Gradica v Public Prosecutor's Office Attached To the Court of Turin

For extradition following conviction in the accused’s absence, the question is whether the proposed retrial or review will provide a fair trial overall. The rights in section 20(8) of the Extradition Act 2003 are construed consistently with article 6 jurisprudence. They are not applied as literal and universal requirements divorced from the proceedings as a whole.

The court may rely on adequate assurances that the requesting state’s courts will apply Convention standards. It need not predict the precise form of the retrial. Earlier proceedings may be examined to assess whether the future process is likely to be fair. Where the requesting state provides sufficient safeguards, extradition may be compatible with both section 20 and section 21.

Robert Gradica appealed against the Westminster Magistrates’ Court decision ordering his extradition to Italy under a European Arrest Warrant. He had been convicted in absentia in 1999 and was sought to serve a sentence of seven years and two months.

It was common ground that he had neither been convicted in his presence nor deliberately absented himself from trial. The issues were whether he would be entitled to a retrial under section 20(5) of the Extradition Act 2003, whether the proposed proceedings would provide the rights specified in section 20(8), and whether extradition would comply with article 6 of the Convention under section 21.

1. The appeal was dismissed. The questions under sections 20(5) and 21 of the Extradition Act 2003 were answered in the affirmative.

2. Section 20(8), which adopts wording drawn from article 6, must be construed in accordance with the jurisprudence of the European Court of Human Rights. The governing question is whether the proceedings as a whole will be fair. The rights concerning examination of witnesses are important guarantees, but section 20(8) does not require a literal and universal application of article 6(3) detached from the overall fairness of the trial.

3. The observations in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 were confined to the cases before that court. Those cases involved untested statements which were the sole or decisive evidence. Here, the earlier proceedings contained circumstantial and identification evidence, and the identification issue had been carefully considered.

4. The court was entitled to consider the earlier proceedings because they could illuminate the approach likely to be taken at a retrial. It was not required to determine in advance what evidence would be called or what precise form the retrial would take. The European Court’s decisions in Sejdovic v Italy and Demebukov v Bulgaria supported allowing states latitude in choosing means compatible with article 6.

5. The court accepted the evidence of the Italian judicial authority. Italian law incorporated Convention safeguards, including the guarantees reflected in article 111 of the Italian Constitution. Adequate assurances had therefore been given that the appellant would receive the rights guaranteed by article 6. The appeal was dismissed.

• High Court (Administrative Court): dismissed the appeal against the Westminster Magistrates’ Court order of 12 May 2009 requiring extradition to Italy.