[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bertino v Public Prosecutor's Office, Italy [2022] EWHC 665 (Admin) (24 March 2022) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2022/665.html Cite as: [2022] EWHC 665 (Admin) |
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
SALVATORE BERTINO |
Appellant |
|
- and – |
||
PUBLIC PROSECUTOR'S OFFICE, ITALY |
Respondent |
____________________
Stefan Hyman (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 26 January 2022
____________________
Crown Copyright ©
MR JUSTICE SWIFT
A. Introduction
"11. … I am sure that the RP demonstrated at least a "manifest lack of diligence" in moving addresses without notifying of an updated address and thus ensuring that he could not, personally, be served and notified of the date of his court hearing (but allowing service on a court appointed lawyer)."
"The person specified above is invited to declare or elect domicile in Italy under Article 161 of the Code of Criminal Procedure, and he is warned that, as he is being investigated, he is under an obligation to notify any change of his declared or elected domicile by a statement to be rendered to the judicial authority in charge pursuant to the relevant rules of procedure. The aforementioned person is also warned that if he does not notify any change of his declared or elected domicile, if his declaration or election is insufficient or not suitable, or if he refuses to declare or elect domicile, the service of any document will be executed by delivery to the defence lawyer of choice or to a court-appointed defence lawyer.
In light of the above, the aforementioned person declared
- I hereby elect domicile for purposes of service of process in Venitco (Provence of Messina), via Paolo Sindoni No. 30, Brezza Marina, with my home address, and I will be assisted by a defence lawyer that will be appointed by the court.
- This record has been kept of the above, and after reading it out and confirming it, it has been signed by the official and Salvatore BERTINO, and a copy thereof is handed over to him in the place and on the day specified above."
In short, Mr Bertino provided an address for service and stated that he would be represented in the proceedings by a court-appointed defence lawyer.
"10. I find it no coincidence that the RP left his address without notifying a forwarding address and emigrated to UK within months of being released from the police station. He did so in full knowledge that the police wanted his address so they knew where court papers could be served. I find that he left the country so that he could not be located to be served with papers /future dates for his trial."
"1. Please can you provide us with a copy of the Writ of Summons for the hearing, which was sent by the judge, and can you confirm how this was served on Mr BERTINO.
2. Can you confirm that in accordance with Article 625-ter and 629-bis of the Code of Criminal Procedure, Mr BERTINO would be entitled to a retrial if he can prove that his absence is due to his blameless lack of knowledge of the proceedings.
3. Can you also confirm that in line with Article 175 of the Code of Criminal Procedure, the time for submitting a request to lodge an out of time appeal will still start on the date of the surrender of the convicted person."
"In reply to the request of UK Judicial Authority:
(a) On 20 June 2015 Carabinieri of the Station of Bibione searched and seized computer-related material against Salvatore BERTINO, at the time an entertainer at a tourist resort.
(b) Mr Salvatore BERTINO, within the framework of these criminal proceedings, and with reference to the proceedings, that lead to the search set forth in point (a) above, at the express request of the Carabinieri of Spadafora, was invited to declare or elect domicile for future service. On 23 July 2015 he elected domicile at his located in Venetico (Messina), Via Paolo Sindoni n.30. The records of his elected domicile signed by Mr BERTINO, (of which he was given a copy), read as follows, "the aforesaid is invited to declare or elect domicile (address of service) in Italy under Article 161 of the Code of Criminal Procedure and warned that, being under investigation, he is obliged to notify any change in his declared or elected domicile by making a statement as prescribed by procedural law to the competent prosecuting Judicial Authority. The aforesaid person is also warned that should he not notify any change in his elected or declared domicile, any incapacity, insufficiency or refusal to declare his domicile, service shall be effected by delivery to defence counsel of choice or court-appointed."
(c) On 8 June 2017 a writ of summons was issued requiring Mr BERTINO to appear on 28 September 2017 before the Court of Pordenone, but the service by post of the judicial document failed because the addressee was untraceable at the address of Via Sindoni 30, Venetico.
