Under this Framework Decision, the person’s awareness of the trial should be ensured by each Member State in accordance with its national law, it being understood that this must comply with the requirements of that Convention. In accordance with the case law of the European Court of Human Rights, when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her.”
“55. … a high threshold has to be crossed by the RP in showing that the risk of succeeding in committing suicide, whatever steps are taken, is great enough to amount to oppression. 56. On the available evidence I find that the RP ISat substantial risk of committing suicide if extradited; the very real attempt described and the evidence of likely deterioration in mental health if extradited satisfy me that substantial risk exists. However, despite the CPT reports and other criticisms made against the Romanian prison estate I am satisfied that the measures that will be put in place in order to cope properly with the mental condition and therefore the risk of suicide are such as to remove any substantial risk of it being successful, in combination with the presumption that a signatory to the European convention will abide by their obligations. I am satisfied that this challenge must fail in that the RP’s mental health is not such so that extradition would be oppressive.”
“19. That reference was not designed to subvert the principle identified in the same sub-paragraph that a presumption operates that an EU state will discharge its responsibilities to prevent suicide in the absence of strong evidence, by enabling an appellant to raise 'concerns' and then set off on a quest for information and assurances. A specific matter will not give cause for concern unless it has a strong evidential foundation. It is clear from the final sentence of paragraph 10 of the Judgment that an appellant has to establish that a substantial suicide risk will not be appropriately guarded against.”
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