Case Study: Successful discharge from Italian European Arrest Warrant
Our client, Mr A, has been discharged by District Judge Fanning under Section 20(7) of the Extradition Act (the Act) from a European Arrest Warrant (EAW) issued by the Court of Appeal in Turin, Italy.
His extradition was sought in relation to alleged offences of bankruptcy fraud dating back to 1999 with a total value of approximately £140 million. Mr A was a resident in the UK but had been involved in a business transaction in Italy in a professional capacity. Despite never being notified of any prosecution taking place, he was convicted in his absence in a series of trials conducted in 2007, 2010, 2011 and 2013. Mr A only became aware of the conviction after being arrested on a previous EAW in 2017. That EAW was subsequently withdrawn after Mr A instructed lawyers in Italy to make an application to the Supreme Court to appeal the conviction. The current proceedings were initiated after that appeal was refused and a new EAW issued. That EAW confirmed that Mr A was not notified of the trial and would therefore be entitled to a retrial or appeal.
During extradition proceedings at Westminster Magistrates’ Court, defence expert evidence contradicted what was said in the EAW. The refusal of the Supreme Court to grant a retrial meant that Mr A had no further right to retrial and there was no other remedy available to him in Italy to challenge the conviction.
In response to the defence’s expert evidence, the Italian authorities accepted that the EAW was wrong. Mr A did not have any further right to retrial. They further accepted that Mr A could not be contacted during the investigation stage and there was no evidence that he had ever received any of the court summonses. Despite this, he was deemed as having been properly served according to the Italian Code of Criminal Procedure and the trial proceeded in his absence, with Mr A being represented by a court appointed attorney. The Italian authorities argued that Mr A had exercised his right to appeal when his appointed lawyers appealed to the Supreme Court after his arrest on the first EAW and that the decision in Nastase v Italy  EWHC 3671 (Admin) had previously found this ‘procedural step’ to comply with Section 20 of the Act.
In discharging the EAW, District Judge Fanning agreed with the defence argument that the appeal to the Supreme Court did not amount to a retrial or appeal under the Act, as the Supreme Court could only consider appeals on points of law or procedure. A defendant could not challenge prosecution evidence, cross-examine prosecution witnesses, give evidence himself or call any defence witnesses. It had been open to the Supreme Court to remit the matter back to the Court of Appeal for a retrial but it had refused to do so.
Mr A’s case could be distinguished from Nastase, as that decision concerned the procedure under the Italian Code for Criminal Procedure for applying to appeal to the Supreme Court (and the Administrative Court could not see any reason why the Supreme Court would refuse a retrial), whereas Mr A had taken that ‘procedural step’ and the Supreme Court had refused a retrial. It was the decision to refuse a retrial, rather than the appeal provision itself, which meant the appeal was not a retrial or appeal compatible with Section 20 of the Act, article 4A of the Framework Decision and article 6 of the European Convention on Human Rights.