(d) Under Article 161, paragraph 4, of the code of criminal procedure, the writ of summons was served on the court-appointed defence counsel, Avv. Di Roma, practising in Trieste, and this was done because Mr Bertino had failed to notify any change in his address.
(e) The proceedings thus started in the absence of the defendant on 28.9.2017 and then postponed until 26.2.2018.
(f) The proceedings were carried out in absentia of the defendant.
Article 420 of the code of criminal procedure reads:
"When a defendant, in custody or not in custody, is not present at the hearing and, even when impeded to do so, has expressly waived to take part, the court shall proceed in the defendant's absence. Without prejudice to Article 420 ter, the court shall also proceed in the absence of a defendant who during the proceedings declared or elected domicile…
Article 625 ter of the code of criminal procedure reads:
1. A convicted person or a person subject to a detention measure by final judgment, who was absent for the whole duration for his/her proceedings, may ask for the judgement to be overturned if he/she proves that his/her absence was due to a blameless lack of knowledge of the proceedings,
2. The request shall be submitted, under the penalty of inadmissibility, personally by the person concerned or by his/her defence counsel empowered to do so by special power of attorney to act authenticated as prescribed by Article 583, paragraph 3, within 30 days of effective knowledge of the proceedings.
In consequence, if Mr BERTINO proves that his absence at the proceedings was blameless within 30 days of his effective knowledge of the proceedings, he will be granted a retrial by the Court of Appeal and the judgment of conviction of the first instance proceedings will be overturned.
I attach hereto the requested documents."
B. Decision
"30. Section 20 of the 2003 Act represents the domestic legislature's reflection of article 4a(1). That said, it is plain that the terms of section 20, and in particular the terms of section 20(5) and (7) of the 2003 Act are not congruent with the terms of article 4a(1). That brings into play the principle of conforming interpretation. It is therefore the obligation of the English court, to interpret section 20 so as far as possible in the light of the wording and purpose of the Framework Decision in order to attain the result which it pursues.
31. In our judgment the result that is pursued by article 4a(1) is self-evident: it is to make provision to ensure that the article 6 rights of a person who is potentially subject to extradition because of a trial at which he was not present are protected. This is replicated to a substantial extent by the terms of section 20. The first question under both the article and the 2003 Act is whether the requested person was present at his trial. If he was not, there are potential article 6 concerns. Those concerns are met if he was deliberately absent, and the procedure then follows that laid down by section 21. If he was not deliberately absent, then there are potential article 6 concerns unless there has been or will be provision for a retrial. Article 4a(1)(c) deals expressly with the position where there was past provision for an effective retrial; article 4a(1)(d) separately makes express provision for a future effective retrial. Section 20 does not expressly distinguish or discriminate between past and future effective retrials: in other words, it does not expressly replicate the separate provisions of article 4a(1)(c) and (d).
32. It is therefore plain that the obligation to interpret section 20 so as far as possible in the light of the wording and purpose of the Framework Decision, in order to attain the result which it pursues, should lead to an interpretation that gives effect to both article 4a(1)(c) and article 4a(1)(d) unless such in interpretation contradicts the clear intent of the 2003 Act …
33. The clear intent of section 20 of the 2003 Act is to give proper protection to the requested person's article 6 rights. That intent cannot reasonably be said to be "contradicted" by an interpretation which allows a person to be extradited, when the only reason that he will not have the opportunity of a retrial on his return is that he had such an opportunity previously and chose not to take it. Nor is any guidance on this point to be gained from the fact that Parliament has not seen fit to amend section 20 in the light of article 4a. On the basis that our conforming interpretation is correct, there was no need for amendment, and it would be idle and irrelevant to investigate whether and if so why a decision not to amend was taken. In our judgment, for the reasons we have set out, the intent of article 4a and section 20 are essentially the same, so that an interpretation which leads to extradition on the facts of the present case goes with the grain of the legislation and does not contradict it. Indeed, the contrary reading would involve the absurd proposition that a potential extraditee can be returned if he has a right of appeal which he might waive but cannot be returned if he has already waived it.
34. We recognise that our proposed interpretation involves departure from the strict, literal or narrow interpretation of the words that the legislature has elected to use; and that it involves the implication of words necessary to comply with Community law obligations. But these are not impediments to conforming interpretation … The necessary sense can be achieved economically, as Ms O'Raghallaigh herself recognised in her written submissions, so that the subsection can be taken by implication to read "whether the person was or would be entitled to a retrial"."
"Article 1
Definition of the European arrest warrant and obligation to execute it
1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."
This establishes an obligation to surrender requested persons in response to EAWs, subject to consistency with the rights identified at article 6 of the Treaty on European Union, including the rights in the ECHR.
"Article 4a
Decisions rendered following a trial at which the person did not appear in person
1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
(a) in due time:
(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
and
(ii) was informed that a decision may be handed down if he or she does not appear for the trial;
or
(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
or
(c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person 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:
(i) expressly stated that he or she does not contest the decision;
or
(ii) did not request a retrial or appeal within the applicable time frame;
or
(d) was not personally served with the decision but:
(i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person 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
(ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.
…"
"50. Furthermore, as the scenarios described in Article 4a(1)(a)(i) of Framework Decision 2002/584 were conceived as exceptions to an optional ground for non-recognition, the executing judicial authority may in any event, even after having found that they did not cover the situation at issue, take into account other circumstances that enable it to be assured that the surrender of the person concerned does not mean a breach of his rights of defence.
51 In the context of such an assessment of the optional ground for non-recognition, the executing judicial authority may thus have regard to the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid to any manifest lack of diligence on the part of the person concerned, notably where it transpires that he sought to avoid service of the information addressed to him."
(8) | "(8) 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." |
Thus, if a requested person failed to exercise due diligence to obtain information addressed to him about his trial, and for that reason failed to receive information about his trial, that failure could be relevant to whether his surrender could be consistent with this right to a fair trial.
"30. The concept of a "manifest lack of diligence" covers the concept of "deliberate absence"; see [81] of Zagrean. It may go wider with its connotations of negligence and inefficiency; but that cannot broaden the meaning of "deliberate absence" in the Extradition Act. "A manifest lack of diligence" only illustrates one set of circumstances in which EU law permits but does not require the executing authority to order or to refuse to order the extradition of a person who was not present at his trial. Section 20 is not in conflict with it; section 20 may lawfully restrict the Framework's discretion to order extradition; it cannot and does not permit a refusal of extradition, where the article 4a bars to the refusal of extradition bite. In any event, this notion of a "manifest lack of diligence" drawn from [51] of Dworzecki , may need to be read with [52] in which the CJEU discusses the availability in Poland of re-trial rights in the sort of circumstances which arose in that case."
Ouseley J then considered circumstances in which the requirements of ECHR article 6 would be met notwithstanding that a defendant not present at his trial did not have actual knowledge of the date and place of the hearing.
"31. There is nothing in ECtHR jurisprudence to suggest that, where a defendant deliberately breaches his obligations to inform the authorities of his changes of address so as to prevent the authorities informing him of the date and place of trial, as here, a subsequent trial in his absence is in breach of article 6. That may be seen as a waiver of the right to attend his trial or as a deliberate decision not to exercise the right to attend his trial.
32. In the light of the Jones decisions, Strasbourg jurisprudence does not require waiver with full knowledge of the rights foregone, namely that the trial could proceed in his absence, for a trial in the absence of the defendant to comply with article 6. Strasbourg only required that that outcome could be "reasonably foreseen", which it elaborated no further, for a waiver to arise. What prevented a trial in the deliberate absence of Jones being "reasonably foreseen" by him was that the state of the law in England and Wales on that point was not certain, as Lord Rodger had explained. If Jones did not waive his right to attend through his deliberate absconding, it was because it was not known by anyone that a trial could be held in his absence, rather than that his knowledge of procedural law was inadequate. It may be that the notion of what could be "reasonably foreseen" was introduced to deal with the absence of an individual's actual knowledge of readily ascertainable procedural law. What could reasonably be foreseen is that which is reasonably foreseeable.
…
34. The Jones decision in the House of Lords makes clear that deliberate absconding, in breach of bail obligations, can amount to a waiver of the right to attend, or as the deliberate exercise of a choice not to attend. It may also be found in a complete indifference to the procedures which may be followed in his absence, including trial itself. In none of those circumstances would trial breach article 6.
35. In my view, and in the light of Cretu and Zagrean , the same approach applies to a failure to attend where the inability to do so is the result of a deliberate decision to breach an obligation to provide the authorities with information about changes of address, so as to prevent them actually notifying a defendant of the date and place of trial. That is how the District Judge has found Mr Dziel conducted himself and why."
"54. It cannot be assumed from the sparse information available that "proper notification about the trial date", in accordance with Polish procedure, amounted to either personal service or notification such the Appellant actually received the relevant information as to time and place of the trial; particularly in the light of Dworzecki. That case proceeded on the basis that, in respect of service of criminal process, article 132 of the Polish Code of Criminal Practice states that:
"In the event of the addressee's absence from home, the process is to be served on an adult of the addressee's household – if also absent, the process can be served on the landlord or the caretaker of the village chief – on condition they undertake to pass the process on to the addressee."
The summons was sent to the address given for service by the individual and was collected from there by his grandfather. The Court of Justice held that, for the purposes of article 4a(1)(a), that did not amount to "personal service"; and, to satisfy the second limb, the judicial authority would have to establish unequivocally that the third party actually passed on the summons … It is clear from that case that compliance with that provision of the Polish Code does not of itself unequivocally establish that the criteria in article 4a(1)(a) have been met. In the case before me, there is no evidence that article 132 is not still the relevant provision in the Polish Code; nor that it was under some other provision that the Appellant was notified of the relevant details of his trial.
55. I accept that the Appellant left Poland knowing that a suspended sentence was hanging over him and he had recently been arrested for a further offence which the authorities had indicated they intended to pursue. He was also aware that, by not keeping in touch with his probation officer and not notifying the Polish authorities of changes of his address, he was failing to comply with obligations attached to both suspension and release. I accept that, by moving to the UK, the Appellant made it more difficult for the authorities in Poland to serve him with documents relating to his trial. However, he took no steps to conceal himself or his identity in the UK; and when, in 2005, the Polish authorities went to his address they learned that he had moved to the UK three years earlier. It seems that, before then, they had taken no steps to find out where he was. Even when they found out he was in the UK, there is no evidence that they took any steps whatsoever to find out his precise address, which could have easily been ascertained from the UK authorities, e.g. the Home Office, or the UK tax authorities with which he was registered. In all of the circumstances, I am not satisfied that the Appellant's surrender would not breach his rights of defence.
56. In any event, there is no evidence at all that the Appellant was informed that a decision may be handed down if he did not appear for the trial, and so the criterion in article 4a(1)(a)(ii) was not met.
57. Therefore, on the evidence, the Judicial Authority has failed to satisfy me that the requisite criteria for notification set out in article 4a(1)(a) were met in this case. In my judgment, the District Judge was therefore wrong to find that the Appellant deliberately absented himself from his trial."
"vi) Establishment of the fact that the requested person has taken steps which make it difficult or impossible for the requesting state to serve the requested person with documents which would have notified him of the fact, date and place of the trial is not in itself proof that the requested person has deliberately absented himself from his trial.
vii) However, where the requesting authority cannot establish that the person actually received that information because of "a manifest lack of diligence" on the part of the requested person, notably where the person concerned has sought to avoid service of the information so that his own fault led the person to be unaware of the time and place of his trial, the court may nevertheless be satisfied that the surrender of the person concerned would not breach his rights of defence."
"27. For my part, I respectfully consider that the seventh proposition is sound and that the sixth proposition can be reconciled with what was said by Cranston J in Cretu at [81]. I think Hickinbottom J was simply making the point that the requesting state does not prove that an accused deliberately missed his trial just by proving that he acted evasively in an attempt to avoid receipt of trial information documents. However evasive the accused's conduct, the requesting state must still prove that it took the steps that would acquaint a non-evasive accused with the time and place of trial."
Respectfully, I agree.